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I am honored and pleased to have been invited to present testimony to the Subcommittee.
The opinions I express during my testimony and in this Statement are solely my personal opinions. I do not speak for the
I am not affiliated with any political party.
Since my appointment as a U.S. administrative law judge (ALJ) in
From 1988 until my appointment as an ALJ during
From 1976 until my appointment as a
I served as National Grievance Chair of the
I have been involved in the medico-legal field my entire legal career.
To assess what potential remedies might be available to
(1) The current average value of a disability award is approximately
(2) The SSA management currently stated "goal" or "expectation" is that every ALJ should issue from 500 to 700 legally defensible decisions per year. When an ALJ issues 500 decisions valued at approximately
(3) Representatives (attorneys and non-attorney representatives) involved in the disability system are paid in excess of
(4) All of the "stakeholders" identified above (claimants, attorneys, non-attorney representatives,
(5) A disability award is in reality a pension for life. Only 3% of claimants placed on disability ever return to employment.
(6) Almost all claimants are now represented in the disability determination process by attorneys or non-attorney representatives. Representation commonly starts with the attorney or representative going to a claimant's home and completing the claimant's disability application and supplemental documentation using the Internet.
(7) There is no economic reason for a claimant and representative not to file a disability application. The cost of initially processing the claimant's application, developing the record (wage and resource development, vocational history, and similar information), obtaining medical records and procuring consultative medical examinations is paid for by taxpayers.
(8) For the past six (6) years n1, SSA has focused on reducing the backlog of disability applications to the exclusion of almost every other program consideration, including correct application of the law in the disability determination process and Continuing Disability Reviews (CDRs) (both medical and work related) that recover
The operative factors during the past several years described above suggest several questions that should be asked:
(1) Is SSA managing the disability system for the primary benefit of genuinely disabled individuals and taxpayers or has the disability system became a "cash cow" for other "stakeholders" (attorney and non-attorney representatives, medical providers paid through the
(2) If a single "disability advocacy" business can collect in excess of
(3) Did SSA management intentionally adopt or implicitly approve a policy now referred to as "paying-down-the-backlog" in order to reduce the backlog?
(4) Was the development of "billion dollar judges" in the disability system supported and encouraged by SSA management as a means to "pay-down-the-backlog"?
During 2006, three attorneys and a supervisor in the
SSA OIG Audit Report A-12-07-27091 (
(5) With knowledge of SSA OIG authority to address fraudulent payment of claims, why did SSA management not curtain the activities of the "billion dollar judges" who were revealed during the past several years issuing thousands of pay cases?
(A) HOCALJ Charles Bridges,
(B) During 2010, SSA management assigned
(C) During 2011, SSA management assigned
(D) News sources during
"...from 2005 to 2008, Charleston ALJ Harry Taylor decided twice the number of cases compared to his counterpart judges. And, many of his decisions were made without ever conducting hearings. Taylor decided a total of 4,091 cases over the 4-year consecutive time period noted above. Out of that, he only denied 173 of those appeals or 4.25%. Now, in the most recent published ALJ Disposition Data from
Reportedly, like former ALJ Daugherty's [
(E) During Fiscal Year (FY) 2011, SSA management assigned ALJ Frederick McGrath,
At the Subcommittee hearing,
"Allegations both of "paying down the backlog" and fraud in the disability system have appeared in the media from time to time. These allegations are based mostly on anecdote and innuendo, and unfairly diminish our accomplishments the past five years." Emphasis added. See page 3 and page 8 of written testimony.
However, Senator Coburn's Minority Staff Report stated that a single ALJ,
"I was trying to keep up the number of dispositions for the office,"
In the decisions issued by ALJ O'Bryan, "...instead of precisely identifying a claimant's disabling condition, ALJ O'Bryan typically wrote a long list of maladies, followed by "etc., etc., etc." See page 73 of Subcommittee Report.
(6) Why does SSA apparently continue to inform attorneys and non-attorney representatives that withholding material evidence that may be adverse to the claimant (that is, suggest the claimant is not disabled) is permissible?
SSA is absolutely incorrect. An attorney cannot conceal material evidence indicating that a claimant is not disabled and permit an ALJ--based on an incomplete and misleading record--to erroneously award
Senator Coburn stated in his
"...Binder & Binder firm withheld medical evidence from SSA that could prove their clients should not receive disability benefits. Binder & Binder allegedly engaged in this practice, even though making false statements and misrepresentations or omissions to receive disability benefits are prohibited by the Social Security Act and subject to civil and criminal penalties. See Social Security Act, 42 U.S.C. 1320a-7a; 42 U.S.C. 408."
"Therefore, I request that SSA perform full medical continuing disability reviews ("CDRs") on all current disability beneficiaries--both
<p>(7) Why did SSA agree to a proposed settlement agreement in the Padro, et al v. Astrue, Civ. No. 11-1788 (
If ALJs become the subject of "class action" litigation (not only directly against the ALJs but indirectly against the agency as proxy) asserting "general bias" based on allegedly lower-than-average ALJ allowance rates, similar "class actions" will be filed all over the country--at both federal and state levels. The five (5)
For your convenience, I have pasted immediately below the substantive portion of my
Padro, et al v. Astrue, Civ. No. 11-1788 (
The stated purpose of UJC as expressed on its website is as follows:
"For 29 years, the
As far as "systemic advocacy" is concerned, UJC states on its website "[W]e assist our clients on numerous levels, from one-on-one legal advice...to filing class action lawsuits to bring about systemic change." See http://www.urbanjustice.org/ujc/about/hub.html.
The UJC 2012 Annual Report posted on its website indicates that the
Goldman Sachs Gives
NYC Criminal Justice Coordinator
The UJC 2011 Annual Report posted on its website indicates that the DOJ "Legal Assistance for Victims" donated in excess of
Why are DOJ, other federal agencies like the
The Padro, et al v. Astrue proposed settlement agreement provides that SSA will pay UJC
"Systemic advocacy" as practiced by UJC appears to involve repeated and overtly officious encouragement of litigation resembling barratry. "Political organizing" and "systemic advocacy" as practiced by UJC serves no discernible non-political public purpose and bestows no general benefit justifying significant and recurring contributions of taxpayer funds by DOJ to UJC.
The financial relationship between DOJ and UJC represents a direct and patent conflict of interest, or--at minimum--creates an inference and appearance of impropriety requiring full disclosure of the financial and business relationship of DOJ and UJC to the court, all parties involved in this "class action" litigation, the five (5)
Padro, et al v. Astrue is a class-action in which the proposed settlement agreement of the parties: (1) will impose significant costs upon taxpayers and the disability system by requiring the rehearing of approximately 4,000 cases decided by these five (5)
My complaint is based on alleged violation of law, regulation or rule, gross mismanagement, gross waste of taxpayer funds and abuse of authority by both SSA and DOJ management officials.
CORRECTIVE ACTION REQUESTED
Once the relationship of DOJ and UJC has been thoroughly investigated:
(1) OSC should take whatever action is warranted to remedy any violation of law, regulation or rule, gross mismanagement, gross waste of taxpayer funds or abuse of authority by SSA and DOJ management officials, and
(2) OSC should report the findings of its investigation to all parties involved in the Padro, et al v. Astrue "class action" litigation, the five (5)
It should be noted that a "fairness hearing" as required by Fed.
All counsel in the Padro, et al v. Astrue "class action" were served with a copy of my
(8) Why did SSA agree to the publication of SSR 13-1p as part of the proposed Settlement Agreement entered into in the Padro, et al litigation?
SSR 13-1p [6168 Fed. Reg. Vol. 78, No. 19 (
AGENCY DISCIPLINE THEN BAR REFERRAL
Recently, one of our administrative law judges recommended a relative to a disability law firm for a non-paid internship. The disability law firm has had cases before the judge and will likely have future cases before the judge. The internship was intended to provide experience to the relative to enhance his qualifications for a contract hearing reporter position with the agency. Ultimately, this matter was investigated and the judge was disciplined by the agency. Although some of the facts are in dispute, the judge believed the matter was closed and intended to move forward. Thereafter, however, the Chief Judge apparently felt that the government's punishment was not severe enough. Thus, she filed a Memorandum of Complaint with the judge's state bar asking that they investigate the matter. In a letter attached to the complaint, the Chief Judge set forth arguments as to how the judge's alleged conduct violated specific sections of the Code of Judicial Conduct. What is not said in the letter is that some of the facts are in dispute...
Finally, the "class action" lawsuit involving five (5) ALJs assigned to the
The Model Code of Judicial Conduct (MCJC) should be adopted by the agency as the standard of conduct applicable to ALJs.
I would be glad to provide specific long-term and short-term recommendations to address the issues raised herein if requested.
The Model Code of Judicial Conduct (MCJC), Canon 1 provides "A Judge Shall Uphold the Integrity and Independence of the Judiciary." The
I am here today because of those ethical responsibilities.
n1 Commissioner of
n2 Currently, the contingency fee authorized by statute is a maximum of
n4 See 42 U.S.C. 1320a-8 and 20 CFR Part 498.
n5 The Oregonian in its
Read this original document at: http://oversight.house.gov/wp-content/uploads/2013/06/Butler_Statement_2013_06_271.pdf
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