Richmond ALJ hearing Social Security claims has one of the highest denial rates in the country
By Virginia Lawyers Weekly
Published: May 14, 2012
Tags:
Administrative Law Judges,
Disability Claim
As
an occupational therapist, Michelle Bomar worked with people suffering
from injuries or diseases. But in 1998, she said, she found herself in
as much distress as any patient: A slew of illnesses had started
attacking her immune system, causing intense pain and fatigue.
Bomar said she couldn’t work. So she quit her job as a therapist and
filed a claim for disability benefits with the Social Security
Administration.
Fourteen years later, she is still waiting for help and wallowing in
debt. Her disability benefits request has been denied several times.
That’s no surprise. Her case is before Administrative Law Judge Drew
A. Swank of Richmond, and he 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. For example, they say he refuses to let vocational experts
present evidence in support of requests for disability benefits.
“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.
Highest denial rate
Between October 2009 and March 2012, administrative law judges hired
by the Social Security Administration decided more than 1.5 million
disability cases, according to a computer analysis of the agency’s data.
The Social Security Administration has about 1,300 administrative law
judges at any one time.
Nationally, the judges denied 37 percent of the cases and made
rulings “fully favorable” to the claimants 58 percent of the time. The
remaining decisions were “partially favorable.”
Virginia judges denied 40 percent of the cases they considered and issued “fully favorable” rulings 53 percent of the time.
Swank, who has been an ALJ since 2006, had the highest denial rate in
Virginia and one of the highest in the country. He decided 1,136 cases
and rejected 79 percent. Swank made “fully favorable” decisions 6
percent of the time, by far the lowest in the country for judges who’ve
decided more than 1,000 cases.
In Virginia, 50 judges have handled Social Security Disability
Insurance claims since October 2009. Only one judge had a denial rate to
rival Swank’s: Mark O’Hara of Charlottesville rejected 77 percent of
the cases he heard.
Swank had the lowest rate of “fully favorable” rulings of any judge
in Virginia; the runner-up was O’Hara, who completely sided with
claimants 17 percent of the time.
At the other end of the spectrum, three Virginia judges made “fully
favorable” decisions almost 80 percent of the time: Robert Habermann of
Roanoke, and John McNamee-Alemany and John Murdock of Falls Church.
Many ALJs have handled only a handful of cases. Nationwide, there
were 856 judges who made at least 1,000 rulings since October 2009.
Among those judges, Swank had the third-highest denial rate. At the top
of the list were two Dallas judges: Walter Orr, who rejected 86 percent
of his cases, and Peri Collins of Dallas, who rejected 83 percent.
‘Unable to work’ but no benefits
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.
Bomar’s physician deemed her unable to work in a letter submitted as evidence at her disability hearing.
“Ms. Bomar has been physically unable to work on a full-time or
part-time basis and that inability has existed since well before
December 2003,” stated Dr. Rosalia M. Lomeo of Fredericksburg, Bomar’s
physician since 2002.
Lomeo said Bomar suffers from lupus, fibromyalgia, seronegative rheumatoid arthritis and chronic fatigue syndrome.
Swank denied Bomar’s request for disability benefits, saying Lomeo’s evaluation was not credible.
Bomar, who lives in the Ladysmith community in Caroline County,
questioned how Swank could have reached the conclusion that she was able
to work when her doctor had stated otherwise.
“He thinks he’s so righteous and omnipotent, that nobody could
possibly know more than he does,” Bomar said. “The man thinks he’s God.”
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.
Refusing testimony of experts
Other lawyers also have complained.
Lawyers say they are at a disadvantage before Swank because he
generally refuses to allow vocational experts to testify on behalf of
people who claim a disability.
Billman said most jurisdictions require the use of a vocational
expert if the claimant suffers from “non-exertional impairments,” such
as anxiety attacks or other mental disorders, hearing or speech
impairments, or a lack of fine muscle skills.
The Social Security Administration reported that vocational experts
were used in about 72 percent of hearings in 2008. According to Billman,
for hearings in which he appeared before Swank in 2008, the judge
allowed a vocational expert only 12 percent of the time – and in every
one of those cases, Swank was ordered to do so by his superiors.
Billman said he had 96 hearings before judges other than Swank, and they allowed the use of vocational experts 94 times.
Amy Vercillo, of the International Association of Rehabilitation
Providers, said it’s rare for administrative law judges to deny the use
of vocational experts.
“In ALJ training, they’re told that on adult disability hearings that
there should be a vocational expert,” said Vercillo, who chairs her
association’s Social Security vocational experts division.
Such experts can evaluate how claimants’ disabilities limit their
work capabilities. “The vocational expertise brings the expertise of
what jobs are in the market, what are the physical, educational, mental
requirements for those jobs,” Vercillo said.
She added that a small number of administrative law judges refuse to use vocational experts.
“There’s no requirement that there’s a vocational expert,” Vercillo
said. “The only time an ALJ is required to have a vocational expert is
on remand hearings, when they’re ordered to do so.”
Swank says he’s muzzled
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.
He stated that there’s a “much bigger story here than you might
realize.” But he said he could not elaborate because he doesn’t have
permission to be interviewed.
Swank, who graduated from the Marshall-Wythe School of Law at the
College of William and Mary, referred to an article that he had written
for the Spring 2011 issue of the Rutgers Journal of Law & Public
Policy. In that article, the judge pointed to people gaming the welfare
system.
Some work in what Swank called a “shadow economy,” failing to pay
taxes on earnings. Other people work fewer hours than they are capable
of, to ensure they don’t make too much money to qualify for government
benefits, the article said.
“The [Social Security] Administration has often placed a greater
priority on quickly processing and paying disability claims with
insufficient attention being given to verifying recipient reported
information and controlling program expenditures,” Swank wrote. He added
that abuse of the welfare system hurts taxpayers and those who
genuinely deserve help.
Payments under the Social Security Disability Insurance are based on a
complex formula and numerous factors, including a person’s projected
lifetime earnings before the disability. On average, disabled workers
receive $1,110 a month.
‘Free rein over people’s lives’
Susan Moreno believes she genuinely deserves help. She suffers from
fibromyalgia, chronic fatigue syndrome, arthritis, scoliosis and
degenerative disc disease. Moreno first went before Swank to seek
disability benefits in 2008.
At the hearing, Swank ordered Moreno to see two Social Security
Administration medical experts – a doctor and a psychologist. After
those examinations, he said, he would make his ruling.
In the meantime, Billman filed his complaint against Swank. According
to the Social Security Administration’s policy, judges are notified
when complaints are filed – and they’re told who has complained.
At the second hearing, Swank dismissed the 700-page findings of
Moreno’s treating physician as “unremarkable.” And he cast aside the
findings of the Social Security Administration’s own doctors, who
corroborated the judgment of Moreno’s physician.
Swank wouldn’t allow Billman to cross-examine either of the
administration’s doctors. “All it comes down to is, we’re feeling the
wrath of Drew Swank, plain and simple,” said Fred Moreno, Susan’s
husband.
Swank went on to deny Susan Moreno’s case, and she appealed.
The appeals hearing was held the following year, in September 2010, and the situation deteriorated.
“At the very first hearing, it was like ‘Well, it could go either
way,’ ” Susan Moreno said. “But at the appeal, he twisted everything to
make himself look good. He treated me like I was an idiot. He
consistently patronized me.”
She said Swank repeatedly used minute details to call her a
hypocrite. For example, she said she could sit for only a limited amount
of time, but Swank took this as exaggeration when she sat through the
appeals process.
“I’m sitting there in pain, trying to get through this and be strong
and be good for Bruce [Billman], but it just made things so much worse,”
Moreno said.
“You hear about stuff like this, but you just don’t
believe it.
Something is very wrong. They have free rein over people’s
lives. Your life is in this man’s hands.”
Three months later, Swank again denied Moreno’s claim.
Financial and legal uncertainties
Sitting inside a roadside Denny’s, Michelle Bomar finished up the last
of her pumpkin pancakes. She shifted uncomfortably on the pillow she
brought in with her. As she thought back over the past 13 years, she
conceded that she doesn’t know what comes next.
“I don’t know if I’ll have to move in with my husband’s parents or
not,” Bomar said. “Our house is falling apart, my husband is completely
overworked. Someone told me if it wasn’t for bad luck, I wouldn’t have
any at all.”
While she sees some light on the horizon, she doesn’t know if it’s
enough. Since her appeal was already remanded to Swank once, it cannot
go back to him if it is remanded a second time. But the appeals process
often takes two years or more.
Unable to work – and unable to collect Social Security disability
benefits – Bomar says her ordeal has been devastating to her family, and
especially to Christian, her 16-year-old son.
“Christian doesn’t remember all the things I used to do with him.
We’d go to the museum, the park, the movies. He was so young,” Bomar
said.
As for Billman, he said he doesn’t want to have Swank fired or his
life ruined. He just wants the judge to give Moreno, Bomar and his other
clients a fair shot at getting disability benefits from the Social
Security Administration.
- By Sean Collins-Smith and Brandon Shulleeta
Interesting article. Please contact us if you need legal advice.
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