Virginia Lawyers Weekly//May 14, 2012
Virginia Lawyers Weekly//May 14, 2012//
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