Cambodian Refugees Investigated In California

From InsideBayArea.com:

More than two dozen Cambodian refugees in Oakland and elsewhere in the East Bay are fighting allegations that they fraudulently applied for benefits from the Social Security Administration and say they were unfairly targeted. ...

Many of the Cambodians are patients of Mona Afary, a licensed marriage and family therapist who specializes in working with Afghans and Cambodian refugees. She now works with the refugees at the Center for Empowerment of Refugees and Immigrants in Oakland.

Afary has diagnosed many of her patients with post-traumatic stress disorder, sometimes several people in the same family, Weiss and Lunsford said. That — combined with what Social Security may see as Afary's lack of proper clinical training to make such diagnoses — could have triggered the investigations, Afary, her patients' attorneys and spokespeople for Social Security said.

The attorneys accused investigators of lacking the clinical training to assess whether someone was truly faking mental illness, as well as cultural insensitivity toward people who were traumatized by the harsh privations suffered under the Khmer Rouge. Many of the refugees came here in the 1980s. ...

This is not the first time Cambodians and their health care providers have been the target of Social Security fraud investigations. Similar investigations have taken place in Southern California, Boston and Washington state over the last decade. In those cases, some parties involved with the Cambodians were accused of fraud and others cleared ...

Barnhart Gone -- Who's In Charge?

Social Security has not posted the name of the person designated as the Acting Commissioner of Social Security now that Jo Anne Barnhart's term as Commissioner has ended. An anonymous post on the CONNECT board reports that Linda McMahon, Social Security's Deputy Commissioner for Operations has the job, although this conflicts with the previously established hierarchy which would have given Larry W. Dye, the Commissioner's Chief of Staff, the job. It is certainly possible that the White House made this decision, but has not sent out a press release on what they would consider to be a very mundane matter.

Interestingly, although Social Security's website shows the Commissioner's job as vacant, it shows Martin Gerry still as Deputy Commissioner for Disability and Income Security Programs, even though Gerry was brought in by Barnhart and seemed to be her right hand man. It is a bit hard to imagine Gerry working with another Commissioner.

Commissioner Nominee "Often At The Center Of Controversy"

A 2005 article in the Boston Globe described Michael Astrue, President Bush's nominee for Commissioner of Social Security, as being "often at the center of controversy." This is an intriguing statement which deserves scrutiny, although the scrutiny I can do is limited, since I have never met Mr. Astrue, nor have I even talked with someone who knows him.

The first controversial time in Michael Astrue's life, as best I can tell from looking at records available on the internet, was in 2001 when the newly elected President George W. Bush suggested Astrue as a possible Commissioner of the Food and Drug Administration (FDA). Astrue was never formally nominated for the position. Eventually, he was forced to withdraw his name from consideration due to the opposition of Senator Edward Kennedy. At the time the Senate was controlled by Democrats. Senator Kennedy, from Astrue's home state of Massachusetts, was chairman of the committee that would have considered Astrue's nomination. His opposition made Astrue's confirmation impossible. Kennedy's stated reason for opposing Astrue was that Astrue was employed in the pharmaceutical industry. This seems slightly surprising since Astrue was from Massachusetts and at the time had not worked long in the pharmaceutical industry. It would seem that almost anyone nominated to become FDA Commissioner would have some experience in working with the pharmaceutical industry.

One thing that might easily be missed is that even in 2001 the possible approval by the FDA of RU-486, the "abortion drug", was an issue. For Bush to have put Astrue's name forward, it is clear that Astrue must have given a promise to Bush to oppose RU-486, since this issue was of considerable importance to Bush. Although the RU-486 issue was not raised publicly at the time, there is no doubt that had Astrue become FDA Commissioner, RU-486 would have made him controversial.

The next "controversial" time period in Michael Astrue's life was in 2003. At the time Michael Astrue was Chief Counsel and Vice President at Transkaryotic (TKT), a biotech pharmaceutical company. Astrue resigned his job but was then rehired a month later as the company's CEO. Astrue said publicly that he resigned as Chief Counsel to work at the Hudson Institute, a conservative think tank, and to teach law at Boston University, but there is good reason to believe that he was trying to get away from a firestorm that was about to engulf TKT. The company's CEO, Dr. Richard Selden, was accused of making false and misleading statements to the public about the company's prospects for getting FDA approval for a new drug, while simultaneously selling some of his own stock in the company. What was alleged amounted to a "pump and dump", a technique usually associated with fly by night penny stocks.

Although the TKT board hired Astrue as the company's CEO in the wake of this scandal, it is far from clear that Astrue was blameless in the events that led to Selden's downfall. Selden later blamed company lawyers for misadvising him. Astrue was the company's top lawyer. Was Astrue unaware of Selden's misleading public statements about the company? Would not the rules of a publicly traded company have required Selden to notify Astrue before selling stock in the company? It was Astrue's job to keep anything like this from happening at TKT, but it happened.

In 2004 there was a small controversy. Michael Astrue had been Chairman of the Massachusetts Biotechnology Council, an important trade organization, but the Boston Globe reported that he withdrew his company's membership in the Council after the Council's executive director, Janice Bourque, was forced out. Astrue refused to comment publicly, but his apparent concern was that Bourque was forced out by larger biotech companies. There is no sign that any other company withdrew from the Council over the issue.

Transkaryotic (TKT) settled down after Astrue took over as CEO and Astrue was given much of the credit. However, in 2005, with the company's fortunes looking up, Shire Pharmaceuticals Group, a British company, made an offer to buy TKT. Two TKT board members were prominent in support of accepting the offer. Astrue and one other director opposed the sale. The two who supported the sale were partners at Warburg Pincus, a private equity firm, which had a 14% stake in TKT, worth about $200 million. In the end, the board of directors voted to accept Shire's offer. Astrue resigned and led a fight to persuade the company's shareholders to vote down the sale. Astrue lost again and the company was sold. During this process Astrue apparently argued that Warburg Pincus was selling out the company's shareholders, even though Warburg Pincus was a huge shareholder itself and Astrue never publicly identified any ulterior motive that Warburg Pincus might have had.

You have to wonder about the situation. Warburg Pincus had a $200 million stake in the company and no ulterior motive as far as we know. Warburg Pincus is in the business of knowing when to buy and when to sell stock. They must be quite good at it to have the kind of money at their disposal that allows them to take a $200 million stake in a company. Their opinion would be extremely influential with most people. In truth, this was nothing more than a question of valuation and Warburg Pincus had vastly more experience with valuing stock than Astrue. Why would Astrue embark upon such a quixotic adventure as opposing this sale? Was he simply upset that he would no longer be a CEO?

Astrue described the time period of 2001 through 2005 as "a pretty rock-and-roll five years." The question is how much of this was due to intrinsic characteristics of Michael Astrue and how much was due to the politics of 2001 combined with Astrue being employed in an extraordinarily dynamic industry.

A Boston Globe article from 2003 may give some insight on Astrue's character and give some idea of why he does seem to be at the center of controversy with some frequency: '' 'Mike is an incredibly moral guy,' said Dr. Burt Adelman, executive vice president of research and development for Biogen Inc., where Astrue served as general counsel. 'I suspect they got him back [at TKT] because he wasn't going to leave something he was committed to when they were having a problem. He doesn't walk away from a fight.' " The problem is that the flip side of "incredibly moral" is "self-righteous"and the flip side of "doesn't walk away from a fight" is "spoiling for a fight."

Does Astrue have the backbone to do what is needed at Social Security or is he an arrogant, inflexible man who will relentlessly drive forward some personal or political agenda? That is the question for the Senate. I think one can say that Astrue does not sound like the sort of man who, if confirmed, would meekly implement Jo Anne Barnhart's Disability Service Improvement (DSI) vision for Social Security.

The Social Security Game

The American Academy of Actuaries has posted a "Social Security Game" which allows anyone to test how their ideas would affect Social Security's future finances. In this game, merely eliminating the cap on earnings subject to the FICA tax eliminates 93% of the problem of paying future retirees. Creating private savings accounts as part of Social Security does nothing to solve the problem.

Fraud In Honesdale

The TimesTribune.com reports that Rosemary Garton of Honesdale, PA has pleaded guilty to Social Security fraud for cashing her late mother's Social Security checks for 20 years after the mother died. She first told authorities at first that her mother was living with relatives in Philadelphia.

And She Spent Some Of The Money At A Bingo Parlor

From the Tacoma News Tribune:

A federal judge sentenced a Tacoma woman convicted of Social Security fraud to 10 months in prison Friday. ...

Bland, the mother of a school-age son, was awarded federal disability benefits in 1996 after she claimed a bad back and an anxiety disorder made it impossible for her to work.

But two years later, she got her state cosmetology license and started working at her mother’s beauty salon without telling the government. She also spent part of her $550 in monthly benefits at a Fife bingo parlor.

DSI Won't Work Unless This Works

From Federal Business Opportunities, a website that lists opportunities for those seeking to do business with the federal government:

The Social Security Administration (SSA) has a requirement for the services of a contractor to develop an automated, Section 508 compliant*, profiling/screening tool (software) for identifying Administrative Law Judge (ALJ) disability decisions that are likely to be appealed to federal district court and remanded or reversed by the court. The contractor may also recommend the purchase and/or modification of an existing Commercial Off the Shelf (COTS) software package for the profiling/screening tool if an existing product can be identified.

On March 31, 2006, SSA published the final rules establishing a new disability determination and administrative appeals process effective August 1, 2006. Under the new rules SSA is gradually phasing out the Appeals Council?s review of disability claims and replacing it with a review by a Decision Review Board (DRB). The DRB will focus on identifying decision making errors as well as policies and procedures that will improve decision-making at all levels of the disability determination process.

SSA intends to select ALJ decisions for review by the DRB in several different ways, including the use of computer based predictive screening tools. It is envisioned that a sophisticated computer based profiling/screening tool could be developed to help identify unfavorable ALJ decisions that contain characteristics associated with federal district court appeals and remands or reversals. The profiling model will be developed using data recorded at the time of the initial level determination, ALJ decision, Appeals Council review, and the court action. This information includes the applicant?s age, education years, primary impairment, reason for the court remand, etc. The methods for selecting cases for DRB review are expected to evolve over time as more data are available and SSA gains more experience and knowledge in the use of computer-based tools. Any software will make use of current SSA databases and systems architecture already available, if applicable.

The Disability Service Improvement (DSI) plan does not work unless this profiling/screening tool works, since otherwise there will be far too many Social Security cases going to federal court. This would cause intolerable problems for the federal courts and for Social Security. No one knows if screening tools can be made to work, yet DSI is already underway.

Specialization Exam Topics

The North Carolina State Bar has posted a list of topics covered on the examination they gave in November 2006 to applicants to become certified as Social Security Disability Law specialists. The list appears below. The NC State Bar is the only state bar so far which has certified specialists in Social Security Disability Law. The National Board of Trial Advocacy (NBTA) also certifies specialists in Social Security Disability Law, although no state other than Tennessee fully accepts the NBTA Social Security Disability Law certification, to the best of my knowledge.

2006 Social Security Disability Exam Topics To Help Prepare For The 2007 Exam

Asterisks appear beside many of the topics. These asterisks signify topics that were problematic for those taking the 2006 examination. Below is an explanation of the asterisks.

* Missed by 25% or more of test takers
** Missed by 50% or more of test takers
*** Missed by 75% or more of test takers

Where an issue was presented in more than one question, the asterisk or asterisks shown reflect the question that was most frequently missed.

1/3 reduction rule*
Age as factor in disability determination
Alcoholism
Ambulate effectively
Amending alleged onset date**
Appeal of partially favorable decision***
Appeal deadline closely approaching**
Appealable decisions**
Bipolar disorder*
Burden of proof**
Chances of success at various levels of review
Childhood listings*
Close transference of skills*
Closed period cases
COBRA**
Computation of title II benefits
Computing date last insured**
Consultative examinations
Correction of Title II computation errors
Correction of Title XVI computation errors
Court remands
Cross examination of VE***
Death of claimant
Dependent benefits
Diabetes
Disabled widow and widower benefits
Disabled adult child benefits***
Diseases treated by various medical specialties
EAJA*
Effect of receipt of unemployment insurance benefits
Equaling listings*
Erosion of occupational base***
Escalation of claim*
Ethical issues in representing incompetent client**
Exertional and non-exertional impairments
Expedited decisions***
Factors that determine prospects for success of disability claimant**
Failure of claimant to appear for hearing**
Family relationships**
Fee agreement process
Fee petition process
Fees in termination cases
Fibromyalgia
Filing new claim at same time as appeal
Fully insured status
Good cause*
Grid regulations
Hearing continuance
Impairment related work expenses
Interim benefits
Listings*
Medical abbreviations
Medical terminology
Medicare eligibility***
Medicare Part B
Medicare only claims**
Medicine
NC Teachers and State Employees Retirement System, relationship to Social Security benefits*
Non-exertional impairments**
Not severe impairments
Obtaining medical evidence***
On record decisions**
Overpayment of attorney fee*
Overpayments
Passalong provision (Pickle people)***
Past relevant work
Period of disability
Post hearing interrogatories
Procedure on remand from Federal Court*
Protective filing dates***
Recognizing failure to file all appropriate claims***
Recognizing ethical issues in Social Security practice**
Re-entitlement period**
Reopening based upon mental incompetence*
Reopening based upon new and material evidence
Representative payee*
Res judicata and collateral estoppel***
Retroactive Medicare coverage
Retroactive effect of Title II claim
Return to work while claim pending**
RFC
RFC between two ranges of work**
Rulings**
Schizophrenia***
Sentence 4 versus sentence 6 remands*
Sequential evaluation
SGA
Social Security abbreviations
Spotting signs of retardation or mental illness**
SSI resources
SSI transfer of assets
SSI child disability
SSI benefits effective date
SSI -- requirement to file all other claims**
Subsidized employment*
Surviving divorced spouse benefits***
Sustained work activity
Transferability of skills
Trial Work Period*
Unsuccessful Work Attempts *
VA decisions**
VE qualifications***
Waiting period for Title II benefits
Withdrawing from representing claimant
Workers compensation offset, including issues raised by clincher agreements**
Worn out worker rule