Tag Archives: 763 F.3d 1154

Jessie Holds Court

people, children, technology, friends and friendship concept - hJessie was smaller and younger, but had by far the best ideas, so she was the ringleader.

We lived near a school that sometimes was in session when ours was not.  The school had large-windowed classrooms at its basement level, and if you were a little kid standing outside one of those windows, it was as if you were on a stage, framed in a veritable proscenium arch, optimal for entertaining the captive inhabitants of the classroom therein.

Think of the possibilities.

Once when they were in session, but we were not, Jessie had us dress up “like the girls fromTwo Little Girls Vintage Photograph Little House on the Prairie,” go to the school where we crawled to the window and looked with exaggerated longing into a classroom full of kids about our age.  We were not disruptive.  We were just there … sitting.   Jessie pretended to take notes on a pad of paper.  When the teacher eventually came to shoo us away, Jessie, stuttered out a wistful protest in the most hammed-up, corn-pone delivery imaginable … “we … we … we just want to learn.”

Brought-the-house-down.   Even the teacher.

Ha-ha-ha!  A delightful little childhood story from back in the day when families had five and six and nine kids apiece, and instead of having a helicopter for a mom, our perfectly competent mothers locked us out of the house with the admonishment to “go play.”  You heard the click of the lock, and you went off to … play.  Your mother went into the house to get after her work, and did not feel the least bit of guilt over the transaction.  Those were the days.

I could go on and on with adorable stories of tender childhood adventures and pranks, but as I people, children, misbehavior, friends and friendship concept -think of them … now with the sensibilities of an adult … I realize that a lot of what we did, and thought nothing of at the time, were actually pretty awful things.  No need to plead the 5th given that the Statutes of Limitation run by the time your moms pass on.  But no kidding … we did some pretty awful things.

Here’s one:  the church at the end of our block had a little yard with a swing set, slide and sandbox.  While playing in the sandbox one summer afternoon, Jessie and I discovered a door to the church had been freshly painted bright red.  It was beautiful and fresh and wet … and there we were … with the sand.  Though unimaginable to me now, we threw sand on the door and ran away laughing ourRed Door horrible little heads off.

Ha-ha-ha!  A delightful little childhood story from back in the day. Adorable little rascals, weren’t we?  

Devils more like.

And another:  we found an unlocked window which was a reliable way into the church building and snuck in on Saturdays to play in a classroom set up for Sunday school.  We played with toys and pretended to be teachers writing arithmetic problems and spelling words on the chalkboard.  Nothing profane.  But when we found a utility closet with a sizeable store of Dawn dishwashing detergent, we squirted whole bottles of it in a hallway, ran back and forth to a drinking fountain getting mouthsful of water and spitting them onto the floor creating a dastardly Slip-n-Slide that certainly was an hours-long horror to clean up. 

I knew it was wrong.  But the clean up was the only thing I considered … and then disregarded.  

Were there consequences my ten-year old self wouldn’t have considered?  Did an elderly person happen upon our handiwork and become injured by it?   I don’t know.   Jessie and I went Senior Woman Enjoying Cup Of Tea At Homeblissfully on our way.  Now, too late, I wonder.

In my early adulthood, I had a delightful, elderly neighbor who occasionally invited me in for tea and a chat.  She was mugged on her porch and in the violence was pushed to the ground and broke her pelvis.  It was shocking the degree to which her quality of life abruptly declined.  She was left quite depleted and depressed for the remainder of her days.

The muggers, she said, were “just teenagers.”

She recognized their acts were borne of youthful indiscretion. Indiscretion with a clear and direct potential for the debilitation that occurred though.  Squirting slippery detergent on a floor is not the same as a mugging.  I will restrain myself from obnoxious over-piety to equate them.  But the effect, for all I know, could well have been the same.

Making decisions with inadequate information are unavoidably how all decisions in youth are made.  And they’re often bad decisions.  Many of mine were.

I confess that not only did I make decisions with inadequate information, but I also unconsciously gave too muchTeenage girl depression - lost love - isolated on white backgrou weight to banal personal concerns – my standing among peers, and my fear of crossing Jessie. 

Jessie might have been the ringleader because she had by far the best ideas, but also because she was a bit of a devilish little bully if you didn’t go along with them. 

Disability determinations are often unavoidably made with inadequate information too.  Medical records are necessarily the primary source of information used to determine whether a claimant is disabled.  Medical records almost never directly address how patients function.  And in most cases how a person functions is  the only relevant issue to the question of disability.  

Even diligent scrutiny of every shred of medical evidence can leave a decision maker at an honest wobble as to whether the records prove up a disability or not.  (I attempt to get at this in If it may please the court, I’d like to whisper sweet nothings in your ear.)

The concern is whether decision-makers left in the lurch after all the evidence is considered would slip into using generalized information to make specific decisions in particular cases.

In Scheherazade’s Superpower, I mentioned that a dissenting opinion in a U.S. Court of Appeals case stated that when medical records are unclear, decision-makers are justified to tip the scales in favor of an assumption that a claimant is likely feigning the disability. The case cited a story of fraud.   (Ghanim v. Colvin763 F.3d 1154 (9th Cir. 2014)) 

This is the kind of generalized information I mean.  

It’s jarring to read this advice in case law, but … I rather appreciate the honesty.

EscapingThe stories of fraud, even when true, represent a tiny fraction of the scope of the disability program.  

Nonetheless, the stories are a huge embarrassment to the Administration, to its decision-makers, to private attorneys representing disabled claimants, and to the claimants themselves.  

Everyone is injured by fraud.  Everyone is implicated by fraud.  

Everyone.  Everyone.  Everyone.  Even all the law-abiding everyones. 

With the rise of stories of fraud in the press, and the documented decline in awards of benefits to claimants, one wonders whether these variables are merely correlated, or whether the rise of the stories is a cause of the decline.  The Ghanim case would suggest there is at least some causation. 

One wonders whether, in addition to Social Security’s stringent standard of what must be proven to obtain disability benefits, if claimants’ burden now also includes overcoming the presumption they are frauds at the outset. 

This would make obtaining benefits, even when truly disabled, quite a bit morePocket Watch Swinging On A Chain Black Background difficult.  Especially so if the burden wasn’t stated, but just hypnotically played itself out in the background of decision after decision after decision after decision.

Shhhh ….  When I snap my fingers, you will see fraud everywhere … when I snap my fingers you will see fraud in everyone … shhhh … decide … shhhh … decide … shhhh … decide.

The Social Security Administration is responding to fraud aggressively.  And they should.   They have increased the numbers of fraud units nationwide.  And they have announced it will be responding to fraud … even before it happens … by the use of predictive analytics.  

Predictive analytics allows fraud investigators to predict who might be a “risky person” in an effort to prevent fraud.  Preventing crime before it occurs makes sense.  Right? 

But using predictive analytics to implicate specific persons before commission of  a criminal act … that’s a bit like … like Spielberg’s film, Minority Report where crimes are foreseen by psychic “pre-cogs,” and prosecuted in advance of their occurrence!  

Tom Cruise at the Los Angeles Premiere of 'Valkyrie'. The DireTom Cruise playing the Chief of Pre-Crime bursts into a home, cuffing a suspect saying … “by mandate of D.C. Pre-crime Division, I’m placing you under arrest for the future murder of Sarah Marks, that was to take place today ….” 

It all made a kind of sense until the pre-cogs foresaw Cruise’s character planning a murder of a person he didn’t even know.

Predictive analytics would not be used to prosecute crimes before they’re committed, but would be used, according to Social Security’s Acting Commissioner Carolyn Colvin, to prevent fraudulent applications from being processed.”  

It’s unclear what … “preventing fraudulent applications from being processed” means … but it sounds like it’s … finally an articulation that claimants, or at least some of them, do have the burden to overcome a presumption they are frauds at the outset … before their applications for benefits are even processed, much less adjudicated.  

It’s jarring to hear this from the Commissioner, but … I rather appreciate the honesty.

people, children, television, friends and friendship concept - tWe need … to think this through.  We need to make informed, fully-conscious decisions.

At any rate, Jessie and I were darn lucky there wasn’t a Juvenile Pre-Crime Division back in the day. Although, in our case, we would assuredly have deserved whatever pre-punishment we got.

All people have an interest in disability determinations being made correctly.  The integrity of the program depends on it.

The devils, as always, are in the wayward little rascally details.

Scheherazade’s Superpower

Shahryãr the fabled Persian king discovered his wife’s infidelity and ordered her death. Burka03

Concluding that every woman is the same as the first, and each in turn would always be unfaithful, King Shahryãr marries a new virgin every afternoon, and at morning’s light orders his bride beheaded before an opportunity to dishonour him could arise.

Seems reasonable.

The king carries on for years in this way until the marriageable women are either dead or have fled and then it is Scheherazade’s turn.

Scheherazade is a storyteller.

On their wedding night, Scheherazade asks the king if she may tell her sister, Dunyazad, one last beautiful woman in oriental style with mehendi in hijabbedtime story.  The king grants her request.

Scheherazade skillfully relates an inventive narrative that captivates the king.  Shahryãr sits, with Dunyazad, and is brought along by each image, turn of phrase, suspense, and narrow escape.  Morning arrives, but the story is not complete and the king spares Scheherazade to finish the story.

The stories never end for a thousand and one nights.  By that time, Shahryãr’s heart is Scheherazade’s, and her stories have saved them both.

Story is Power.

Human brains rely on narrative to understand a complex world.  The tighter the narrative, the more direct, and simple, the more a person feels he or she has mastered the concepts and can extrapolate fundamental, guiding principles.  If information, later-received, falls outside of the story, it is discarded as untrustworthy.

I am not criticizing this way of understanding.  And even if I were, it is not negotiable.  It is the The Thinker Statue by the French Sculptor Rodinway of the human bean.  And, it is inadequate only to the extent that beans exclude contradictory information.

When contradictory information is accepted, when it is welcomed and considered, when thinkers allow it to challenge their assumptions, draw out questions, deepen consideration and enhance understanding … … why … … why that’s the scientific method!

Over the course of the past decade, there have been a thousand and one stories in various media telling of people committing fraud on Social Security.  

The Legal Reference Librarians at the Library of Congress have been so inundated with requests for information about the Social Security disability programs in recent years, that to manage them, they published a basic primer to which they could refer reporters.  

More recently there have been stories telling that the Social Security Disability fund is to run dry by the end of 2016.  It appears the funding issue is subtly related to the prevalence of the fraud stories – but perhaps not in the way you might think.

On January 6, 2015, the first day of the 114th Congress, Republicans in the House of Representatives amended a parliamentary rule restricting reallocations of monies between the Retirement, and Disability funds.  Such reallocations have uneventfully occurred eleven times in the history of the programs.

Capitol building Washington DC pink flowers garden USA congressWhen Social Security raised the retirement age, more people in the “disability-prone years” were both unable to work, and unable to wait until they reached retirement age and so applied for disability.  The effect was that the Retirement fund was advantaged, while the Disability fund was disadvantaged.

So, the Retirement fund is hella huge right now, and the Disability fund is bust.  Time for an uneventful reallocation.  With a reallocation, both funds would be solvent through 2033.

Recall the funding drought is subtly related to the prevalence of the fraud stories?  If the connection isn’t clear, the Representatives behind the rule change help to clarify:

Rep. Sam Johnson (R-TX), justified the rule change with an interesting back flip by saying:

In 2016 the fraud-plagued disability program will become insolvent.  If nothing is done, Americans with disabilities will see an across-the-board cut of 20% to their benefits.  Unfortunately, the President and Democrats support raiding the Social Security retirement program to bail out the disability program.

Huh?  The rule change you put forward is the reason the disability program will become insolvent in 2016.  It wouldn’t have been insolvent without you guys making that change.

Oh, I get it!  It’s one of those tight little narratives – direct and simple!   Now I’m supposed to feel I’ve mastered the concepts and can extrapolate fundamental, guiding principles therefrom!  bigstock-Happy-Black-Woman-12039302Now, if other information, later-received, falls outside that narrative, I’m to discard it as untrustworthy!   I see what you did there!   You got me, Representative Johnson!  You got me good!

Rep. Tom Reed (R-NY), a co-sponsor said,

My intention by doing this is to force us to look for a long term solution to [Social Security Disability Insurance] rather than raiding Social Security [Retirement] to bail out a failing federal (Disability) program.  Retired taxpayers who have paid into the system for years deserve no less.

Disabled taxpayers of Social Security Disability Insurance have also paid FICA taxes for years.  But let’s not quibble over details.

Story is Power.  But if you don’t have a story, just keep saying a thing over and over again until all the beans just think it’s so.  That’s power too.   

Sen. Rand Paul (R-KY) consistently states that “over half of the people on disability are either anxious or their back hurts…. Join the club.”  

That’s simple, understandable … a nice frame.  I think I’ve mastered the concept – the Disability program is riddled with fakes and frauds.  Got it.

Rand Paul is an ophthamologist.  One would think he  would appreciate gradations of medical conditions.  A person has “vision problems” if she is blind.  A person has “vision problems” if she only needs reading glasses.  The same is true for people with psychiatric and orthopedic conditions.  

Senator Paul’s simplistic statements are given more weight because he is a Senator, and because he is a physician.  His statements provide that nice, simple framework for all the beans to think they’ve mastered the complex concepts involved in “disability” and can extrapolate fundamental, guiding principles therefrom. 

Fox News’ reporter Shannon Bream says that 100% of people receiving disability benefits are receiving them “under false pretenses.”

100%.  Not only is that simple, it guarantees that any contradictory information falls outside the narrative, and must be discarded as untrustworthy.  

Seems reasonable. 

The connection between the stories of fraud, the overblown proclamations of fraud, and defunding the Disability program is taut.

fortune-teller with a shining crystal ballMadame Dunk Tank predicts the future … … the orchestrated insolvency of the Disability fund will be used as leverage to attack the program, to attempt legislatively to deplete it, to cut benefits, and to defame disabled people who either receive disability benefits or apply for them.

Madame Dunk Tank foresees the pitting of “good” retirees against “bad” disabled people.

Madame Dunk Tank advises you to prepare for more stories of fraud … prepare for more invective leveled at disabled people.  They are ripe for the picking on.

While the stories of fraud are drastically overblown, there are instances of fraud to be sure.  Some of the stories of fraud are true even if, statistically, they are a blip.

I do not minimize fraud.  Social Security rightly has a Zero Tolerance Policy on fraud.  The Dunk Tank has a Zero Tolerance Policy on fraud. 

Social Security’s Office of Inspector General puts great effort into policing fraud.  And they would appreciate your help.  If you have information of anyone committing Social Security fraud, report it.  It is easy to report, and you may do so anonymously.  Click here to report.

fraud bride and political or police corruption money corrupt cybHaving said that, statistically, fraud is not a major problem for Social Security.

The nonpartisan Government Accountability Office in conjunction with the Office of Inspector General researched the question of fraud in the disability program and found that 0.4% of disability beneficiaries were likely receiving improper payments. 

In West Law’s November 2014 issue of Current News, a private, subscription-only (which is why I can’t link to it) publication on Social Security, it was reported that Social Security’s Office of Inspector General had audited a seven year period in California to determine the accuracy of payments to beneficiaries reported by the state as deceased. Only 22 of 1.2 million Social Security card-holders, were erroneously being issued checks despite the recipient having died.   That is an astonishing 99.999% rate of accuracy!  

Social Security should be lauded for that degree of near-perfection. 

I never saw that in the press.   One could imagine the tight little narratives – direct and simple – about the 22 mistakes though … out of context … with the projected millions of misspent dollars.  Thankfully I never saw that in the press either. 

Although fraud is not statistically a major problem for the Social Security Administration given the scope of its reach in assisting elderly and disabled people, increasing numbers of erroneous denials of legitimate claims for disability benefits is a major problem.

In Ghanim v. Colvin, 763 F.3d 1154, Chief Judge Alex Kozinski, in dissent makes an argument that when there is conflicting evidence that comes down reasonably on either side of the question of disability – especially where a claimant alleges a mental disability – that an Administrative Law Judge is well-justified to tip the scales in favor of an assumption that the claimant is likely faking the disability.  Judge Kozinski’s opinion actually cited the Wall Street Journal article Ex-NYPD Cops, Firefighters Charged With Disability Fraud.

bigstock-Portrait-of-judge-sitting-with-41940163And there it is.  Story is power.

Federal judges, and Administrative Law Judges do not remain above the fray.  They are human beans judging human beans.

Nothing more.  Even with the robe. 

Like the rest of us, judges read these tight, simple little narratives and the stories form the basis of their very human misunderstanding.

Like Shahryãr of the Persian folk tale who concluded that every woman would be unfaithful because his first wife had been, judges take the tight little narrative of the fraud stories and conclude every disabled person who comes before them is likely also to be a fraud.

This is perhaps why the most recent data from Social Security’s Office of Chief Actuary regarding awards of benefits shows a decline from 56.1% in 2000 to just 34.8% in 2010.  And the downward trend continues.

Erroneous denials of legitimate claims is a major problem.  

When a legitimately disabled person is erroneously denied benefits the person remains disabled.  That fact is not changed by the denial.  An erroneous denial does not change reality.

Let me explain it this way:

Social Security Retirement and Disability Benefits, and Supplemental Security Income are available to elderly people as a matter of course.  There is nothing to prove, other than age, to receive them.  So, there is no opportunity for erroneous denials in the case of the elderly.

Have you ever noticed the homeless population in the United States is mostly not elderly?  I had not noticed it myself until travelling in the middle east and Africa. 

The demographic of the homeless population is much older in countries lacking a well-run social safety net like Social Security.  Although homeless people almost always look older than their years, the people I saw sleeping in the streets in the middle east and Africa looked to be in their seventies, and eighties. 

I have never seen a homeless person in the United States in that age range.  And that’s the kind of thing I notice.

Homeless Man Sleeping On A Bench

Our elderly are spared the fate of living in the streets because Social Security reliably, and without question (with no erroneous denials) provides support.

If Social Security afforded Administrative Law Judges discretion in determining benefits to the elderly, there would be mistakes, and we would see homeless elderly in the United States. 

Living the life of a disabled person with (in most cases) absolutely no income for years and years and years, while going through the years’ long disability adjudication process is astonishingly difficult.  This is a lot of time.  And it is hard time.  It stands to reason disabled people are not doing this in a complex scheme to commit fraud.  

I know this is information that falls outside the simple narrative, but take it in.  Consider it.  

When a disabled person is awarded Supplemental Security Income he receives at most $733 per month.   At most.  The amount can be less, but never more.  

When a disabled person is awarded Social Security Disability Insurance benefits, the average monthly benefit is $1,165 per month.  This benefit is based on how much the person paid in FICA taxes, so the number is not a fixed amount – that’s why I can only give the average.

Madame Dunk Tank avoids technicalities so as not to bore, but it is important to know that a disabled person can receive a little from both programs, but that is only when the amount received from Social Security Disability is less than $733.  When that happens, Supplemental Security Income kicks in to “supplement” the Disability benefits up to $733.  So, even if a person receives concurrent benefits, the amounts are not more than the lower amount. 

News flash:  Nobody gets rich on disability. The benefits meet only very basic subsistence living.  Recipients of disability benefits are still either at or below the poverty line.  It stands to reason disabled people are not doing this in a complex scheme to commit fraud.  

An erroneous denial of a legitimate claim is a tragedy.  It is a tragedy for the disabled individual, for their families, and for the society that steps over and fears its disabled, desperate, homeless people who live in its streets.

An inadmirable Administrative Law Judge once told me, “it’s no skin off my teeth if I get it wrong. They just go away.” 

Seems reasonable. 

The claimant may or may not go away.   But assuredly the problem does not.  

Closeup of business crowd raising hands

By a show of hands, how many attorneys out there have had at least one client successfully commit suicide upon receiving a denial of Social Security Disability Benefits?

Yeah.  Me too.

But, given their options, after an erroneous denial,  the choice seems reasonable.