Long-Term Unemployed & On Government Benefits

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    Trapped: Unemployed Long-Term, On Government Benefits, With No End in Sight

    By Ken K. Gourdin

    I hate Paul Krugman.1Simply seeing his picture or byline on an op-ed usually is enough to deter

    me. At most, I might read the headline. Beyond that, I know what hes usually going to say:Conservatism, Conservatives, or [Insert-Conservatives-Name-Here] is (or are) whats wrongwith America. If we could simply get rid of Conservatives and/or Conservatism, the UnitedStates of America automatically would transform overnight into a Nirvana/Utopia. So the factthat Im about to quote him here should tell you something.

    While I disagree with Krugman that inexorably increasing government spending is the magicalpanacea that will alleviate our economic woes, his description of the plight faced by the long-term un- and underemployed is spot-on. He says:

    It goes without saying that the explosion of long-term unemployment is a tragedy

    for the unemployed themselves. But it may also be a broader economic disaster.

    The key question is whether workers who have been unemployed for a long timeeventually come to be seen as unemployable, tainted goods that nobody will buy.This could happen because their work skills atrophy, but a more likely reason isthat potential employers assume that something must be wrong with people whocant find a job, even if the real reason is simply the terrible economy. And thereis, unfortunately, growing evidence that the tainting of the long-term unemployedis happening as we speak.2

    Krugman goes on to cite a study conducted by two Northeastern University researchers whotested the hypothesis that employers are less likely to hire the long-term unemployed even whentheir qualifications are better. The researchers sent out 4,800 fictitious resumes, and found thatthose who reported being out of work for six months or more got fewer calls back than thosewho were employed, even when those in the latter group were better qualified than those in theformer.3

    As Ive written elsewhere on the blog, an old Chinese proverb says, Give a man a fish, feed himfor a day; teach a man to fish, feed him for a lifetime.4Where I believe Krugman and his like-minded fellows (including President Obama) err is in thinking that the best way to solve theproblem is to keep giving away fish. As I will explain in greater detail below, while I am notagainst the government giving monetary assistance to the poor, if ones proposed solution to theproblem stops there, eventually the government will run out of fish. It would be much better tohelp the poor get their ownfish.

    There are other dimensions to this problem. I have received Social Security Disability Income(SSDI) off and on since approximately the year 2000. In that time, I have received an advanceddegree (in 2005) and have become certified as a paralegal by the National Association of LegalAssistants (in 2010). I would gladly return to the workforce if I were presented with anopportunity for which I am well suited and that matches my education, skills, and interests.

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    While I once set my sights on becoming a member of the criminal justice system and washesitant to consider opportunities outside that small qualification and opportunity window, Iwould be willing to do something I never dreamed of doing during my education, from civillitigation to transactional work, as long as such a position took notice (however slight) of the

    efforts I have made to make myself marketable in the legal field. In fact, forget legal supportwork; I would even perform manual labor if I thought I could last for any length of time in such aposition.

    In a recent column, syndicated columnist Rich Lowry tells the story of Kentucky disabilitylawyer Eric C. Conn, who has made more than $3 million a year helping claimants apply forSocial Security Disability Income. Conns practice, Lowry says, specializes in extracting (oftendubious) disability benefits for his clients from the United States government, and enrichinghimself and people around him in the process.5

    I thought that this possible Conn-job was worth a closer look. (To be fair, although Im tempted

    to point out that Mr. Conn is aptly named, since Ive never heard his surname aloud, I dontknow whether the o is pronounced like the o in on, or like the o in cone.) At any rate,leaving aside the issues of surname pronunciation and of whether someone is aptly named, Idecided to investigate Lowrys assertions further. SoI looked up and read a 2011 Wall StreetJournal report about Conn and his confederates in the Huntington, W. Va. Office of DisabilityAdjudication and Review (ODAR)by WSJ reporter Damian Paletta6, as well as the staff reportfrom the Senate Committee on Homeland Security and Government Affairs, How Some Legal,

    Medical, and Judicial Professionals Abused Social Security Disability Programs for theCountrys Most Vulnerable: A Case Study of the Conn Law Firm.7

    The latter report was issued pursuant to a hearing that was held on October 7, 2013. To be fair,although Paletta cites the high approval rate of disability appeals among a small number ofadministrative law judges (ALJs) who hear them7, these sources present little (if any) otherevidence that the problems they discuss are widespread or systemic (as the subtitle of the latterreport indicates). Even if these problems occurred in only one office, however, thats badenough: this isolated problem resulted in billions of dollars in benefitsbeing awarded to peoplewho failed adequately to show that they deserve them, but the government, because of dueprocess issues, likely will have a difficult time revisiting (and revising) the decisions to awardthose benefits.

    Still, no advocate, however persuasive, could succeed in winning benefits for his client if nojudge were receptive to his arguments that such benefits should be awarded. (Ill use the termclaimant representative, since one need not be an attorney to represent clients [claimants] in

    proceedings conducted before ALJs in the Social Security Administration.)

    And Conn found a particularly receptive listener who was highly sympathetic to his arguments(such as they were) in the person of one particular ALJ at the Huntington ODAR, Judge DavidB. Daugherty. Judge Daugherty apparently feels that many of the ALJs who hear appeals ofdisability claims which are denied at lower levels of the SSA are, unlike himself, too tight fisted

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    and should have been more generous, as, according to Paletta, he once reportedly groused to acolleague, They act like its their own damn money were giving away.8

    Daugherty is (in his case, was) far from the only ALJ at the SSA who has been generous with thegovernments (read, the taxpayers) money, however. The WSJ report also notes, In the first

    half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heardjust a handful of cases. More than 100 awarded benefits to 90% or more of applicants, accordingto agency statistics.9

    In recent years, there has been a sharp increase in the number of people applying for benefitswithout a corresponding increase in staff to handle the increased workload. This has led to abacklog of applications for, and increased wait times for decisions regarding, disability benefits.The Committee Staff Report notes:

    Once the Senate confirmed [incoming Social Security Administration]Commissioner Michael Astrue, SSA began developing a plan of action, which it

    made public in September 2007. In short, the plan involved asking employees todo more[, and to do it] faster. The goal was to ensure more cases were heard eachyear by spending less time on each case.10

    The report also notes, however, that the concern of SSA decisionmakers for speed was not matchedby a corresponding focus on quality:

    At the same time [as SSA implemented the plan for clearing the backlog], however,questions were being raised whether the backlog plan was as successful as itappeared. The plan put enormous pressure on SSAs components to post big

    numbers, which they did. In at least some instances investigated by the Committee,though, agency employees appear to have done so by cutting corners and reducingthe attention given to each case and issuing questionable decisions.11

    Judge Daugherty, especially, essentially was a rubber stamp. The Committee Staff Report notes:

    During 2010, the last full fiscal year in which he decided cases, Judge Daughertywas the third most productive ALJ [in the Social Security Administrations appealssystem], deciding 1,375 cases and awarding benefits in 1,371 of theman approvalrate of 99.7 percent. [Footnote omitted.] In 2011, he decided 1,003 cases, awardingbenefits 1,001 times. [The average approval rate for ALJs agency-wide isapproximately 62 percent].12

    Indeed, the concern of would-be-whistleblower employees over questionable methods anddecisions was proven well founded by Daugherty himself, who freely admitted cutting corners(not to mention encouraging others to do so). The Committees report noted his response to afellow ALJs concerns over his methods, noting that when this ALJ attempted to raise thoseconcerns with Daugherty, Daugherty told him, Youre just going to have to learn which corners

    to cut.13

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    One of the corners Daugherty cut was to severely shorten the length of his hearings. Hearingsoften are scheduled at the ALJ level to provide claimants the opportunity to present evidence thatthey meet the requirements to receive benefits under federal disability programs. Although suchhearings normally last 45 minutes to an hour, Daugherty scheduled so-called rocket dockets inwhich he held up 20 hearings in a day, fifteen minutes per hearing.14

    Interestingly, according to the WSJ report, one of the reasons Daugherty proffered for holdingrocket dockets is because he has dyslexia. For that reason, he said, he preferred to follow atimetable in which he holds many hearings over a few days each month rather than holding a fewhearings each day. Holding hearings within just a few days allows me sufficient time toreview and prepare for [them], resulting in full and complete knowledge of the documents in thecase prior to hearing, he added.15Seemingly, it would make more sense that most people, even(and perhaps especially) those who are dyslexic, would suffer from the opposite problem,especially if the facts of many of the cases are similar (as disability claims likely would be).Attempting to review too many cases in too short a time might cause most people to confuse thefacts of one case with those of another.

    Another of the corners Daugherty cut was that, for the vast majority of claims he considered (andI use that term loosely), he never bothered to hold a hearing at all. The Committee Staff Reportsays this about cases without a hearing:

    Part of encouraging judges to decide a higher number of cases included allowingALJs to review cases to determine if they could be decided on-the-record(OTR) based upon medical evidence in the case file without an ALJ hearing. . . .[I]t appears this policy was abused in order to decide a higher-than-average volumeof cases with a minimal level of effort and scrutiny.16

    One of the witnesses who testified before the Homeland Security and Governmental AffairsCommittee as to the potential for abuse in the on-the-record process is Judge Debra Bice, who atthe time of her testimony was the SSAs Chief ALJ. Bice notedtwo problems with the process.One is that an ALJ may miss an opportunity to hear crucial evidence if he foregoes theopportunity to hear from a claimant firsthand; and the other is that if an ALJ screens cases andcherry-picks (my term) those that are easiest to decide by simply doing so on the record,claimants with more complex cases (who are, many times, most in need of an expeditiousdecision) are left waiting.17

    Another of the corners Daugherty cut was inordinately relying on disability evidence which hadbeen supplied by claimant representatives (especially by Conn). One form used by ALJs todecide eligibility for disability benefits is called a Residual Functional Capacity (RFC)evaluation. When a person claiming a physical or mental impairment applies for disabilitybenefits, an evaluator (in the case of a claimed physical disability, a physician; and in the case ofa claimed psychological disability, a psychologist or other mental health professional) issupposed to examine the claimant to determine the nature and extent of his disability, and shouldcomplete the form accordingly.

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    Rather than having the evaluator complete the form, Conn did so. Congressional committee staffdiscovered that Conn supplied doctors evaluating his clients who claimed physical disabilitieswith one of fifteen pre-filled, boilerplate (my term) versions of the physical RFC form, and hesupplied psychologists evaluating his clients who claimed psychological disabilities with one offive-prefilled, boilerplate versions of the physical RFC form. While because each individual has

    different abilities and ailments, and the forms require a complex set of data, finding two RFCsexactly alike should have statistically been an extremely rare occurrence, this happenedfrequently with Conns clients.18

    In a letter to the Senate Permanent Subcommittee on Investigations, Conn attorney PamelaMarple attempted to defend Conns use of supplemental medical opinions: In certain cases, shewrote, the Conn Law Firm procures a supplementalmedical opinion[bold italics in original] inorder to advocate for its client and explain why the SSA record supports a favorable decision.18But, as we have seen, it was Conn (rather than any of the medical or psychology experts heconsulted) who provided the opinion; the expert merely signed the boilerplate form provided byConn, and it was prepared without regard to any other information (information which may well

    have conflicted with it) in the SSA record.

    Nor were RFC evaluations the only evidence Conn provided to Judge Daugherty. Whilepreparing the forms included at least the perfunctory involvement of a third party, in many cases,Conn manufactured medical evidence from whole cloth without anyone elses involvement at all(at least when it came to interpreting the evidence). Conn was a high-volume user of a particularmedical imaging clinic. In an effort to bolster their disability claims, he routinely sent claimantsto this establishment for x-rays. However, rather than allowing the professional staff at the clinicto interpret the x-rays, in the orders he provided to the clinic, Conn emphasized, WE DO NOTWANT THE FILMS READ BY ANYONE!!!! [Emphasis in original, footnote omitted.]19Claimants then would return to Conns office with the x-rays, where he used information gleanedfrom the Internet to write de...

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