Tag Archives: criminalizing the disabled

The 2% Club

Close Up Of A Young Smiling Beautiful Woman Wearing EyeglassesA friend’s theory as to why she – an intelligent, beautiful, amazing, and awesome woman – is perpetually single is that … … she is too awesome.

Her theory is that when the panoply of an individual’s characteristics fall in the tiny 2% parts of the bell curve – on either end of it – that person will have more difficulty finding a suitable partner than someone who Gaussian, bell or normal distribution curve on digital tablet cofalls smack dab in the middle.

It makes a kind of sense.   She is an outlier, a card-carrying member of the 2% Club.

An online dating service, Intelligent Dating Net has sprung up to address the problem.

Even if being an outlier is not an advantage in the world of dating, being an outlier in the world of neoutlier, outsider or nonconformist concept - statistical graph ows is an advantage – and a big one.   Outliers are interesting almost by definition.

Almost daily there is news of individuals who have fraudulently sought, and received Social Security disability benefits.   These stories are interesting, but statistically, they are outliers.   As such, they do a poor job of telling the full story of the Social Security disability program.

Yesterday’s story concerned a private detective who applied for disability benefits eleven years ago, and was found disabled.   Then, five years ago, apparently having medically improved, he returned to work without notifying Social Security of his improvement.   He continued, fraudulently, to collect benefits.   Social Security’s Office of Inspector General investigated, the man was prosecuted, convicted, and sentenced to two years in prison, plus two more years of supervised release, ordered to pay $ 5,000.00 in fines, and $ 144,000.00 in restitution to Social Security.Breaking News

Crime and punishment.   Interesting.   Newsworthy.

The story prompted me to contact my friend whose sister was receiving disability benefits, but who I’d heard had improved and gone back to work.   I had not represented my friend’s sister, and I had only met her a handful of times.  But, I could not contain myself.  I had to find out of she was still receiving benefits, had to inform her of the rules if she did not know them, encourage compliance if warranted, and help her follow the rules in the likelihood she did not understand them.

My friend put me in touch with her sister and we had the following email exchange:

(In case you don’t remember me, I’m [your sister’s] lawyer friend.)

I just sent [your sister] an email telling her every time I read a story in the news of someone who is prosecuted for receiving Social Security disability benefits after going back to work, I think about you and worry.   

It’s my understanding that you’re back to work.   I don’t know if you are still receiving disability benefits or not.   But, if you are, I’d really like to make sure that you know the rules about that.

I really, really don’t want you to run afoul of the law and wind up with a criminal prosecution on your hands.

Please contact me!

Her reply:

I don’t receive disability any more.  While I did do contract work and some full time work this year, I submitted every pay stub to SSA in person.  (Emphasis added.)

I also told them I had taken on full time work with health insurance and they told me I would now enter my 9 month review period.   So that was done awhile ago and I received my statement [ceasing my benefits] from them and all is kosher.

Thank you for asking.   I was hyper aware of how they work so I made sure to submit EVERYTHING to them and keep a paper trail.  (Emphasis added.)

Do you think that is enough?

Yes.  I think that is enough.

While I find that exchange utterly fascinating, most would not.   Imagine the headline:Casual man lying on couch with newspaper covering head in bright

Formerly Disabled Woman Follows Social Security’s Rules to the Letter Asking for Cessation of Benefits When Health Improves.

When it comes to news stories, the interesting ones get the press.   Salacious ones get even more.   The mundane, ordinary stories in which systems and people function as they should, go unmentioned.   But those stories, numerically, exist smack dab in the significant middle of the Gaussian bell curve of normal distribution.

When the relative volume of salacious stories is far greater than the relative number of occurrences, a skewed perception of reality results.    The mythos does not reflect the truthos. Old School Myths

Here, the myth is that most people applying for and receiving disability benefits are criminals.   The truth is that criminals are in the 2% Club.   They are rare.   They are outliers.

The non-partisan Government Accountability Office reported that improper payments of Social Security benefits occurs at a rate of just 0.6%, however, the American public’s sense is that there is a huge problem.   Fox News’ Megyn Kelly said, “just because [the Government Accountability Office] didn’t unearth the fraud, doesn’t mean it’s not being committed….”   Ms. Kelly just knows it’s there.

The American public is served up a steady diet of interesting and unseemly stories about “rampant fraud and abuse” in the Social Security disability program.   The American public is mired, not so much in misinformation, but in too much information of a kind.

Joseph Pulitzer StampWhen the press focuses on occurrences of fraud and abuse in far greater proportion to its relative number of occurrences in the scheme of the entire Social Security disability program, a distortion of reality results.

Two major problems arise from this distortion of reality:

1)   The American public has a distorted sense of reality, but it collectively believes itself to be well-informed and knowledgeable, and

2)  The American public and policy-makers demand reforms to the parts of the Social Security disability program that are essentially functional, failing to focus on areas that do require reformative attention.

Pressure builds for Social Security aggressively to go after frauds, to go after the people who receive disability benefits, but who attempt to go back to work.   And Social Security goes after them with prosecutory zeal.

And they should, right?

Consider this story published today in The Des Moines Register titled, des.m0331watchdog6137[1]Dying advocate needs some help.   This is the story of Kris Gerhard,  a disabled woman who continued to work answering “crisis calls” from her home while receiving Social Security disability benefits.

She is described as having …

been a champion all her adult life for people who really need one – children with autism, foster kids, those with mental disabilities and others with mental illness.   But now that she’s facing a fatal illness and down to her last $ 600, she is hard-pressed to find anyone who will advocate for her.

Social Security discovered Ms. Gerhard’s work activity, opened an investigation, and determined her benefits should have ceased in July 2012, given her earnings.   Social Security determined there was an overpayment of benefits of more than $ 10,000, and stopped her checks in February 2013.

Ms. Gerhard appealed the cessation of benefits immediately, but Social Security has yet to get back to her.   The Des Moines Register writer finds this appalling.

The story goes on:

What’s really disturbing about the Iowa woman’s story, however, is that because others needed her services, she tried to keep working in spite of her deteriorating health – and that decision is now hurting her….

She’s so good at her work, one state official tells me, that Gerhard got appointed to serve five counties:  Dallas, Greene, Webster, Guthrie and Carroll. (Emphasis added.)

“She’s an excellent advocate. Lots of other people contact her with questions – magistrates, attorneys, social workers and other advocates,” said Beth Baldwin, a 5th Judicial District court administrator who has worked closely with Gerhard over the years.   “She’s very well-respected, and I’d say rightfully so.”  (Emphasis added.)

Although Lee Rood, the writer of the story, meant well, she published a good deal of information indicating Ms. Gerhard was able to work, and therefore should not have been receiving disability benefits.   Furthermore, Ms. Rood made it clear that Ms. Gerhard should have understood Social Security’s rules – she is after all a person magistrates, attorneys, social workers and other advocates contact with questions. 

This is pretty damning information.

IGroup of multi ethnic business people sitting at court housesn’t this the rampant fraud and abuse about which we are all up in arms?

Megyn Kelly, what do you think?

The scandal of the Social Security disability program is not that it is rife with fraud and abuse.   The scandal does not live in the pinched ends of the bell curve.   Those stories are too … awesome.   Rather, the scandal of Social Security disability is much more mundane and subtle.

The scandal of Social Security disability fraud is that the rules are complicated, poorly understood, and people, even when they mean to follow the rules, run afoul of them unwittingly.   As has done Ms. Gerhard.

The scandal is that Social Security, being led by the persistently bad press about “rampant fraud and abuse” responds by amping up its ability to prosecute, when it should be amping up its efforts at educating recipients of disability benefits about the rules and how properly to comply with them.   So that when disabled people try to do what is right, try to go back to work, try to follow the rules – the rules are made clear.

The scandal of Social Security disability is that disabled people are pre-judged nearly universally as frauds, and criminals … and are treated as such.   They are surveilled, indicted and convicted.   The process of obtaining disability benefits and getting off of them is made more difficult from start to finish.

The scandal of Social Security disability is that the emphasis on criminalizing work activity that is inaccurately reported – even when there is no criminal intent to do so – discourages work activity.

What I find really disturbing about Ms. Gerhard’s story is that she tried good luck, best wishes wish you the best of luck and fortuneto comply with Social Security’s rules, and still could not.   She called Social Security but was given incomplete, scattershot information regarding compliance with Social Security’s complicated and nuanced rules for working while receiving disability benefits.   This put Ms. Gerhard in a dangerous spot:   she was poorly informed, but believed herself to be well-informed and knowledgeable.   And then, Social Security sent her on her way with no reasonable supports.   Good luck, Ms. Gerhard!

Carolyn Colvin, Acting Commissioner of Social Security, recently announced Social Security will open seven new Cooperative Disability Investigation units.   Cooperative Disability Investigators are Social Security’s fraud police.

I wish instead Social Security had Tutor advising his studentannounced it would train and deploy teams of people in every state to educate disabled people on how properly to report earnings and impairment-related work expenses.   So that when they want to – 98% of the time – they have a fighting chance to do so.

I wish instead Social Security had announced it had developed user-friendly paper worksheets and effective online tools onto which working disabled people could enter and submit earnings, and impairment-related work expenses to report – honestly and accurately – that relevant information to Social Security – monthly, in writing.  

These educational supports and tools are necessary so that when the Ms. Gerhards of the disability world call to report they are working, Social Security has in place proper supports and tools that assist them in complying.

These educational supports and tools are necessary so that people like my friend’s sister do not have to “submit every pay stub to SSA in person” or “be hyper aware of how [SSA works] … making sure to submit EVERYTHING to them and keep a paper trail.”   It is as if my friend’s sister understood she would easily be deemed a criminal and so went above and beyond.   This should not be necessary.

I wish instead Social Security did not itself fall for the media hype, did not pre-judge claimants and recipients of disability benefits as criminals, and understood them to be like the rest of us – 98% Club Members – who are just trying to get it right, and need some help doing so.