Trapped: Unemployed Long-Term, On Government Benefits, With No End in Sight By Ken K. Gourdin I hate Paul Krugman.

1 Simply seeing his picture or byline on an op-ed usually is enough to deter me. At most, I might read the headline. Beyond that, I know what hes usually going to say: Conservatism, Conservatives, or [Insert-Conservatives-Name-Here] is (or are) whats wrong with America. If we could simply get rid of Conservatives and/or Conservatism, the United States of America automatically would transform overnight into a Nirvana/Utopia. So the fact that Im about to quote him here should tell you something. While I disagree with Krugman that inexorably increasing government spending is the magical panacea that will alleviate our economic woes, his description of the plight faced by the longterm un- and underemployed is spot-on. He says: It goes without saying that the explosion of long-term unemployment is a tragedy for the unemployed themselves. But it may also be a broader economic disaster. The key question is whether workers who have been unemployed for a long time eventually come to be seen as unemployable, tainted goods that nobody will buy. This could happen because their work skills atrophy, but a more likely reason is that potential employers assume that something must be wrong with people who cant find a job, even if the real reason is simply the terrible economy. And there is, unfortunately, growing evidence that the tainting of the long-term unemployed is happening as we speak.2 Krugman goes on to cite a study conducted by two Northeastern University researchers who tested the hypothesis that employers are less likely to hire the long-term unemployed even when their qualifications are better. The researchers sent out 4,800 fictitious resumes, and found that those who reported being out of work for six months or more got fewer calls back than those who were employed, even when those in the latter group were better qualified than those in the former.3 As Ive written elsewhere on the blog, an old Chinese proverb says, Give a man a fish, feed him for a day; teach a man to fish, feed him for a lifetime.4 Where I believe Krugman and his likeminded fellows (including President Obama) err is in thinking that the best way to solve the problem is to keep giving away fish. As I will explain in greater detail below, while I am not against the government giving monetary assistance to the poor, if ones proposed solution to the problem stops there, eventually the government will run out of fish. It would be much better to help the poor get their own fish. There are other dimensions to this problem. I have received Social Security Disability Income (SSDI) off and on since approximately the year 2000. In that time, I have received an advanced degree (in 2005) and have become certified as a paralegal by the National Association of Legal Assistants (in 2010). I would gladly return to the workforce if I were presented with an opportunity for which I am well suited and that matches my education, skills, and interests.

While I once set my sights on becoming a member of the criminal justice system and was hesitant to consider opportunities outside that small qualification and opportunity window, I would be willing to do something I never dreamed of doing during my education, from civil litigation to transactional work, as long as such a position took notice (however slight) of the efforts I have made to make myself marketable in the legal field. In fact, forget legal support work; I would even perform manual labor if I thought I could last for any length of time in such a position. In a recent column, syndicated columnist Rich Lowry tells the story of Kentucky disability lawyer Eric C. Conn, who has made more than $3 million a year helping claimants apply for Social Security Disability Income. Conns practice, Lowry says, specializes in extracting (often dubious) disability benefits for his clients from the United States government, and enriching himself and people around him in the process.5 I thought that this possible Conn-job was worth a closer look. (To be fair, although Im tempted to point out that Mr. Conn is aptly named, since Ive never heard his surname aloud, I dont know whether the o is pronounced like the o in on, or like the o in cone.) At an y rate, leaving aside the issues of surname pronunciation and of whether someone is aptly named, I decided to investigate Lowrys assertions further. So I looked up and read a 2011 Wall Street Journal report about Conn and his confederates in the Huntington, W. Va. Office of Disability Adjudication and Review (ODAR) by WSJ reporter Damian Paletta6, as well as the staff report from the Senate Committee on Homeland Security and Government Affairs, How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Countrys Most Vulnerable: A Case Study of the Conn Law Firm.7 The latter report was issued pursuant to a hearing that was held on October 7, 2013. To be fair, although Paletta cites the high approval rate of disability appeals among a small number of administrative law judges (ALJs) who hear them7, these sources present little (if any) other evidence that the problems they discuss are widespread or systemic (as the subtitle of the latter report indicates). Even if these problems occurred in only one office, however, thats bad enough: this isolated problem resulted in billions of dollars in benefits being awarded to people who failed adequately to show that they deserve them, but the government, because of due process issues, likely will have a difficult time revisiting (and revising) the decisions to award those benefits. Still, no advocate, however persuasive, could succeed in winning benefits for his client if no judge were receptive to his arguments that such benefits should be awarded. (Ill use the term claimant representative, since one need not be an attorney to represent clients [claimants] in proceedings conducted before ALJs in the Social Security Administration.) And Conn found a particularly receptive listener who was highly sympathetic to his arguments (such as they were) in the person of one particular ALJ at the Huntington ODAR, Judge David B. Daugherty. Judge Daugherty apparently feels that many of the ALJs who hear appeals of disability claims which are denied at lower levels of the SSA are, unlike himself, too tight fisted

and should have been more generous, as, according to Paletta, he once reportedly groused to a colleague, They act like its their own damn money were giving away.8 Daugherty is (in his case, was) far from the only ALJ at the SSA who has been generous with the governments (read, the taxpayers) money, however. The WSJ report also notes, In the first half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heard just a handful of cases. More than 100 awarded benefits to 90% or more of applicants, according to agency statistics.9 In recent years, there has been a sharp increase in the number of people applying for benefits without a corresponding increase in staff to handle the increased workload. This has led to a backlog of applications for, and increased wait times for decisions regarding, disability benefits. The Committee Staff Report notes: Once the Senate confirmed [incoming Social Security Administration] Commissioner Michael Astrue, SSA began developing a plan of action, which it made public in September 2007. In short, the plan involved asking employees to do more[, and to do it] faster. The goal was to ensure more cases were heard each year by spending less time on each case.10 The report also notes, however, that the concern of SSA decisionmakers for speed was not matched by a corresponding focus on quality: At the same time [as SSA implemented the plan for clearing the backlog], however, questions were being raised whether the backlog plan was as successful as it appeared. The plan put enormous pressure on SSAs components to post big numbers, which they did. In at least some instances investigated by the Committee, though, agency employees appear to have done so by cutting corners and reducing the attention given to each case and issuing questionable decisions.11 Judge Daugherty, especially, essentially was a rubber stamp. The Committee Staff Report notes: During 2010, the last full fiscal year in which he decided cases, Judge Daugherty was the third most productive ALJ [in the Social Security Administrations appeals system], deciding 1,375 cases and awarding benefits in 1,371 of them an approval rate of 99.7 percent. [Footnote omitted.] In 2011, he decided 1,003 cases, awarding benefits 1,001 times. [The average approval rate for ALJs agency-wide is approximately 62 percent].12 Indeed, the concern of would-be-whistleblower employees over questionable methods and decisions was proven well founded by Daugherty himself, who freely admitted cutting corners (not to mention encouraging others to do so). The Committees report noted his response to a fellow ALJs concerns over his methods, noting that when this ALJ attempted to raise those concerns with Daugherty, Daugherty told him, Youre just going to have to learn which corners to cut.13

One of the corners Daugherty cut was to severely shorten the length of his hearings. Hearings often are scheduled at the ALJ level to provide claimants the opportunity to present evidence that they meet the requirements to receive benefits under federal disability programs. Although such hearings normally last 45 minutes to an hour, Daugherty scheduled so-called rocket dockets in which he held up 20 hearings in a day, fifteen minutes per hearing.14 Interestingly, according to the WSJ report, one of the reasons Daugherty proffered for holding rocket dockets is because he has dyslexia. For that reason, he said, he preferred to follow a timetable in which he holds many hearings over a few days each month rather than holding a few hearings each day. Holding hearings within just a few days allows me sufficient time to review and prepare for [them], resulting in full and complete knowledge of the documents in the case prior to hearing, he added.15 Seemingly, it would make more sense that most people, even (and perhaps especially) those who are dyslexic, would suffer from the opposite problem, especially if the facts of many of the cases are similar (as disability claims likely would be). Attempting to review too many cases in too short a time might cause most people to confuse the facts of one case with those of another. Another of the corners Daugherty cut was that, for the vast majority of claims he considered (and I use that term loosely), he never bothered to hold a hearing at all. The Committee Staff Report says this about cases without a hearing: Part of encouraging judges to decide a higher number of cases included allowing ALJs to review cases to determine if they could be decided on-the-record (OTR) based upon medical evidence in the case file without an ALJ hearing. . . . [I]t appears this policy was abused in order to decide a higher-than-average volume of cases with a minimal level of effort and scrutiny.16 One of the witnesses who testified before the Homeland Security and Governmental Affairs Committee as to the potential for abuse in the on-the-record process is Judge Debra Bice, who at the time of her testimony was the SSAs Chief ALJ. Bice noted two problems with the process. One is that an ALJ may miss an opportunity to hear crucial evidence if he foregoes the opportunity to hear from a claimant firsthand; and the other is that if an ALJ screens cases and cherry-picks (my term) those that are easiest to decide by simply doing so on the record, claimants with more complex cases (who are, many times, most in need of an expeditious decision) are left waiting.17 Another of the corners Daugherty cut was inordinately relying on disability evidence which had been supplied by claimant representatives (especially by Conn). One form used by ALJs to decide eligibility for disability benefits is called a Residual Functional Capacity (RFC) evaluation. When a person claiming a physical or mental impairment applies for disability benefits, an evaluator (in the case of a claimed physical disability, a physician; and in the case of a claimed psychological disability, a psychologist or other mental health professional) is supposed to examine the claimant to determine the nature and extent of his disability, and should complete the form accordingly.

Rather than having the evaluator complete the form, Conn did so. Congressional committee staff discovered that Conn supplied doctors evaluating his clients who claimed physical disabilities with one of fifteen pre-filled, boilerplate (my term) versions of the physical RFC form, and he supplied psychologists evaluating his clients who claimed psychological disabilities with one of five-prefilled, boilerplate versions of the physical RFC form. While because each individual has different abilities and ailments, and the forms require a complex set of data, finding two RFCs exactly alike should have statistically been an extremely rare occurrence, this happened frequently with Conns clients.18 In a letter to the Senate Permanent Subcommittee on Investigations, Conn attorney Pamela Marple attempted to defend Conns use of supplemental medical opinions: In certain cases, she wrote, the Conn Law Firm procures a supplemental medical opinion [bold italics in original] in order to advocate for its client and explain why the SSA record supports a favorable decision. 18 But, as we have seen, it was Conn (rather than any of the medical or psychology experts he consulted) who provided the opinion; the expert merely signed the boilerplate form provided by Conn, and it was prepared without regard to any other information (information which may well have conflicted with it) in the SSA record. Nor were RFC evaluations the only evidence Conn provided to Judge Daugherty. While preparing the forms included at least the perfunctory involvement of a third party, in many cases, Conn manufactured medical evidence from whole cloth without anyone elses involvement at all (at least when it came to interpreting the evidence). Conn was a high-volume user of a particular medical imaging clinic. In an effort to bolster their disability claims, he routinely sent claimants to this establishment for x-rays. However, rather than allowing the professional staff at the clinic to interpret the x-rays, in the orders he provided to the clinic, Conn emphasized, WE DO NOT WANT THE FILMS READ BY ANYONE!!!! [Emphasis in original, footnote omitted.]19 Claimants then would return to Conns office with the x-rays, where he used information gleaned from the Internet to write descriptions supposedly interpreting them. Another way Daugherty cut corners was by inappropriately colluding with claimant representatives, particularly with Conn. One way the judge colluded with Conn is by telling him what information he needed in order to approve claims. Each month, Daugherty provided Conn with a list of claimants whose applications he intended to approve, known by personnel in Conns office by Daughertys first two initials as DB Lists. The DB Lists included notations as to what type of evaluation he needed in order to approve the application for benefits. For example, the list might contain the notation Physical, Mental, Either, None, or Both by a particular claimants name. Or, the notation next to some names simply said, Whatever Eric [Conn] wants.18 Whereupon Conn obligingly provided one of the boilerplate RFC forms previously mentioned. Daugherty also infringed on the independence of his judicial colleagues by revisiting cases in which they had already denied disability claims. Nor were RFC evaluations the only documents Conn prepared for others to sign. Another way Daugherty colluded with Conn is by allowing Conn to draft, in whole or in part, the decisions Daugherty signed. As one measure used in an effort to clear its backlog of pending claims, the SSA instituted what it calls Findings Integrated Template (or FIT) decisions, which already included the elements necessary to find that a claimant is disabled and, thus, qualifies for

benefits. The Committee Staff Report indicated that FIT decisions often involved collaboration between judges and claimant representatives, after which the representatives would draft decisions for ALJs using the language the ALJ suggested.20 While it is not uncommon in the legal profession for attorneys to draft documents for judges to sign, and while hearings before ALJs to hear Social Security claims are not adversarial in the traditional sense, any ex parte (only one side heard from) collusion between an attorney and a judge before a judge had heard a matter in court (or, in the case of Social Security claims, at a hearing) would be highly improper. And while other documents, such as warrants and orders, may be drafted by attorneys for judges to sign, it is all but unheard of for an attorney who is not one of the judges clerks to draft an opinion for the judge to sign. In summary, Judge Daugherty cut numerous corners in an effort to appear productive and to help the SSA clear its backlog of disability claims in at least the following four ways: Instituting rocket docket, perfunctory hearings; deciding thousands of cases on the record without holding hearings at all; inordinately relying on evidence (evidence in which there often was little variation, except for changed names and Social Security numbersif the evidence wasnt manufactured outright by Conn, such as the x-ray interpretations) provided by claimant representatives; and inappropriately colluding with claimant representatives in drafting opinions. In return for Mr. Conn making his job so much easier, Judge Daugherty likewise extended preferential treatment to Mr. Conn, as well, in violation of numerous SSA policies. For example, to prevent allegations of favoritism, the SSA has a strict judicial rotation policy; in order to ensure fairness to applicants, it has a policy that oldest claims are to be heard first; and in order to ensure that applicants are not unduly inconvenienced, it has a policy that claims are to be handled by the office in closest geographical proximity to them. However, all of these policies were violated for Conn.21 In a recent Op-Ed submitted to (but declined for publication by) The Tooele Transcript-Bulletin in Utah, my local semi-weekly newspaper, I recently had this to say about being a recipient of government benefits while also being among the long-term unemployed: I receive Social Security Disability Income. I recently filled out a form to have my eligibility reviewed, I used a space that was meant to allow me to elaborate on previous answers to request further assistance, instead. Provided I could secure employment that makes appropriate allowance for my disability, I wrote, I would love to work. But I need assistance reentering the workforce. Because it wasnt responsive to any of the questions on the form, that answer was ignored. Some bureaucrat reviewed my form, saw that I gave all of the right answers to the actual questions, and approved me to continue receiving checks. I completed my professional education in good faith, fully intending to find a job preferably in my field, but outside it if necessary. But the authority responsible for

licensing the members of that profession denied me the license necessary to practice it. And even if I settle for something outside of my desired profession, human resources conventional wisdom allegedly is that anyone who has been unemployed for longer than six months need not apply. (I dont know what that now-sizeable proportion of the population, which includes me, is supposed to do instead.) An explanation about the bio that follows this column is in order. Yes, I am certified as a paralegal by Tulsa, Okla.s National Association of Legal Assistants. Unfortunately, I have had difficulty finding work in that field (not to mention in any other). Probably because no one in Washington is currently running for office, there is little conversation right now about what government might do to facilitate job creation. (That hasnt happened since before the 2012 election.) Apparently, Obama and his team have settled on job creation as a sales pitch. Whatever we want to do, they apparently have said, well just say that it creates jobs. For example, giving people public benefits creates jobs; extending the unemployment benefit period creates jobs; and healthcare reform creates jobs. On the other hand, public benefits (such as food stamps, disability, Medicare, and Medicaid) have exploded under Obama, while the labor force participation rate (the number of people who have, or are seeking, jobs) has plummeted. If the latter statistic were as high now as it was in 2009, the unemployment rate would be over 11 percent. If you think such criticism of Obama is unfair, you might be right: the only jobs government can create are government jobs. (Obama has created plenty of those.) On the other hand, government can do a lot to interfere with private sector job creation, such as enacting difficult new laws and regulations. (Obama has done plenty of that, as well.) An old proverb says, Give a man a fish, feed him for a day; teach a man to fish, feed him for a lifetime. The social welfare approach favored by Obama involves giving that man fish every time he runs out; an insurmountable difficulty is the lack of an inexhaustible source. Ill take a job over a check any day. As much as I appreciate the help, President Obama, Id rather not need it. Ken K. Gourdin, Tooele, is a certified paralegal. 22 And of course, although I did not address this problem in the Op-Ed, there is the issue of my being deemed overqualified. Im in a damned-if-I-do, damned-if-I-dont position: if I do list my

law degree on my resume for a position which does not require it, hiring authorities will say Im overqualified and will throw out my application. (I wishand Ive even told people this in a couple of job interviews after it became apparent I wouldnt get the positionthat hiring authorities would let me decide whether Im overqualified.) Conversely, if I dont list my law degree on my resume for such a position, that leaves a several-year gap in my history (which will probably cause hiring authorities to pass me over anyway). Mr. President, as I said in the foregoing Op-Ed, I very much appreciate your desire to give me all of the governments fish you can. But, while I have been through no small degree of trauma both physical and psychologicalin my life, there is nothing as soul-deadening as being among the long-term un- and under-employed while sucking on the government teat with no prospects for change in that state of affairs in sight. As I also said in the foregoing Op-Ed, however, Id much rather be working (unlike many of Mr. Conns clients, apparently). Indeed, Im not sure which fact to be more upset about: the fact that so many people have gotten benefits to which they likely were not entitled, or the fact that I have few (if any) prospects for getting off of those benefits anytime soon, even though I am eligible for them.
END NOTES 1. Please dont get the wrong idea: I dont hate him the way I hate cauliflower, or annoying pop -up ads which derail my reason for visiting a particular Web site (particularly if I dont have the option of clicking somewhere to get rid of them), or (as an ardent Utah Jazz fan) the Los Angeles Lakers, or . . . sin. If Mr. Krugman and I were to avoid politics and economics as topics of discussion, we might even hit it off as dinner or drinking companions (although Id have ginger ale, thanks). While generally actively avoiding Krugman, I read other people even if I know its likely Ill disagree with them because they might surprise me: at the very least, theyll make me think. I find Krugman, on the other hand, overwhelmingly predictable, so the fact that I read his work on this occasion should tell you something. Paul Krugman (April 21, 2013), The Jobless Trap, The New York Times, accessed on line at http://www.nytimes.com/2013/04/22/opinion/krugman-the-jobless-trap.html?_r=0 on October 26, 2013. See Id. Ken K. Gourdin (January 5, 2013) No Matter How Many of His Detractors Were Convinced Otherwise, Governor Romney Sincerely Wanted to Help the Middle Class (Blog post) last accessed on line at the following address, http://greatgourdini.wordpress.com/2013/01/05/romney-wanted-to-help-the-middleclass/, on March 18, 2014. Rich Lowry (October 15, 2013), Profiting from the welfare state, Jewish World Review, accessed on line at http://www.jewishworldreview.com/1013/lowry101513.php3#.Umw1Jk3nYqQ on October 26, 2013. Damian Paletta (May 19, 2011) Disability Claim Judge Has Trouble Saying No, The Wall Street Journal, accessed on line at the following address on March 11, 2014: http://www.online.wsj.com/news/articles/SB10001424052748704681904576319163605918524. Committee Staff Report (Hearing held October 7, 2013) How Some Legal, Medical, and Judicial Professionals Abused Social Security Disability Programs for the Countrys Most Vulnerable: A Case Study of the Conn Law Firm, Washington, DC: Committee on Homela nd Security and Governmental Affairs, United States Senate, accessed on line at the Committees Web site at the following address on

2.

3. 4.

5.

6.

7.

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March 14, 2014: http://www.hsgac.senate.gov, copy also in possession of the author of this post as of that date; hereinafter, Committee Staff Report. 8. Paletta, Id. Parenthetically, I might add two observations to Judge Daugherty regarding this comment: (1) Perhaps if you had acted more as though it were your money, you would have made more responsible decisions and distributed the governments benefits (aka the taxpayers money) more wisely; and (2) You werent simply giving [it] awayor at least, you shouldnt have been. Id. Committee Staff Report at 11. Id. at 12. Id. at 18. Paletta, Id. Committee Staff Report at 108. Paletta, Id. Committee Staff Report at 16. See Id. at 17. Id. at 78. Id. at 35-36.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20.
21. 22.

See Id. at 55-56.

See Id. at 27-29, 32-33. Ken K. Gourdin (January 13, 2014), Ill take a job over a government check any day, but Obamas not helping, submitted to (but declined for publication by) The Tooele Transcript-Bulletin, copy in authors possession as of March 8, 2014.