Lax oversight made disability program ‘ripe for abuse’

Ralph B. Davis rdavis@civitasmedia.com

October 11, 2013

The following is the first story in a three-part series taking a closer look at abuses in the Social Security disability program, as detailed in a 166-page report released Monday by the Senate Committee on Homeland Security and Government Operations.

While local attorney Eric C. Conn has been the focal point of a detailed U.S. Senate report on abuses in the Social Security disability program which itself is titled, in part, “A case study of the Conn Law Firm” — the report also lays much of the blame on the Social Security Administration.

Although much of the media attention since the report’s release has focused on alleged collusion between Conn and former administrative law judge David B. Daugherty, the Senate report says lax oversight and agency pressure to move through cases as quickly as possible allowed the abuses to occur.

In addition, the report details numerous attempts within SSA’s Huntington, W.Va., Office of Disability Adjudication and Review (ODAR) to cover up evidence and discredit whistleblowers.

According to the report, SSA has seen applications for disability claims increase, thanks to the economic downturn and an aging workforce. In order to reduce a growing backlog of cases, SSA began putting pressure on judges to move through cases as quickly as possible.

“By 2006, the [SSA] was regularly receiving over 2.1 million applications for benefits per year, many of which were taking years to resolve,” the report says. “The focus, after 2007, on quickly reducing the SSA backlog increased the likelihood of poorly reviewed claims.”

That pressure apparently began within the Senate itself.

“During his confirmation hearing in January 2007 to become SSA Commissioner, Michael Astrue was told by Senate Finance Committee members the backlog was ‘irresponsible’ and an ‘outrage,’” the report notes. “Mr. Astrue said addressing it was his top concern, and the options were either a huge increase in SSA staff or ‘some radical change in the system.’”

By September of that year, SSA had settled on the latter, by simply mandating that judges do their work more quickly.

“In short, the plan involved asking employees to do more, faster,” the report says. “The goal was to ensure more cases were heard each year by spending less time on each case.”

Across the country, one office stood out for its commitment to reduce the backlog — the Huntington ODAR. And the report notes that the office apparently chose to meet its goals by any means necessary.

“While it is unclear if the practices at Huntington ODAR were widespread, the office used questionable and often inappropriate means to clear cases through the system,” the report says. “Many of these shortcuts appear to have violated agency rules and regulations.”

Within the Huntington ODAR, some staff members began expressing concerns about how the office was conducting its business.

“They felt the pressure to move cases quickly, but noticed that to do so, the office was cutting corners, sometimes in inappropriate ways,” the report says. “Their concerns, however, were overlooked, even as the office continued to use questionable practices.”

The result, the report concludes, was a program ripe for abuse.

“Decisions made by Congress and top agency officials to prioritize hearing cases quickly and reducing the agency’s backlog resulted in questionable decisions by [judges] and created an opportunity for the disability programs to be exploited,” the report says.

No judge in the Huntington ODAR was better at reducing the backlog that Daugherty, who quickly became the third most productive administrative law judge in the nation, deciding 1,375 cases in 2010 and awarding benefits in 1,371 of them, for an overall approval rate of 99.7 percent.

That ability to excel, however, conflicted with how Daugherty’s colleagues viewed him. One senior judge, the report says, described Daugherty as “intellectually lazy. That was probably his most obvious characteristic.” Another described him as “a spoiled little boy who grew up to become a judge.”

“Still another [judge] told the committee that when he expressed concern about quickly reviewing and deciding cases, Judge Daugherty advised him that ‘you’re just going to have to learn which corners to cut,’” the report says.

The report notes that Hearing Office Chief Administrative Law Judge Charlie Paul Andrus was the head of the Huntington ODAR who took on the task of reducing review times and case backlogs. The report notes he took that goal seriously.

“To encourage quick case processing, for many years Mr. Hall sent out weekly emails to the entire office with the subject line, ‘Where We Are,’ outlining how many cases had been decided and whether individuals in the office were meeting their goals,” the report says. “To track the progress of the office on a daily basis, Mr. Hall used a variety of detailed reports that constantly updated him on the status of cases.”

But while Andrus’ focus on efficiency helped the Huntington ODAR become one of the highest producing offices in the country, his methods did little to boost office morale. According to the report, one judge in the office, William Gitlow, said Andrus created a “boot camp” atmosphere.

“I can’t say our morale is much better,” Gitlow said in an email to a colleague, quoted in the report. “Our HOCALJ (Andus) is almost universally despised by the office personnel. We have record numbers of [Equal Employment Opportunity] complaints pending against management. Andus decided that the reason our office wasn’t producing was a lack of adequate pressure and chose to apply a boot camp mentality to the office.”

Into this environment stepped Conn, who leveraged his enormous caseload before the Huntington ODAR to obtain special treatment. This included Andrus creating a special scheduling system for Conn, separate from other cases.

“The new system expedited Mr. Conn’s clients and scheduled them in large blocks so that many of Mr. Conn’s clients would have hearings on the same day,” the report says. “It also ensured that all of his hearings would happen at Huntington ODAR’s remote site in Prestonsburg.”

Despite the special accommodations, the report says Conn developed a special relationship with Daugherty, resulting in Conn cancelling his clients hearings “if he discovered the case was assigned to a judge other than … Daugherty.”

And despite a requirement that cases be assigned to judges on a rotational basis, Conn would also become available when Daugherty was working, but became “suspiciously unavailable” when other judges were scheduled to hold hearings in Prestonsburg. At one point, Andrus confronted Conn about “judge shopping.”

“After confronting Mr. Conn directly about his ‘suspicious’ availability only when Judge Daugherty was scheduled to hear cases in Prestonsburg, he stated Mr. Conn replied, ‘Well, it was good while it lasted,’” the report says. “This confrontation, however, does not appear to have significantly changed Mr. Conn’s practice.”

Conn’s preference for Daugherty also appears to have been mutual. The report notes that Daugherty would cherry-pick cases in order to be assigned to hear Conn’s cases, and would even reassign himself to a Conn case after it was assigned to another judge.

As word spread that Conn’s cases were heard more quickly than those represented by other attorneys, and were almost always approved, Conn was able to pick up business from across the country. But despite where the clients lived, all of them had their cases heard in Prestonsburg, resulting in Conn being responsible for half of the office’s caseload.

“A key reason Mr. Conn had so many cases at the Huntington office was that he exploited a loophole that enabled him to direct cases from other parts of the country to the office for review,” the report says. “Essentially, he had his claimants ‘waive’ their right to a hearing near where they lived and elect instead to travel to Kentucky.”

Typically, under SSA guidelines, those seeking disability benefits are entitled to a hearing within 75 miles of where they live.

As a result, Conn and Daugherty were able to award disability claims in almost assembly-line fashion. Between 2005 and 2011, Conn brought 3,143 cases before Daugherty, none of which were denied and only 18 of which were dismissed — an approval rate of 99.99 percent.

The report notes a number of recommendations, based on its findings in the Conn Law Office and Huntington ODAR. Among them are:

• To strengthen the quality review process for awarded claims. Once claims are awarded, there is currently no review, because the claimant has no need to appeal. The report suggests SSA implement procedures to review award decisions.

• To review firms earning the most fees from disability cases, “in order to detect abusive conduct.”

• To strengthen judicial analysis of medical opinions and provide focused training for administrative law judges.