"When people are injured doing high risk jobs and we find they are suffering from injuries sustained as a result of those jobs, we have a tendency to not have compassion for them because “it’s their own fault.” Furthermore, because of the invisible nature of their illness, we often do not believe them. If we do actually believe them, we either blame them causing them shame or dismiss their issues altogether.

Yet, if we know the apparent cause of illness and injury, do we show compassion and care? Or do we turn away and let these individuals fend for themselves? Most people do not take on risky jobs with the intent of becoming permanently injured and disabled. They use all kinds of safety measures and equipment to lessen the risk of injury.

What about the risk of driving a car? I think of those who were injured due to vehicle crashes, such as Dr. Margaret Ferrante and Hannah Andrusky, or from a rock climbing accident such as Angela Pierce. If they were at fault for causing the accident, would we look differently at them and dismiss their injuries just like those who participate in risky jobs and hobbies?

We may believe someone more if there appears to be an obvious reason for their illness or pain. Imagine the lack of belief when a cause of a person’s illness can’t be determined.

. . . 

This brings up a question in regards to the disability and illness community. Why do people who live with illness, pain and disability and whose symptoms are invisible tend to be looked upon as guilty of faking or lying about their situation? It seems that they are guilty until proven innocent. Although doctors have already determined their condition by spending time with the patient and putting them through tests, we still often believe we know better.

Sometimes our loved one who is suffering has yet to be diagnosed and, in this case, we think, “Well, if a doctor can’t figure it out, then maybe the person really is faking.” Yet, even doctors admit that many patients have complicated cases and a diagnosis may take years and even decades to determine. During this time, the person living with the pain and illness daily continues on in misery while having their symptoms dismissed by friends and family."

It’s Your Own Fault | Disability.Blog http://usodep.blogs.govdelivery.com/2014/01/13/its-your-own-fault/

Here is a more technical version of the same principle from Judge Posner:

As countless cases explain, the etiology of extreme pain often is unknown, and so one can't infer from the inability of a person's doctors to determine what is causing her pain that she is faking it. E.g., Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (per curiam); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (per curiam); Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The administrative law judge followed up the passage we just quoted by saying "one would expect that the claimant's hysterectomy or oophorectomy [the surgical removal of the ovaries, or one of them] would have given her some relief but those procedures did not . . . . The claimant's alleged pain remains." The fact that a medical procedure fails is weak evidence that the patient is a malingerer; and since the judge said merely that she didn't find the plaintiff's testimony "entirely" credible, we can't tell whether she thought her a malingerer.

Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)

 

 

 

 

 

Award and denial rates at the Milwaukee hearing office

Here is a sample from the spreadsheet adapted from SSA data, showing all of the Milwaukee Wisconsin ALJ’s with decisions at the time SSA published its data (for 9-29-12 thru 9-27-13). These data suggest that there is no meaningful inter-rater reliability across judges.

Because of this unreliability in decision making across ALJs, I have argued for a long time that the Social Security adjudication program is no more reliable than a flip of a coin.  In short, SSA's adjudication system is not fair because it is not reliable.  That is no longer a unique idea.

 

From the Editorial at the Chicago Tribune:

Judicial performance statistics show wide disparities in the awarding of benefits. You can run into Scrooge or Santa Claus, depending on where you are. In the last six months of 2013, judges in Illinois approved 44 percent of their cases, roughly even with the national average of 43 percent. But judges in the Evanston office approved 62 percent while those in Peoria approved 38 percent.

The SSA has pledged to follow up on suspicious patterns. If a judge is approving or rejecting practically every application, or is moving so many applications that it's clear they're not getting enough scrutiny, the judge should be required to justify his record.

 The rancid abuse of Social Security disability program   Editorial

The argument from the Tribune that there is not enough oversight of SSA judges is not quite right.  One of the best ways to evaluate how well an ALJ is doing is to see how many times he or she has been reversed by a District Court or the Appeals Council and to read the remand orders.   There is plenty of oversight by federal courts and SSA, but SSA keeps the results from the general public.  District Court orders reversing an ALJ's decision rarely give the ALJ's name.  SSA never releases data about its specific ALJ reversals by the Appeals Council, and SSA will not release data showing District Court reversals by ALJ.  How about it SSA, isn't it time to release those data to the public?

 

I put SSA's September 2013 ALJ disposition data in a spreadsheet with calculations showing the percentages of favorable and unfavorable decisions.  But that does not tell us how many times each ALJ had been reversed. It's time for SSA to tell the public the entire story about each ALJ.

Here are SSA's data:  http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html

You can download my spreadsheets here and see what your chances are of winning your case before you go to your hearing.  Good luck!

Open Document format

Microsoft XLS format

 

This posting was updated on January 16, 2014

 

 

 

 

 

Some kinds of disability fraud happen every day.  For example:

 

On the other hand, some kinds of alleged disability fraud take on special significance:

 

;

 

 

James Publishing has made an excerpt from my book available for free.  Take a look.  This is just a small part of what the entire two volume set offers!

– 79 pages
– Sample cross-examination questions and letters
– Instantly accessible via a link to download a Microsoft Word document

 

attacking-vocational-expert-testimony

Free!

by David F. Traver

79 pages

Published 7/13

 

 

 

 

 

 

 

 

 

 

 

"WASHINGTON—The Social Security Administration, smarting from recent scandals, this weekend is set to tighten its grip on 1,500 administrative law judges to ensure that disability benefits are awarded consistently and to rein in fraud in the program.

The agency is rewriting the job descriptions of its judicial corps, allowing officials more latitude to crack down on judges who are awarding disability benefits outside the norm.

Many judges have operated as if they were independent of the agency and awarded or denied benefits based on their own judgments. A few weeks ago, the SSA notified the judges of the changes.

The job descriptions will no longer include the words "complete individual independence," and will also clarify that the judges are "subject to the supervision and management" of other agency officials, according to a draft reviewed by The Wall Street Journal."

Government Pulls in Reins On Disability Judges - WSJ.com

Is your ALJ an "outlier" that will deny or pay your case?  Check the data here.