Monthly Archives: February 2014

So … I’ve been thinking about what you said …

bigstock-crazy-man-39709744A reader of the Dunk Tank submitted a pointed, insightful comment in response to Sochi Security.   So interesting a comment … it shouldn’t be buried in the comment graveyard.

Here it is.

You make a good point about claimants wishing to present a certain image via social media.  But doesn’t an individual’s unwillingness or inability to present the truth in one forum have a bearing on his/her reliability in another forum?

More to the point, why is a claimant who is an unreliable autobiographer on Facebook any more credible when he/she appears in a private hearing before an administrative judge?  Doesn’t the incentive for pecuniary gain during a hearing outweigh the natural tendency to minimize one’s limitations?

I realize that the financial stakes are modest compared to full-time, middle-class wages, but presumably every disability applicant has decided that even modest benefits are preferable to no benefits.  Under the circumstances, why is “I never leave the house and can’t lift a gallon of milk” more reliable than a photograph of someone giving a child a piggyback ride at Magic Kingdom?

I’m uncomfortable with the notion that we should take self-reports at face value only when they are consistent with disability, because it presumes that rational-yet-proud people would never overstate their limitations for money.

First of all, as I said in Thank you, Mr. Juhoff … and all the Mr. Juhoffs, bigstock-Happy-Black-Woman-12039302I am extremely pleased with the caliber of comments and questions Disability Dunk Tank receives.   Whether publicly posted, or privately emailed to disabilitydunktank@yahoo.com, absolutely each one has been interesting, thought-provoking, and respectful.

I am heartened by the vigorous, skillful discourse occurring here while the cacophony of crazy about Social Security disability rages everywhere else.

But I digress.

I replied with:

Thank you so much for your thoughtful comments, and pointed questions.  I so appreciate your willingness to engage in this important conversation.

I agree that judges should not take self-reports at face value only when they are consistent with a disability.  Absolutely not.  My concern is that a photograph of ‘someone giving a child a piggyback ride at Magic Kingdom’ would be so prejudicial as to be given controlling weight in the face of other important evidence – but evidence that is much, much more difficult to comprehend, like medical records.

bigstock-concert-lighting-against-a-dar-38587648The photograph seems to speak volumes about the life, but in the end, a photograph is a snapshot of a moment without context.  The photograph doesn’t speak to the moments before, or the moments after.

With considerable frequency I encounter family members of disabled people who encourage the disabled person to get out of the house, go to the grocery store, go with the family to the zoo … those kinds of normal things.  And the disabled person will, with varying degrees of cooperation, play along.

One of the first commenters on this blog was a man who both worked at Social Security and who had a disabled son, and wrote about that push-pull of knowing full well what needed to be proved to win a disability case, but who pushed his child toward wellness and building on strengths as much as possible … all while knowing in his heart of hearts that his boy was disabled and qualified.

Let me just re-post his comment.  He said it so well:

I have to say that I’ve been on both sides.  Taking claims for years, doing support work in Baltimore lets me say you’ve described the business of disability.

We have law, regs, OIG audits that insist of an impartial, repeatable process.  And people who follow the laws, rules, regs and process.  It’s a job, there are pressures, if not actual quotas and the personal aspect is hard to keep; Getting involved with claimants is bad for a CR.  So the dehumanization of the claimant is almost inescapable.   We can’t approve you because we like you or your story moves us, we need “objective” proof.

But as a dad who files for his son, there was this moment of dissonance as I, the savvy dad, focused on Listings, highlighted proofs I obtained, prepared a package of evidence that linked to the listings, that answered the questions about ADL even before they were asked, and answered them in a form DDS employees understand.

Father Helping Disabled Son Walk In The Ocean Waves On BeachI was able to step away from my son the human being and make him my son the claimant while seeing him in both lights.   

And I did good, a presumptive dib and a final approval in 50 days.

But my wife?  Despite also working for the agency she couldn’t see her son like a claimant.  And that’s a wonderful thing.  But I know had she been the one to do the paperwork, it’d be a lot longer to get the claim approved.

For the reasons I said earlier, along with those from today’s blog post, filing for disability isn’t easy, trivial or a sure thing.  And the way it’s being painted as some sort of money teat for the lazy is just wrong.  (Yes, some folks do scam the system but that doesn’t diminish anything said in the blog or the replies.  Humans make mistakes, they steal, it happens.  But that doesn’t taint the program.)

bigstock-Beautiful-Black-Woman-3235736The rest of my reply to the original commenter:

Complex emotional territory.  Complex emotional territory that can be captured in a photograph and uploaded to Facebook to tell what a family member or a disabled person wishes were the truth.

I am struck by your question, ‘[d]oesn’t the incentive for pecuniary gain during a hearing outweigh the natural tendency to minimize one’s limitations?’

Yes.  During a hearing, the incentive for pecuniary gain does Angryoutweigh the natural tendency to minimize one’s limitations.  In my view, the weight of your question lies in the phrase “during the hearing.”

From my vantage point, I see these cases playing out not only during a hearing, but during the year and a half, two years, three years … that it takes to get to the hearing.

Grunge - PovertyWhat claimants endure during those enormous blocks of time: poverty, cast into the street oftentimes, failure, living without dignity in the basements of family members, being deeply ashamed of themselves, not being able to access healthcare, my women clients … the unspeakable – is too high a price to incentivize these modest financial gains.

When you have a front row seat to that show, you see how unlikely this is to be a complex con.

I have so often wished I could play the audio files in hearings bigstock-Siblings-Fighting-34299935of clients’ messages left … their scramble to find shelter in extreme weather, their relatives sometimes screaming at me to hurry up and get the hearing scheduled because they ‘can’t stand this person living in their house’ anymore, the messages from workers in churches who are calling to ask how they can help this homeless person who keeps showing up needing food … on and on and on.

bigstock-Highlighted-Nervous-System-3730601I have often thought that the most difficult part of being an ALJ would be only to have before me the record and the relatively few moments of the hearing upon which to make my decisions.

To me, that is a mere skeleton of the lives I see fleshed out before me.

 

 

Sochi Security

Last week the Dunk Tank criticized, D. Randall Frye, President of the bigstock-Protecting-Your-Facebook-Infor-48808871Association of Administrative Law Judges who complained in a New York Times opinion piece that Social Security’s judges cannot consult social networking sites, like Facebook, to help them determine whether a person is disabled or not.

Among other things, I said,

On the one hand, Judge Frye argues that Social Security’s ‘courtrooms ought to look more like what you see on Law and Order, or The Good Wife,’ but on the other hand, Judge Frye seems not to consider that in a real courtroom, with adversarial proceedings, the Federal Rules of Evidence would bar as inadmissible, absent an exception, hearsay evidence like Facebook posts.

A reader of the post left the following comment on the Facebook page:

Interesting post.  One comment.  I’m not sure I understand why an applicant’s admissions against interest on a social networking site would be problematic to consider.  Of course, I don’t practice in this area at all.

To me, the comment is interesting and reveals an important subtlety not only about Social Security disability, but about disabled people that I tend to gloss over.

The subtlety is that disabled people who need Social Security disability, who apply for it, who fight for it, and who receive it … at some very basic level … DO NOT WANT IT.

  • Disabled people are often uncomfortable with their status as “disabled.”
  • Disabled people are often embarrassed by the conditions that disable them.
  • Disabled people often run from the label of “disabled.”
  • Disabled people often deny, and hide the parts of themselves that are deficient.
  • Disabled people often lie to cover up their disabilities.
  • Disabled people often present themselves as non-disabled to whatever extent they can.
  • And disabled people do ALL of this … even when they are … disabled.

As an attorney working to prove that my clients are disabled, I often find myself at loggerheads with my clients because it is very, very, very likely that they are vehemently disowning and denying the fact of their disabilities … while asking me to prove they are disabled. 

I try gently to draw out as much accurate information as a client is willing to reveal of their functional deficits, while simultaneously trying to protect them from the emotional hit of having to speak aloud the particulars of their functional deficits.   It’s an awkward little dance.

It is human nature to disown and deny weaknesses.

When I go to my doctor, I have difficulty bringing up my own physical … uh … foibles.   I am even more protective of my mental, emotional, and behavioral deficits.   None of us is particularly keen on those open-in-the-back hospital gowns, right?   We do not like exposing ourselves in harsh lighting.

A friend told me she wished she had “highly-evolved symptoms” to tell her doctor – rather than her embarrassing real symptoms.

Disabled bigstock-Denial-Concept--42598114people are no different than non-disabled people in this regard.   And … more often than not, they’re not trotting out their functional inadequacies on social networking sites.

Moreover, people – whether disabled or not – are often not even sufficiently self-aware to know what their impairments, diagnoses, symptoms, et cetera, are.   In medical records, this is deemed as the patient “lacking insight and judgment” as to whatever conditions or symptoms he or she has.

So … speaking for myself, not only do I tend to hide or minimize my inadequacies, I will take it one step further and not even be able to see my own inadequacies.   This is utterly human, utterly normal.

Disabled people who create an online presence on social networking sites are very likely to conceal – consciously or unconsciously – embarrassing facts, and present themselves as non-disabled – even when they are, in fact, disabled.  

Disabled people who create an online presence often take pains to present themselves in a less embarrassing way than their medical records – or their applications for Social Security disability benefits – portrays them.   And it cannot be assumed that the Facebook depiction of the self is the truthful depiction.   In fact, I think it is highly unlikely to be … the truth, the whole truth, and nothing but the truth.    

Disabled people who create an online presence often present themselves as non-disabled to advance their interest in presenting a positive public face.  

The definition of admission against interest is:

an admission of truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests.  A third party can quote in court an admission against interest even though it is only hearsay.   (Emphasis added.)

I would argue that online presentations of idealized selves on social networking sites are not admissions against interest.   The statements are often fabrications designed to diminish embarrassment, and to advance a personal interest in saving face.

So … when the President of the Association of Administrative Law Judges argues that Administrative Law Judges should be able to consult Facebook in disability determinations, without any mention that Social Security should also use the Federal Rules of Evidence, it makes me very nervous.  

I want, at least, an opportunity in court to argue that online presentations of an idealized self is not an admission against interest, and should be inadmissible on the basis of its being unreliable hearsay evidence.

Given my experience in administrative courtrooms, and in reading the decisions produced by Administrative Law Judges, the idea that Facebook posts could be given the same weight as medical evidence is alarming.

Regular readers of the Dunk Tank may recall the last post in which I discussed Judge Richard Posner‘s expression in oral argument of his frustration at Social Security’s judges’ bad habit of simply declaring claimants’ allegations and physicians’ opinions as “not entirely credible” without any analysis or explanation about why.

Judge Posner asked the attorney from the Office of General Counsel to …

get back to [Social Security judges] that there is dissatisfaction with the way these ALJ opinions are prepared and this boilerplate about ‘not entirely credible’ is extremely unhelpful to a reviewing court because it doesn’t say anything.

Indeed.

I absolutely guarantee that very seriously disabled people, who meet the rules for disability, and who very much need disability benefits for their basic support, are posting on Facebook that they are not disabled.

Guaranteed.

But, it does not change the fact that they are, in fact, disabled.

The thought that claimants’ Facebook utterances would cast their legitimate claims of disability, and their strong medical evidence, into the vast wastebasket of “not entirely credible” is a serious concern.

Let me put it to you this way:

bigstock-AUSTRIA--CIRCA----A-stamp--40403044Muhammad Ali is the greatest heavyweight boxing champion in the history of the sport.

Dubbed the “Louisville Lip,” Muhammad Ali is the greatest trash talker in the history of all sport.

In 1964 Muhammad Ali (then Cassius Clay) fought Sonny Liston taking from Liston the World Heavyweight Champion title.   The fight was determined to be a 7th round knock out when Sonny Liston couldn’t rise from his chair at the starting bell for the 7th round.

But before Cassius Clay took the title from Liston … BEFORE he was the World Heavyweight Champion – he talked the most glorious and wonderful trash talk EVER.  

Here is beautiful old film of a young Cassius Clay – accompanied by Liberace, of all people, on piano before the Clay-Liston fight in which Clay (predicting a win in 8 rounds) poetry-slam-trashes Sonny Liston describing, “the 8th round exactly as it will happen.”

Clay comes out to meet Liston, and Liston starts to retreat
If Liston goes back any farther, he’ll end up in a ring-side seat

Clay swings with the left, Clay swings with a right!
“Look at young Cassius, carrying the fight!”

Liston keeps backing, but there’s not enough room
It’s a matter of time, ere Clay’ll hit the moon!

Now Clay lands with a right, “what a beautiful swing!”
And the punch raises the bear clear out of the ring!

Liston is still rising, and the ref warns the crowd,
he ‘can’t start counting, ‘til Sonny comes down!’

Now Liston disappears from view …. The crowd is getting frantic … but our radar stations have picked him up … he’s somewheres over the Atlantic!

Who would have thought when they came to a fight that they’d witness the launching of a human satellite!

Yes, the crowd did not dream when they laid down their money
that they would see … a total eclipse of the Sonny.

Muhammad Ali’s trash talk was brash, creative, artistic … amazing.   But what made it most impressive was that Muhammad Ali delivered.   It was not just talk … his speed, his footwork, his ability to dipsy-doodle out of the way of most of Liston’s punches, his reach … that left hook.   It was bigstock-Super-Bowl-XLVIII-logo-on-Seat-58503986not just talk.

Sports are clear.   In sport, we see who beats who.

But, sometimes trash talk … is just talk.

Super Bowl 2014:
Seattle Seahawks 43, Denver Broncos 8.

Got it.

Doesn’t matter what got said before the Big Game.

In Sochi, Natalie Geisenberger (Germany) won gold in women’s luge with the largest margin in any luge event at the Olympic Winter bigstock-Toboggan-in-Sigulda-Latvia-W-25966448Games since 1964 – a full 1.139 seconds ahead of silver medalist, Erin Hamlin of the United States.

Got it.   No trash talk necessary.   Ms. Geisenberger’s trash talk is just her lip-synching the German National Anthem while standing on the gold medal podium.

Sports are clear.

But often … life is clear too.bigstock-scoreboard-football-15279458

Despite the trash talk disabled people might do on social networking sites … life’s scoreboard reveals the disability.  

When a disabled person cannot work because of his impairments – impairments that are documented in medical records – life’s scoreboard will reveal he has been fired from jobs, lost his home, is living in relatives’ basement, or under bridges, he is hungry, and broke and depleted ….   It doesn’t matter what he says.   It doesn’t matter what he posts.  

The legal definition of “disability” doesn’t require that disabled claimants publicly own the disability.   They do not have to be branded with a scarlet letter D  for all to see.   They do not have to go forth, hat in hand.

In fact, a disabled person can be legitimately and legally disabled – all while throwing up a lot of subterfuge to those around him to make sure that they think … he’s not disabled.

Because sometimes trash talk … is just talk.

President of the Association of Administrative Law Judges Makes Argument to Abolish Administrative Law Judge Corps in Favor of Federal Courts

D. Randall Frye, President of the Association of Administrative Law bigstock-Stock-illustration-of-tool-bel-52168489Judges, penned an opinion piece published in The New York Times entitled Fixing Disability Courts.   In it, Judge Frye makes his case for changing the adjudicatory process for Social Security disability hearings from a non-adversarial process to an adversarial one, so that, as he puts it, “the courtrooms look more like those in Law and Order and The Good Wife,” and so that “each side” has an advocate.

Judge Frye also covered other ground:  he expressed discontent that judges are constrained from reviewing claimants’ created online presence on social networking sites such as Facebook and Twitter.   He asserted that judges should be able to submit claimants to psychological testing designed to ferret out malingering.  And, Judge Frye admonished President Obama to replace acting Commissioner, Carolyn W. Colvin with a “permanent leader with recognized professional experience in the field of social insurance.”

In support of the idea that disability hearings should be adversarial, Judge Frye wrote, “[in hearings] taxpayers have no advocate on their behalf to ask questions, challenge medical evidence or review the 500 – 700 pages of materials that make up a typical case file.”

Au contraire, mon frère!   These tasks are under the purview of the Administrative Law Judges themselves!   These, in fact, are essential functions of the Administrative Law Judges’ job.

I would encourage informed taxpayers to know that Administrative Law Judges:

  1. are able to ask questions,
  2. can challenge medical evidence, and indeed,
  3. must review the case files assigned to them – no matter the number of pages.

These are essential functions of their jobs.  Most Administrative Law Judges do them.   And do them well.

Moreover, Social Security and its Administrative Law Judges are:

  1. permitted to request medical evidence,
  2. permitted to contact claimants’ physicians for more information or for clarification,
  3. permitted even to send claimants to consultative physicians of its own choosing – at will – to assess claimants.  (Failure to attend such an appointment can be grounds for denial.)

Administrative Law Judges are hardly constrained or knee-capped in any way to perform the duties of their jobs.

bigstock-man-plays-chess-against-himsel-50875502In fairness to Judge Frye, he seems to be at expressing frustration at the tensions that exist in performing the competing tasks required of Administrative Law Judges.  It is said that Administrative Law Judges in non-adversarial proceedings wear two hats:  they are advocates and decision-makers.  Perhaps it is a bit like playing chess with yourself?

But, many jobs require tasks that seem diametrically opposed.  For example, parents nurture and discipline.   Pizza delivery drivers need to be fast, and yet drive safely.   I would grant that it is challenging to figure out where the contours of one task ends and the other begins – but it is doable.   And, what’s more, it’s what is required.   For highly skilled and well-remunerated Administrative Law Judges, we should expect they can manage these dichotomies.   Most Administrative Law Judges can, and most do.

While it is reasonable to argue that it is a challenge to carry out competing tasks simultaneously, it is not reasonable to argue that being a decision-maker in a tribunal is a disadvantage.

Indeed, to be the decision-maker … is to hold the trump card.  It is not a bigstock-Royal-Flush-1234650disadvantage.   Ever.

I know a mother of three who wears a t-shirt that says, “because I’m the mom, that’s why.”   If I were an Administrative Law Judge, I might embellish my robe with, “because I’m the judge, that’s why” just for fun!

As an attorney practicing before Administrative Law Judges in the non-adversarial Social Security court, I understand myself to be at a technical disadvantage because the judge deciding the case, is also my “opposing counsel.”

bigstock-Injustice-system-court-gavel-h-20900147When an Administrative Law Judge asks questions I think objectionable, to whom do I raise my objections?   To the judge herself?   How is she to rule?   Against herself?

Enlightenment philosopher, John Locke, whose writings influenced the American revolutionaries, wrote in Two Treatises of Government that “it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends.”

To advocate for a position, and then be able to rule on that position – is bigstock-Business-Woman-Day-Dreaming-Lo-50172461an advantage I can only dream of … in my wildest of professional dreams.   “No … I’m sorry, I’m right again!”

But, Judge Frye seems not to appreciate that claimants and their attorneys might be disadvantaged in non-adversarial proceedings where opposing counsel is also the judge.   To my utter amazement, Judge Frye assesses this circumstance to be an advantage to … the claimant.   Wow.

An attorney friend recently called me to commiserate about his experience in a hearing before a Social Security judge.   Although my friend had never handled a Social Security case, he is a litigator with decades of courtroom experience in administrative, bigstock-Businessmen-having-a-fight-50282621state, and federal courts.   He called extremely upset because he had encountered an Administrative Law Judge whose behavior was so out of control, and abusive that he was sputtering with anger, saying, “I have never encountered such unprofessional behavior from a judge – ever!   She wouldn’t allow me to question my client … she kept accusing him of lying whenever he tried to speak – even just to answer her questions!”

He complained that there was no one to turn to in the courtroom … no neutral arbiter … no one to rein in a tyrant.

“Yes,” I said, “this is the counter-intuitive downside of ‘non-adversarial’ proceedings.”

On December 14, 2010, oral argument was heard on three cases whose bigstock-Gavel-on-court-desk-52663684appeals were consolidated for the purpose of efficiency at the Seventh Circuit, Court of Appeals.   A three-judge panel was convened including Richard Posner, Ilana Rovner, and Kenneth Ripple.

It was almost painful to hear the federal judges excoriate the poor quality of the work produced by Social Security’s Administrative Law Judges.   The Court of Appeals’ judges’ frustration was palpable.   It was clear they were exhausted by the quality of the Social Security decisions they were repeatedly hearing on appeal.

Catherine Seagle, the attorney from the Office of General Counsel who had the unenviable job of defending one Social Security judge’s decision, characterized the decision by saying, “… while the decision is very streamlined …” but she was interrupted mid-sentence by Judge Posner retorting:

It is not ‘very streamlined!’  It is very inadequate!
How much do we have to put up with this?
The Social Security Administration doesn’t seem to pay any attention to our decisions.  We’re still seeing this ridiculous bit of boilerplate about ‘not entirely credible.’  What exactly did [the Administrative Law Judge] find to be not credible?

Later, Judge Posner asked, “does the Social Security Administration and the Justice Department automatically defend every single case in which there’s a petition for review filed in a court?”

Ms. Seagle:  “No, your Honor, we go on a case by case basis.”

Judge Posner:   “Do you use judgment?”

Ms. Seagle:  “We do.”

Judge Posner:  “Well you do it very badly because you keep getting reversed ….  And nothing seems to have trickled down to the Administrative Law Judges….”

Ms Seagle admirably hung in there trying to defend the abominable decision, replying, “the [Administrative Law Judge] did assess some limitations …”

But Judge Posner was having none of it.   He said, “that is not responsive to my question.  Is there any communication between your level and the Administrative Law Judges?”

Ms. Seagle:   “Certainly.   Certainly.   We have trainings.”

Judge Posner:   “Could you get back to them that there is dissatisfaction with the way these ALJ opinions are prepared and this boilerplate about ‘not entirely credible’ is extremely unhelpful to a reviewing court because it doesn’t say anything.”

Judge Rovner added, “and their lack of doing their job makes our job a lot harder.   And it makes your job impossible.   My heart really goes out to you today to have to come here and try to defend this utterly shocking piece of … garbage.”

I bring this oral argument up to make the point that Social Security’s Administrative Law Judges should be at improving their decisions, making sure they are supported by substantive and substantial evidence.  Administrative Law Judges should not be arguing that they should be able to use Facebook – of all things – to make their decisions.

It is an embarrassment that an Administrative Law Judge, and especially the President of the Association of Administrative Law Judges, would publicly argue that judges should be able to use one of the most bigstock-Pressing-Dislike-Button-43389322unreliable, unverifiable sources of gossip known to humankind – social networking sites – to make legally binding decisions.

While Judge Frye may be able successfully to rabble-rouse laypersons who read his op-ed in the New York Times, I can only imagine the tongue-lashing he would receive by arguing to knowledgeable legal thinkers like the Judges Posner, Rovner, and Ripple that Administrative Law Judges should be able routinely to use Facebook posts in their decision-making.

Might Judge Rovner say Judge Frye’s argument, and his trotting it out publicly in the New York Times, is an utterly shocking piece of … unprofessional … garbage?

On the one hand, Judge Frye argues that Social Security’s “courtrooms ought to look more like what you see on Law and Order or The Good Wife,” but on the other hand, Judge Frye seems not to consider that in a real courtroom, with adversarial proceedings, the Federal Rules of Evidence would bar as inadmissible, absent an exception, hearsay evidence like Facebook posts.   Judge Frye seems to want it both ways.

Judge Frye put his name to the following untruthful and disingenuous paragraph in his op-ed:

Neither the staff members of the Social Security Administration, who review initial claims, nor judges like myself, who hear disputed cases, are allowed to look at Facebook in the context of a case.  Even if something in the case file suggests a claimant is not telling the whole truth, Social Security Administration policy prevents us from looking at social media, for fear that we cannot be trusted to properly assess the information gathered there.  No Facebook, no Pinterest, no Twitter, no Tumblr.  None of the sources that most employers routinely use to check the credibility of potential employees are available to us.  (Emphasis added.)

Social Security’s reasons for barring its employees from clicking around on social networking sites are sound.   Policy instruction AM-12053 articulated an inhibition of adjudicators and reviewers from using social media for two important, and well-considered, reasons:

1)  it is impossible for adjudicators and reviewers to determine the accuracy of uncorroborated information found on the Internet and social networking sites, and
2) “entering claimants’ ‘personally identifiable information’ on an internet search engine or social media network may compromise the confidentiality of [that information’].”

Social Security has an enormous concern that their judges make correct bigstock-Bored-At-Work--54028996decisions, using proper information.   Proper information is dominantly the difficult to read, voluminous, and mind-numbingly dull medical records of claimants.   It would be easier – and a helluva lot more fun – for Judge Frye, and other Social Security judges to clickety-click around on Facebook … read a bit of gossip … view the uploaded photos there to decide cases!   But those decisions would not be supportable on review.

Just ask the poor, beleaguered Catherine Seagle, and other Office of General Counsel attorneys, who would try, and likely fail, to defend those decisions in federal court.

Furthermore, the Social Security Administration, and the American bigstock-Warning-Computer-Security-Thre-55293470public, has an enormous and legitimate concern that Social Security workers do not compromise the confidential, private information they hold.   Allowing Social Security workers to enter personally identifying information into non-secure search engines and social networking sites should strike fear into the hearts of anyone in this country whose Social Security number Social Security has.

bigstock-Yes-You-Can-Rubber-Stamp-43655509Furthermore, Social Security’s Administrative Law Judges and reviewers are not barred from accessing social networking sites – when there is suspicion of wrong-doing.

Policy Instruction AM-12053 allows adjudicators and reviewers to obtain information from social networking sites when there is a suspicion of fraud.  They must, however, request the information through the fraud investigating unit of the Social Security Administration called the “Cooperative Disability Investigative Unit.”

When Judge Frye complains that Social Security Administrative Law bigstock-Happy-Man-Pointing--Retro-Cli-49777829Judges are not even permitted to look at any “of the sources that most employers routinely use to check the credibility of potential employees” someone should point out to Judge Frye that Social Security’s Administrative Law Judges are not potential employers, they are employees of the U.S. federal government who are bound by constitutional, statutory and regulatory rules and considerations far above “most employers.”

Despite my vehement disagreements with Judge Frye in his reasoning, in an odd way … I find myself in agreement with him.

The adversarial process is tried and true.   Claimants of Social Security disability benefits have high-stakes claims, and they should arguably be granted the gold-standard of processes.   The American public has an interest in these decisions being made well, and properly.   To follow the argument to its logical end, Judge Frye’s complaints beg the question:

Why should Social Security not do away with the hearing level of the administrative process, allowing claimants to exhaust their administrative remedies after reconsideration, allowing them to proceed directly to federal court?

Federal courts are established, adversarial courts, like the ones seen in Law and Order and The Good Wife that lack the flaws Judge Frye claims exist in Social Security’s non-adversarial administrative courts.   Social Security need not reinvent that wheel.

Judge Frye seems inadvertently to have made an argument for doing just that.