An Outlier

     Social Security Administrative Law Judge Drew Swank was mentioned here recently because of a law review article he wrote. He's now drawing attention for the decisions he issues on disability claims. From the Virginia Lawyers Weekly:

[Swank] has one of the highest denial rates in the country. Swank rejects nearly eight of every 10 claims for disability benefits, according to a computer analysis of his rulings.
Attorneys and claimants who’ve had cases before Swank say he is unfair....

“All I’ve ever wanted is for him to do this right,” said Bruce Billman, a Richmond-area attorney who represents people seeking assistance under the Social Security Disability Insurance program.

“If he wants to turn people down, at least do it on the proper evidence, using the proper witnesses, and give us a chance.”

Billman is a former president of the National Organization of Social Security Claimants’ Representatives. He has filed several complaints with the Social Security Administration, accusing Swank of failing to provide due process. ...

It’s not just statistics that have raised concerns among parties who’ve gone before Swank.
Attorneys and claimants accuse Swank of disregarding or excluding the findings of their physicians and vocational experts. ...

Billman, who has practiced disability law for more than 30 years, has filed more than 400 pages of complaints against Swank with the Social Security Administration’s chief administrative law judge in Falls Church. The documents describe what Billman sees as numerous instances of unfairness toward his clients.

However, no action has been taken against Swank.

“He is untouchable,” Billman said. “And every time you file a complaint and nothing gets done, it just reinforces that with him. There’s no system in place to protect you from somebody like this.”

Billman said he complained about Swank in 2008. Until that point, the judge had denied about half of his cases, Billman said. Since the complaint, he said, Swank has denied about 90 percent of his cases. ...

Over several weeks while researching this article, the reporters asked to interview Swank and emailed him questions. Swank said that he wants to defend his record but that he has not received permission from the Social Security Administration to talk to the media.

“The policy originates with the chief judge’s office in Fairfax, VA,” Swank wrote in an email.

      Interestingly, Swank has an article forthcoming in another law journal whose title strongly suggests that he believes that Social Security has a lax approach to misconduct by those who represent Social Security claimants. People who live in glass houses ...

American Exceptionalism Must Prevail -- Don't Follow Foreign Practices, Especially Those Likely To Cause Chaos

     According to a report from The Telegraph, the British government has decided that it is paying disability benefits to too many people. The government's plan is to cut a half million Britons off disability benefits. This would be a quarter of those drawing the most important type of British disability benefits, the Disability Living Allowance. Reviews are already underway in the other type of British disability benefit, the Incapacity Benefit, and 60% of those recipients are being cut off benefits. 

     The government minister responsible for the changes in disability benefits says it is "scaremongering" to allege that the British government is "slashing" disability benefits.

Let's Watch To See If Michael Astrue Goes On Peterson's Payroll Next Year

     From Huffington Post:

Peter Peterson, a Wall Street billionaire who has been calling for cuts to Social Security and other government programs for years, is hosting a "fiscal summit" Tuesday that brings together Treasury Secretary Timothy Geithner, former President Bill Clinton, Rep. Paul Ryan, House Speaker John Boehner, Tom Brokaw and Politico's John Harris, among a host of other elites ...

The bipartisan luminaries will be carrying on a discussion to a large extent framed by Peterson, who has spent lavishly to shape a national conversation focusing on the deficit rather than on jobs and economic growth. ...

According to a review of tax documents from 2007 through 2011, Peterson has personally contributed at least $458 million to the Peter G. Peterson Foundation to cast Social Security, Medicare, Medicaid and government spending as in a state of crisis, in desperate need of dramatic cuts. Peterson's millions have done next to nothing to change public opinion: In survey after survey, Americans reject the idea of cutting Social Security and Medicare. ...

But Peterson has been able to drive a major shift in elite consensus about government spending, with talk of "grand bargains" that would slash entitlements, cut corporate tax rates and end personal tax breaks, such as the mortgage deduction, that benefit the middle class.

To put Peterson's spending in context, all corporations and unions combined spent less than $4 billion on lobbying in 2011. ...

Peterson has been pushing his fiscal arguments by spreading that half-billion dollars widely across the Washington spectrum, putting both Democrats and Republicans on his payroll. ...

You've Got To Be Kidding Me!

      I have heard from an attorney who submitted a Freedom of Information Act request for the identity of the Administrative Law Judge scheduled to hold a hearing. This is the response that came back:

I am responding to your request on behalf of your client, _____, for the name of the assigned Administrative Law Judge (ALJ) currently scheduled to conduct his hearing.  

 I am withholding the name of the ALJ assigned to hear this case under FOIA Exemption 2 (5 U.S.C. § 552(b)(2)). This exemption protects from disclosure records "related solely to the internal personnel rules and practices of an agency." The information you seek is the internal personnel assignment of an agency employee to a particular case. Therefore, you are not entitled to it under FOIA.

I am also withholding the ALJ's name under FOIA Exemption 7(E) (5 U.S.C. § 552(b)(7)(E)). Exemption 7(E) exempts from mandatory disclosure records or information compiled for law enforcement purposes when production of such records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." Information may fall within this exemption even if it was originally compiled for non-law enforcement purposes, if it is later related to crime prevention or security measures. Milner v. Department ofNavy, 131 S. Ct. 1259, 1272-73 (2011) (Alito, J., concurring).

      I salute Social Security for not just stalling on these requests but I have to say that this response falls into the "You've got to be kidding me" category. The Attorney General has warned agencies not to expect the Department of Justice to automatically defend Freedom of Information Act denials. I have a hard time believing that the Department of Justice will choose to defend this. And quoting an Alito concurrence that has nothing to do with the issue at hand! That's waving a red flag at Eric Holder's Department of Justice!
     I guess we will find out soon if the Department of Justice will choose to defend Social Security on its "secret judge" policy. I hear that there is at least one civil action pending on this issue and the government's answer is due this month.

Remember That Picture Of Nixon And Elvis?

     From the Associated Press:

Elvis returned to the list [of most popular baby names] at No. 904, after dropping off for a year. When Elvis dropped off the in 2010, it ended a run that had started in 1955.

[Social Security Commissioner Michael] Astrue, a big Elvis fan, said he was all shook up when Elvis left the list.

"Congress may not listen to me," Astrue said. "But God bless the American people for listening to me last year when I raised concerns about Elvis dropping off."

ALJ Krafsur Resigns After DUI Arrest

     Gerald Krafsur was an Administrative Law Judge (ALJs) at Social Security's office in Kingsport, TN. He was arrested on May 2, 2012 for driving under the influence and speeding.  My understanding is that he has now resigned. I don't know what happened after the arrest but Krafsur had a history of approving almost all claims that he heard.

     What has happened when other ALJs got into this sort of trouble? Don't try to tell me this hasn't happened before. With almost 1,500 ALJs, it's no insult to say that drunk driving charges are going to happen from time to time.

Update: The Wall Street Journal says that Krafsur is on paid administrative leave.

Most Popular Baby Names

     Social Security has released its annual list of the most popular names given babies. Here it is:

Boys:

Jacob Mason William Jayden Noah Michael Ethan Alexander Aiden Daniel

Girls:

Sophia Isabella Emma Olivia Ava Emily Abigail Madison Mia Chloe

      It's interesting how many of the names come from the Old Testament: Jacob, Noah, Michael, Ethan, Daniel, Abigail, and Chloe by my quick review. I don't think any of the names come from the New Testament. Is there some meaning in the relative unpopularity of Mary, Matthew, Mark, Luke, John, Peter, Paul, etc.?

     Update: Actually, Chloe is a New Testament name. 1 Corinthians 1:11.

Does Michael Astrue Realize That Dick Cheney No Longer Controls Federal Information Policy?

     I have heard a report that since Social Security adopted a policy of keeping the identity of the Administrative Law Judge (ALJ) holding a hearing a secret until the day of the hearing that Social Security has received a large number of Freedom of Information Act (FOIA) requests for the identity of the ALJ holding a specific hearing. I have some familiarity with the FOIA and I have trouble imagining any basis that Social Security would have for withholding that information. However, Social Security will inevitably stall on these requests until after the hearings have been held, rendering the FOIA requests pointless. This appears to me to contradict Obama Administration policy.

     On his first full day in office, Barack Obama issued a memorandum to the heads of all federal departments and agencies, including Social Security, stating that "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. ...All agencies should adopt a presumption in favor of disclosure ... Disclosure should be timely...." This was a response to extraordinarily secretive Bush Administration policies, reportedly initiated by Dick Cheney. Under Obama's directive, the Attorney General was to issue further FOIA instructions. Those instructions state that "...[A]gencies should make it a priority to respond in a timely manner. Timely disclosure of information is an essential component of transparency. Long delays should not be viewed as an inevitable and insurmountable consequence of high demand."

      Is the "secret ALJ" policy in accordance with Obama Administration policy? Is intentional delay in responding to simple FOIA requests for the identity of the ALJ holding a hearing in accordance with Obama Administration policy?

     Update: By the way, you can make an FOIA request online. How would Social Security deal with thousands of such requests?