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

By Ken K. Gourdin

I hate Paul Krugman.1 Simply 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 he’s usually going to say:“Conservatism, Conservatives, or [Insert-Conservative’s-Name-Here] is (or are) what’s 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 fact

that I’m about to quote him here should tell you something.

While I disagree with Krugman that inexorably increasing government spending is the magical panacea 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 whocan’t 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 I’ve 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.”4 Where I believe Krugman and his like-minded fellows (including President Obama) err is in thinking that the best way to solve the problem 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 one’s proposed solution to the problem stops there, eventually the government will run out of fish. It would be much better tohelp the poor get their own fish.

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 a position.

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 Secur ity Disability Income. Conn’s 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 I’m tempted

to point out that Mr. Conn is aptly named, since I’ve never heard his surname aloud, I don’tknow 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 Lowry’s assertions further. So I 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 theCountry’s 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, that’s badenough: this “isolated” problem resulted in billions of dollars in benefits being awarded to peoplewho failed adequately to show that they deserve them, but the government, because of due process 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 no judge were receptive to his arguments that such benefits should be awarded. (I’ll use the term“claimant 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 it’s their own damn money we’re giving away.”8

Daugherty is (in his case, was) far from the only ALJ at the SSA who has been generous with thegovernment’s (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 heard just 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 a backlog 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 matched by 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 SSA’s 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 Administration’s appealssystem], deciding 1,375 cases and awarding benefits in 1,371 of them – an approvalrate of 99.7 percent. [Footnote omitted.] In 2011, he decided 1,003 cases, awarding benefits 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 Committee’s report noted his response to afellow ALJ’s concerns over his methods, noting that when this ALJ attempted to raise thoseconcerns with Daugherty, Daugherty told him, “You’re 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” in

which 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 holding“rocket 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.”15 Seemingly, 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 SSA’s Chief ALJ. Bice noted two 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 and“cherry- 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 had been 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 disability benefits, 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 Conn’s clients.18

In a letter to the Senate Permanent Subcommittee on Investigations, Conn attorney PamelaMarple attempted to defend Conn’s use of supplemental medical opinions: “In certain cases,” she

wrote, “the Conn Law Firm procures a supplemental medical opinion [bold italics in original] inorder to advocate for its client and explain why the SSA record suppor ts a favorable decision.” 18 But, 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. While preparing the forms included at least the perfunctory involvement of a third party, in many cases,Conn manufactured medical evidence from whole cloth without anyone else’s 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.]”19 Claimants then would return to Conn’s office with the x-rays, where he used information gleanedfrom the Internet to write descriptions supposedly interpreting them.

Another way Daugherty cut corners was by inappropriately colluding with claimantrepresentatives, particularly with Conn. One way the judge colluded with Conn is by telling himwhat information he needed in order to approve claims. Each month, Daugherty provided Connwith a list of claimants whose applications he intended to approve, known by personnel inConn’s office by Daugherty’s first two initials as “DB Lists.” The “DB Lists” included notationsas to what type of evaluation he needed in order to approve the application for benefits. Forexample, the list might contain the notation “Physical,” “Mental,” “Either,” “None,” or “Both” by a particular claimant’s name. Or, the notation next to some names simply said, “Whatever

Eric [Conn] wants.”18 Whereupon Conn obligingly provided one of the boilerplate RFC forms previously mentioned. Daugherty also infringed on the independence of his judicial colleagues by revisiting cases in which they had already denied disability claims.

Nor were RFC evaluations the only documents Conn prepared for others to sign. Another wayDaugherty colluded with Conn is by allowing Conn to draft, in whole or in part, the decisionsDaugherty signed. As one measure used in an effort to clear its backlog of pending claims, theSSA instituted what it calls “Findings Integrated Template” (or “FIT”) decisions, which alreadyincluded the elements necessary to find that a claimant is disabled and, thus, qualifies for



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benefits. The Committee Staff Report indicated that FIT decisions often involved collaboration between judges and claimant representatives, after which the representatives would draftdecisions for ALJs using the language the ALJ suggested.20 While it is not uncommon in thelegal profession for attorneys to draft documents for judges to sign, and while hearings beforeALJs to hear Social Security claims are not adversarial in the traditional sense, any ex parte

(only one side heard from) collusion between an attorney and a judge before a judge had heard amatter in court (or, in the case of Social Security claims, at a hearing) would be highly improper.And while other documents, such as warrants and orders, may be drafted by attorneys for judgesto sign, it is all but unheard of for an attorney who is not one of the judge’s clerks to draft an

opinion for the judge to sign.

In summary, Judge Daugherty cut numerous corners in an effort to appear productive and to“help” the SSA clear its backlog of disability claims in at least the following four ways:Instituting “rocket docket,” perfunctory hearings; deciding thousands of cases on the recordwithout holding hearings at all; inordinately relying on evidence (evidence in which there oftenwas little variation, except for changed names and Social Security numbers — if the evidence

wasn’t manufactured outright by Conn, such as the x-ray interpretations) provided by claimantrepresentatives; and inappropriately colluding with claimant representatives in drafting opinions.

In return for Mr. Conn making his job so much easier, Judge Daugherty likewise extended preferential treatment to Mr. Conn, as well, in violation of numerous SSA policies. For example,to prevent allegations of favoritism, the SSA has a strict judicial rotation policy; in order toensure fairness to applicants, it has a policy that oldest claims are to be heard first; and in orderto ensure that applicants are not unduly inconvenienced, it has a policy that claims are to behandled by the office in closest geographical proximity to them. However, all of these policieswere violated for Conn.21

In a recent Op-Ed submitted to (but declined for publication by) The Tooele Transcript-Bulletinin Utah, my local semi-weekly newspaper, I recently had this to say about being a recipient ofgovernment benefits while also being among the long-term unemployed:

I receive Social Security Disability Income. I recently filled out a form to have myeligibility reviewed, I used a space that was meant to allow me to elaborate on previous answers to request further assistance, instead.

“Provided I could secure employment that makes appropriate allowance for mydisability,” I wrote, “I would love to work. But I need assistance reentering the

workforce.”

Because it wasn’t responsive to any of the questions on the form, that “answer” was

ignored. Some bureaucrat reviewed my form, saw that I gave all of the “right”answers to the actual questions, and approved me to continue receiving checks.

I completed my professional education in good faith, fully intending to find a job – preferably in my field, but outside it if necessary. But the authority responsible for



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licensing the members of that profession denied me the license necessary to practiceit.

And even if I settle for something outside of my desired profession, humanresources conventional wisdom allegedly is that anyone who has been unemployed

for longer than six months need not apply. (I don’t know what that now-sizeable proportion of the population, which includes me, is supposed to do instead.)

An explanation about the bio that follows this column is in order. Yes, I amcertified as a paralegal by Tulsa, Okla.’s National Association of Legal Assistants.Unfortunately, I have had difficulty finding work in that field (not to mention inany other).

Probably because no one in Washington is currently running for office, there is littleconversation right now about what government might do to facilitate job creation.(That hasn’t happened since before the 2012 election.) Apparently, Obama and his

team have settled on job creation as a sales pitch.

Whatever we want to do, they apparently have said, we’ll just say that it creates

jobs. For example, giving people public benefits creates jobs; extending theunemployment benefit period creates jobs; and healthcare reform creates jobs.

On the other hand, public benefits (such as food stamps, disability, Medicare, andMedicaid) have exploded under Obama, while the labor force participation rate (thenumber of people who have, or are seeking, jobs) has plummeted. If the latterstatistic were as high now as it was in 2009, the unemployment rate would be over11 percent.

If you think such criticism of Obama is unfair, you might be right: the only jobsgovernment can create are government jobs. (Obama has created plenty of those.)On the other hand, government can do a lot to interfere with private sector jobcreation, such as enacting difficult new laws and regulations. (Obama has done plenty of that, as well.)

An old proverb says, “Give a man a fish, feed him for a day; teach a man to fish,

feed him for a lifetime.” The social welfare approach favored by Obama involves

giving that man fish every time he runs out; an insurmountable difficulty is the lackof an inexhaustible source.

I’ll take a job over a check any day. As much as I appreciate the “help,” PresidentObama, I’d rather not need it.

Ken K. Gourdin, Tooele, is a certified paralegal. 22

And of course, although I did not address this problem in the Op-Ed, there is the issue of my being deemed overqualified. I’m in a damned-if-I-do, damned-if-I-don’t position: if I do list my



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law degree on my resume for a position which does not require it, hiring authorities will say I’m

overqualified and will throw out my application. (I wish —and I’ve even told people this in a

couple of job interviews after it became apparent I wouldn’t get the position— that hiringauthorities would let me decide whether I’m “overqualified.”) Conversely, if I don’t list my law

degree on my resume for such a position, that leaves a several-year “gap” in my history (which

will probably cause hiring authorities to pass me over anyway).

Mr. President, as I said in the foregoing Op-Ed, I very much appreciate your desire to give me allof the government’s fish you can. But, while I have been through no small degree of trauma—

both physical and psychological — in my life, there is nothing as soul-deadening as being amongthe long-term un- and under-employed while sucking on the government teat with no prospectsfor change in that state of affairs in sight.

As I also said in the foregoing Op-Ed, however, I’d much rather be working (unlike many of Mr.Conn’s clients, apparently). Indeed, I’m not sure which fact to be more upset about: the fact that

so many people have gotten benefits to which they likely were not entitled, or the fact that I have

few (if any) prospects for getting off of those benefits anytime soon, even though I am eligiblefor them.

END NOTES

1. Please don’t get the wrong idea: I don’t hate him the way I hate cauliflower, or annoying pop -up adswhich derail my reason for visiting a particular Web site (particularly if I don’t have the option of

clicking somewhere to get rid of them), or (as an ardent Utah Jazz fan) the Los Angeles Lakers, or . . . sin. If Mr. Krugman and I were to avoid politics and economics as topics of discussion, we might evenhit it off as dinner or drinking companions (although I’d have ginger ale, thanks). While generally

actively avoiding Krugman, I read other people even if I know it’s likely I’ll disagree with them because

they might surprise me: at the very least, they’ll make me think. I find Krugman, on the other hand,

overwhelmingly predictable, so the fact that I read his work on this occasion should tell you something.

2. Paul Krugman (April 21, 2013), “The Jobless Trap,” The New York Times, accessed on line athttp://www.nytimes.com/2013/04/22/opinion/krugman-the-jobless-trap.html?_r=0 on October 26, 2013.

3. See Id.

4. Ken K. Gourdin (January 5, 2013) “No Matter How Many of His Detractors Were Convinced Otherwise,

Governor Romney Sincerely Wanted to Help the Middle Class” (Blog post) last accessed on line at thefollowing address, http://greatgourdini.wordpress.com/2013/01/05/romney-wanted-to-help-the-middle-class/, on March 18, 2014.

5. Rich Lowry (October 15, 2013), “Profiting from the welfare state,” Jewish World Review, accessed on lineat http://www.jewishworldreview.com/1013/lowry101513.php3#.Umw1Jk3nYqQ on October 26, 2013.

6. Damian Paletta (May 19, 2011) “Disability Claim Judge Has Trouble Saying ‘No’,” The Wall StreetJournal, accessed on line at the following address on March 11, 2014:http://www.online.wsj.com/news/articles/SB10001424052748704681904576319163605918524.

7. Committee Staff Report (Hearing held October 7, 2013) “ How Some Legal, Medical, and JudicialProfessionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case

Study of the Conn Law Firm,” Washington, DC: Committee on Homeland Security and GovernmentalAffairs, United States Senate, accessed on line at the Committee’s Web site at the following address on

http://www.nytimes.com/2013/04/22/opinion/krugman-the-jobless-trap.html?_r=0


http://greatgourdini.wordpress.com/2013/01/05/romney-wanted-to-help-the-middle-class/




http://www.jewishworldreview.com/1013/lowry101513.php3#.Umw1Jk3nYqQ



http://www.online.wsj.com/news/articles/SB10001424052748704681904576319163605918524







