Even The Government Has Gotten Into The Game Of Blaming Workers

Social Security Employees Face $3.8 Million In Work-Related Fines

Everyone that has ever dealt with the arm of the Social Security Administration that deals with awarding disability status knows how screwed up the process really is and how difficult it is to work within the system. It is so difficult that some law firms have made a specific practice of working only on social security disability certification and "advocacy." Most of these law firms have a reputation of being exploitative among those that work with the poor and needy, most of whom need the most help without having to pay through the nose for legal advocacy. (The entire concept of the legal profession being caught in a cycle of exploitation is the subject for another series of posts.)

But this case is an absurd example of blaming workers for a dysfunction created by the system. According to the report, the employees--three of whom are lawyers hired by the government to protect the rights of individuals and assure that the system is not ripped off in the process-are being blamed for the dysfunction of the training and the improper orders of an administrative judge. In the course of training these lawyers, the SSA taught these lawyers that evidence presented in one case should be used in other cases. Then, the administrative judge involved in these cases ordered the lawyers to use this specific evidence in those cases heard before his/her proceedings.

Now, administrative law is a lot different than civil and criminal law. The set of procedures used in the process of hearing cases is significantly different, as is the set of rules governing evidence, testimony, documentation, etc. Even the evidentiary standard used to decide the case is distinctly different. In a criminal case the evidentiary standard is "guilty beyond a reasonable doubt." In a civil case the evidentiary standard is "a preponderance of evidence" in favor of one party or the other. Both civil and criminal cases include the right to a jury trial by constitutional decree. But an administrative law case uses an evidentiary standard of "adherence to procedure and the judgement of the hearing officer or judge." Except in juvenile proceedings in some states, judges in criminal and civil cases are present to rule on the legitimacy of evidence, the meaning of the law, the reliability and validity of procedure, and the impartiality of the process. In administrative proceedings, the judge (hearing officer) is the sole authority in all matters and, although there is an appeal process, the actual extent of an appeal is very limited.

Given all that, it is important to understand that a directive from an administrative judge carries the full weight of law and could result in contempt charges--with fines and incarceration attached--for not following that order or directive. For an employee of the SSA to refuce to follow a directive would result in contempt charges and quite possibly the loss of employment with the SSA, possibly the barring from future employment with the federal government, the possible loss of security clearances, and, in the case of attorneys, the possibility of being punished by the authorities that govern lawyer ethics and discipline. If you ask me, that is a hell of a lot of pressure to assure that procedure and directives are followed.

Now, I have known a significant number of attorneys in my adult life. Some have been terrific to work with in whatever endeavors I have needed legal advice. However, there have been a lot of "rotten apples" as well. I know an attorney that ended up serving a ten-year sentence for real estate fraud because while representing clients he used inside information to convince his own clients to sell him pieces of property for reduced prices and then sold it to the state for a huge profit for the purposes of a roadway improvement project. This particular lawyer made about fifteen other real estate deals in a similar manner. In my view, ten years wasn't enough... and this guy was a family friend.

There are also a lot of lawyers that are just too lazy to actually be in the business of representing clients. I have seen some real sloppy legal representation because lawyers failed to meet deadlines and/or pay attention to some of the details of procedure or process. Then, too, I have known lawyers that were too busy to take on any new clients and did so anyway, resulting in poor representation of almost all their clients because the case load is so large and cumbersome. In the case of the public defenders and legal aid lawyers, the case load is so huge and the pay is so lousy that it's a miracle that these lawyers do the job that they do on a daily basis.

But in this case, the lawyers appear to have been doing exactly what they were trained to do, exactly what they were ordered to do, and exactly what the government hired them to do. But the system works in such a ridiculous manner that the Inspector General has gone after the employees rather than the administrative judge, the training process and materials, or the dysfunction in the system. The injustice of this case is obvious to all but the bureaucrats and automotons working in the SSA's Inspector General's Office.

Four Social Security Administration employees have been informed of proposed fines of as much as $3.5 million for actions taken in the course of their duties reviewing disability claims, according to a grievance filed by a federal employee union.

Officials with the National Treasury Employees Union, which is representing three of the four employees in legal proceedings, said Thursday that the three attorneys and a supervisor have been told they face suggested penalties of $5,000 per violation for cases in which they allegedly used expert testimony improperly to help justify benefits decisions. The employees cited the testimony at the direction of an administrative law judge, union officials said.

This amounts to potential fines of between $100,000 and $215,000 each for the attorneys; the supervisor, who was involved with more than 700 cases, has been informed of a proposed fine of more than $3.5 million. SSA's inspector general office, which union officials said has been investigating the matter for more than four years, proposed the penalties.

According to NTEU President Colleen Kelley, the alleged "material misstatements" stem from the employees' repeated use of testimony by a single expert who answered a series of general questions in a single case to assist in determining benefits eligibility. Those statements were then applied to later cases at the judge's direction, Kelley said. That practice was taught in official training sessions and commonly used within the Office of Disability Adjudication and Review where the attorneys worked, she said.

Describing the fines as absurd, Kelley said the federal employees' actions should be legally protected in at least two ways: first, through the immunity that shields federal employees from personal liability for actions taken in the course of official duties; and second, through a quasi-judicial immunity that covers judges and those working with them. The immunity is designed to protect the independence of the judicial process.

"To challenge a judge's evidentiary technique has far-ranging ramifications for not only this agency but for other agencies where you have employees doing similar things," said Robert Shriver, NTEU's assistant counsel.

Kelley said the inspector general's office has reviewed the approximately 700 cases in question, and stressed that the disability determination was not found to have been improper in any of them.

Jonathan Lasher, a deputy chief counsel for the IG's office, said he could not confirm or deny the existence of any case against an individual because of Privacy Act restrictions. But he took issue with a statement by Kelley that SSA has never before used Section 1129 of the Social Security Act, which covers factual misstatements that affect benefits decisions, against agency employees. Lasher said employees have been fined before under that section, and emphasized that it applies to "wrongful acts."

"If we received information suggesting that a particular SSA policy or practice was inefficient, was unfair, wasted money, any number of things, that would generally be looked at by the [IG's] Office of Audit," he said. "Those generally would not include an allegation of wrongful or even criminal activity. [They would be] more in the program improvement realm."

The IG's Office of Inspection handled this case.

The IG has to date formally assessed a penalty of $215,000 against one attorney, who has retained private legal help but is also working with the union. In the other three cases, the employees have submitted financial statements to the IG office and are awaiting finalization of the penalties.

The employees will be able to request hearings before an administrative law judge, and either side can appeal that decision to a departmental appeals board, the Social Security Commissioner and ultimately the U.S. Court of Appeals, NTEU officials said.

The union has also written to SSA Commissioner Jo Anne Barnhart requesting that she throw out the penalties immediately.