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CONGRESS’ CONTINUED ASSAULT ON SOCIAL SECURITY DETERMINATIONS AND PROCESSES (2014)

By Scott B. Elkind, Esq.

CONGRESS’ CONTINUED ASSAULT ON SOCIAL SECURITY DETERMINATIONS AND PROCESSES (2014)

Several Congressional Subcommittee hearings were held recently which reveal the intent of certain members of Congress to limit disability payments to beneficiaries.

The House Oversight and Government Reform Committee chaired by Republican attacker, Darrel Issa (R-Ca) and featuring Social Security Disability antagonist, Tom Coburn (R-OK)(who believes his standard of a person being “truly disabled” should be utilized instead of the current 5-step sequential analysis disability determination in place at SSA), once again set their sights on Administrative Law Judges (ALJs) who they have higher disability claimant pay rates, termed “red-flag” allowances. The 1.3M allowances by these ALJs will result in an estimated $400B to be paid in lifetime benefit costs. To this end, they took issue with the Social Security Administration (SSA) for not evaluating the quality of the decisions issued by these suspect ALJs who, they agreed, carried heavy caseloads. Whereas, SSA has implemented increased ALJ oversight and enhanced data collection procedures. The purpose of the hearing is to cast blame for the impending insolvency of the Social Security Trust Fund in 2033 rather than take necessary steps to increase funding to prevent this occurrence.

True to form, Representatives Issa and Coburn wanted to inquire about several issues in their “blame game,” including the following questions:

  • What authority SSA has for firing ALJs (Difficult as the ALJs are unionized)
  • What authority ALJs have for reversing state agency decisions (state agency decisions are made nonexamining physicians who fill out form denials of benefits)
  • Is it appropriate for ALJs to issue on the record decisions (Absolutely, as this saves SSA time and money by not having to hold hearings when persons are disabled under the law)
  • Did SSA emphasize quantity over quality (This same Committee has taken SSA to task due to its large backlog of cases. This presents a no-win situation)
  • Should late evidence submitted be remanded back to state agencies (Why? Just only results in a longer delay for the claimant as the great majority of these cases are denied)

What is ridiculous about this approach is how these proceedings characterize benefit recipients. Persons receiving benefits average $1600.00 a month, hardly an amount for which a person can live on and certainly not live well.

At no time have Representatives Issa and Coburn addressed the other side of the coin: ALJs who hardly ever pay claims. This should be equally offensive yet is never mentioned by them. This reveals the real purpose of limiting claims payments by any means necessary to avoid the larger controversial budgetary issues at play.

All in all, Representatives Issa and Coburn wasted nearly six hours of hearing on a fishing expedition which was designed to deflect the blame for their and their brethren in Congress to address the underlying issue: The Social Security Trust Fund has become insolvent as a result of Congress’ borrowing from the fund and issuing Treasury Notes as collateral. If this borrowing had not taken place, then this crisis would never have occurred. But, as demonstrated time and again, any decisions concerning funding in the government are met with deadlock and no action. In the meantime, we can expect more “dog and pony shows” like this which do not serve the public’s interest in maintaining the solvency of the Social Security Trust Fund. This was no more than political posturing at its worst.

A recent Inspector General Report addressed the use of Continuing Disability Reviews (CDRs) for persons already awarded disability benefits in order to continue receiving their benefits. In a hundred cases studied, 80 produced new documentation justifying continued disability. Of the remaining 20 cases reversed, 18 had differing opinions between the treating physicians and state agency reviewers. The remaining 2 cases had “inaccurate” initial determinations and were reversed in short order with the claimant’s receiving their benefits. Of the remaining 18 questioned cases, there was no data on how many of these eventually resulted in payment or denial. Overall, this may not bode well for this program as few of the cases may be ultimately denied and the delay and inconvenience to claimants may not be worth making the effort. Hopefully, there will be a follow-up report after these claims are heard……..one to two years from now!!!!!!

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