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BREWING DISABILITY DETERMINATION REFORMS

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Congressional Interference

A letter dated 4/8/14 was sent to the Acting Commissioner of the Social Security Administration (SSA) by numerous members of Congress and signed by James Lankford, the Chairman for the Subcommittee on Energy Policy, Health Care and Entitlements along with Ranking Member, Jackie Speier. This letter expressed concern over the making of accurate disability determinations by SSA, given the fact that the average person will receive $300K in benefits over the course of their disabled period.

These members of Congress expressed their reservations about administrative law judges (ALJs) "rubber-stamping" individuals onto the disability programs over the course of the last decade. Concern was noted for ALJs who are responsible for an allowance rate of 85% or greater. Of the 1570 presiding ALJs, only 41 were identified for this activity. Whereas, ALJs allowing less than 20% of cases were not mentioned, thus demonstrating the actual agenda of these Representatives which is the future depletion of the SSDI trust fund within the next two years resulting in across-the-board cuts for all beneficiaries.

As part of the reforms referenced is the "gaming" of the system by some attorneys and other representative by "submitting biased and incomplete evidence." The "loopholes" for this activity would need to be closed in their opinion. This has resulted in newly promul These Representatives also urge continuing disability reviews (CDRs) every three years for claimants to verify their disabled status. SSA is currently behind on 1.6M cases for undertaking such reviews despite regulations that it do such reviews every three years for existing persons on claim. It is believed that for every $1 spent on reviews, $11 in savings will be recouped. This will only occur if the current medical improvement standard changed. The current standard is that a claimant's medical record must show "significant medical improvement" to terminate benefits. The authors of the letter do not believe this accounts for claims which were wrongly approved initially. This is a fallacy as medical improvement will still exist in the medical records despite wrongful granting of benefits and will result in termination just the same. Rather, the authors want approvals by "red-flagged" ALJs to be subjected to CDRs. This would include 930,000 claim approvals between the years 2005 - 12 and is part of SSA's proposed "risk-based" approach as a means of CDR prioritization.

These members of Congress have further taken it upon themselves of accusing SSA of not managing or disciplining the outlier ALJs accused of paying claims too frequently. No such charge is made concerning ALJs who pay infrequently. The letter authors have requested that the offending ALJs be put on administrative leave immediately while they are investigated. Of course, this would only result in a reduction of hearings being conducted while paying unionized ALJs for not working for well over a year during such a process and wasting tax dollars.

The most prejudicial proposal is modification of the "treating physician rule" whereby the treating physician opinion is given controlling weight as the provider has a longitudinal history of treatment with the claimant. Thereafter, there a long series of considerations, including opinions of other examining physicians, which the weight is lessened. Rather than having the ALJs undertake the correct analysis, the authors take the position that claimants will go "doctor shopping" to get more supportive opinions to manipulate the claims file. Again, this is speculative nonsense and occurs in a small minority of cases which can be easily identified. In addition, the authors want equal consideration of alternative practitioners such as nurse practitioners, physician assistants, and licensed clinical social works to be given equal consideration. In the past, these medical sources were considered useful, but are given lesser weight. This change can be done without undermining the entirety of the treating physician rule.

The authors also want the administrative record closed quickly. Currently, the administrative record remains open until a decision is issued. As many ALJs are overburdened with decisions to write, this can last for many months (and in many times, a year or more) during which additional evidence may be submitted for consideration. Again, the authors charge representative of "taking advantage of the system" by taking more time to gather evidence. What these authors fail to realize is that claimants often contact representative shortly before scheduled hearings. The ALJs will not allow continuances and the representatives then have to move quickly to obtain medical records which will be supplement following a hearing. The new proposal is to close the record five days before a hearing. This will only serve to prejudice disability claimants who will be unable to retain representation, dismiss their current cases, and then reapply for benefits, thus clogging the system even more.

Worse yet, the authors want to investigate the social media accounts of claimants to find "contradictory" evidence of their disability. As one person on disability in a fraud case in NY was found to be fishing and was made a national example, these authors go on to assume that this is true for many cases. Such is not the case. Similar "fishing expeditions" have been discouraged by SSA as the evidence found tends to be of little use. As stated, only 0.048% of cases result in a fraud accusation. Therefore, the effort to investigate the rest of the cases is an enormous waste of resources. Yet, not only do these authors want SSA to do this, but also cooperate with other authorities in investigating "questionable" claims. Of course, there is no mention of where the funding for such programs will be come.

The authors also wish to "modernize" the medical-vocational guidelines. It is inarguable that people are living longer and the age of disability presumptions may need to shift as they have not revised since 1978. The authors are misguided in their interpretation that the inability to speak English is a disability under this system. It is a consideration which places a person on the grid which is not, in itself, presumptive of disability. The authors clearly disregard the fact that older workers who do not speak English are at a considerable disadvantage when seeking employment.

The expansion of "own motion" review is recommended. "Own motion" review occurs randomly following approval of a disability claim as a means of quality control. No such review is conducted in denial of claims (This counsel posed this question to a SSA representative during a speech at a conference during her presentation to a large audience. Let's say that it did not go over well.) Again, every aspect of the "reforms" are against claimants and favor increasing the claim denial rate. Nothing is being done about the ALJs practitioners refer to as "denial machines" who refuse to pay cases (with as many denying cases 90% or more of the time).

There is a reason for laying off the oft-denying ALJs. SSA wants to increase video hearings which means remote judges can be brought in by video to do hearing across the country. This allows SSA to choose judges who deny more often to decrease claim approvals and stem the financial insolvency of SSA at the expense of many merit worthy claims and hurt many genuinely disabled persons.

SSA Response

The SSA through its representatives were made to respond the following day, 4/9/14, in their Statement of Record to the Subcommittee on Energy Policy, Health Care and Entitlements. The fact is that increased funding allows for more CDRs. As Congress has not fully funded SSA for this purpose, it cannot expect to expand a program without funding to staff the effort. As it stands, SSA has spent $3.4B undertaking CDRs from 1996 - 2002. If an additional $1.396B is provided, SSA can undertaken 888,000 CDRs in 2015 as compared to 429,000 completed in 2013. Of the 429,000 cases reviewed, 115,000 (27%) resulted in cessation of benefits. To eliminate the current, enormous CDR backlog in the next 10 years would cost $11.8B. In particular, child SSI payments which should not be paid, if targeted for review, would result in a $461M annual savings. Currently there are 22 investigative units which will be increased to 32 by the end of FY2015. Further, there is only a tiny fraction of ALJs who engage in misconduct. Disciplinary actions for these individuals costs can last years and cost over $1M, during which the ALJ will receive full compensation while on leave.

One ALJ testified that SSA routinely pressures its judges to keep high volume and speedy production which results in inadequate review of many disability decisions, resulting in hardship for many citizens. He referred to SSA's management style as a "factory-style production process." The ALJs personal performance is only judged by SSA on their production and fulfillment of goals without regard to the meaningful adjudication of claims. As many claims require adjudication of complex legal issues and extensive documentation, time pressures make the process even more difficult. ALJs who do not make projected goals are labeled "lazy," "uncaring," "or "not a team player." SSA maintains the position that making goal is mandatory, but it not a "quota." (?????!!!!). SSA tends to ignore the problems associated with "poverty clusters" in which medical care cannot be readily accessed or job training made available. In addition, "secondary gain" issues are not relevant as part of the adjudication process as the decisions are required to be centered about the medical and vocational aspects of the case.

Notable Hearing Remarks

Senator Tom Coburn made his customary remarks that many claimants are not "truly disabled," a term which does not exist in law and only his own personal vernacular. He went on to state how his "Committee" found that only 25% of cases in the 300 "randomly picked cases" were decided correctly. The qualifications of his "Committee" are unknown nor their process of making these determinations. He went on to state that there is a "tremendous amount of collusion between some ALJs and lawyers representing claimants." As there are a couple cases being prosecuted by the Justice Department, he would not speak further so as to indict all attorneys at the expense of only a very few "bad apples." Senator Coburn then testified that SSA had abandoned review for malingering. This practitioner possess a large compendium of medical journal articles which debunk the "malingering myth" which just does not exist. He based his opinions on a single incident of a tree cutter in his jurisdiction who requested payment in his mother's name so as to avoid reporting income so that the individual could stay on disability. It is unfortunate that Senator Coburn would not testify concerning the hundreds of thousands of needy and deserving recipients of SSD/SSI benefits in his jurisdiction. Hopefully, they won't vote for him when he runs for reelection.

Drew Swank testified based on his "personal research" during his six year tenure as an
ALJ working at SSA. During a great deal of that time, Judge Swank worked at the Richmond hearing office where this practitioner suffered his treatment. Judge Swank was well-known for his rough treatment of claimants and routinely went out of his way to deny cases. My nickname for him was the "Evil George Costanza" given his appearance and demeanor. I can't say any love was lost from him as well. Mr. Swank testified that the agency looks to pay cases so "they will just go away" and does not care whether "undesired benefits are granted."

Again, this is just another "show boat" event for Senator Coburn who has appeared on "60 Minutes" espousing the same unsupported rhetoric in his ongoing efforts to draw attention to himself rather than actually seeking out the truth and making sensible reforms to SSA.

 

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