Saturday, January 16, 2016

SSA Self Policing

“Letting a fox guard the henhouse” illustrates the foolishness of placing a person in charge of something when they have a conflict of interest. When you assign somebody a duty that places that person into a position where he can exploit the situation for his own benefit, then you are letting the proverbial fox guard the henhouse. That is the situation created by allowing the Social Security Administration (“SSA”) to decide the propriety of Freedom of Information Act (“FOIA”) requests. 

We represent a claimant for Social Security Disability ("SSD") benefits. Despite the fact we had submitted supporting evidence from his treating doctors, the SSA scheduled a Consultative Exam ("CE") for him. The client went to the CE, even though he was in a lot of pain, but when he arrived IMA said the CE doctor was out that day. No one from the SSA, State agency, or IMA ever tried to reach the claimant to tell him the CE doctor would not in that day. 

To prove that the DDS/IMA were committing fraud, we filed a FOIA request. Our request included: 1. The number of other patients the CE doctor was scheduled to see that same day, May 8, 2015, at the IMA offices in Hempstead, NY. 2. A copy of all the other patients' medical reports (with the names and Social Security numbers redacted) from May 8, 2015, who were examined by the same doctor that was scheduled to examine our client on that date. 3. The time records for all exams performed by the Hempstead IMA doctors on May 8, 2015. 

In response to our FOIA request, Mary Ann Zimmerman, Acting Privacy Officer, claimed that she did not have our client’s Social Security number, even though it was right at the top of the FOIA request. Yes, Zimmerman claimed that she could not see the Social Security number, which was the very subject of the FOIA request. Then, to make matters even worse, Zimmerman claimed that she did not have proof that we are the claimant's Appointed Representative, even though the SSA had already acknowledged receiving the proof. 

Zimmerman then claimed that she needed the written consent of the claimant whose records were requested. However, we never asked for any personally identifiable information. In fact, we specifically asked for "a copy of all the other patients' medical reports (with the names and Social Security numbers redacted) who were examined on May 8, 2015. In other words, Zimmerman’s response was nonsensical at best as there cannot be a need for the written consent of people when no personally identifiable information was requested. Since we explicitly stated that no personally identifiable information was requested, it is not possible for the FOIA request to constitute an invasion of anyone's personal privacy or violation of the Privacy Act. 

Not surprisingly, the SSA’s Glenn Sklar upheld the decision to deny the FOIA request by citing boilerplate language about the FOIA. Sklar’s only individualized claim was that releasing generic information about the number of exams and their duration performed by IMA doctors would somehow lead to the disclosure of personally identifiable information. Sklar knows that rationalization is a lie because it is impossible to identify a claimant who went for an IMA exam by providing the number of IMA exams and their duration. That is the type of opprobrious misconduct that occurs when you allow the SSA to police itself.

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