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Proposed Changes to SSA Disability Determination: Fact vs. Fiction

By Scott B. Elkind, Esq.

I have been attending a recurring Roundtable Conference for the past three years which has concerned itself with operations at SSA. My participation has been as the ATLA representative in order that the voice of the private practitioner would be heard. Other organizations involve include SSA, DDS, SSAS, AARP, NOSSCR, AALJ, the federal judiciary, and others. The last meeting held on February 13, 2004 for the purpose of discussing the proposed changes to the SSA Disability Determination program being pushed by Commissioner JoAnne Barnhart.

Commissioner Barnhart’s proposals include an altered system of disability determination which includes several important aspects. Only a few of the proposals were discussed due to the pointed questioning by many meeting participants including myself.

First, all claims will be subject to the Accelerated Disability System (AeDIB). All claims will be electronically stored for transmission to the reviewing personnel to save time and expense. Such a step is commendable as it would result in a drastic saving in time, especially where lost files are concerned. Of course, the implementation of the technology will be extremely expensive given the size of the Administration including DDS offices. For this reason, this objective may fail for budgetary reasons alone. When asked how the proposal discussed would be funded, Assistant Commissioner Geary discussed the “waterfall effect” where funds would be made available along the process stages as needed. To this writer, this answer rang of the Reagan-era “Trickle Down Effect.” In addition, there remained claimant privacy and system security concerns. Further, my question concerning whether additional funds will be made available or legislation passed to compel providers to send medical records at an agreed cost. Otherwise, if the medical records remain difficult to acquire (as is the current state), all the proposals made are doomed to fail where fair treatment of the claimant is concerned.

The initial determination will be replaced by the “Quick Decision Step.” This step is being created to ensure that obviously disabled claimants will receive their benefits promptly. SSA will being making these decisions by a coding system yet to be determined. SSA has stated that it wished to change the current Listing of Impairments as presently written. It remains unknown if and how the Listings would be incorporated into the new coding system. SSA has set forth diagnoses such as end stage renal disease and ALS as possible conditions for quick decision. The problem with this is that most obvious disability cases do not make their applications at such an obvious state. There also remains the question of what is an acceptable medical source since many rural health plan participants are diagnosed by nurse practitioners whose medical opinion is not recognized under the current regulations. Further, the problem with acquiring consultations was discussed. SSA remains restricted to payment amounts which do not exceed that of Medicaid. As Assistant Commissioner Geary stated, “You get what you pay for.” He hoped that electronically transmitted files could be reviewed by specialist groups located throughout the country to add greater expertise.

Further, SSA envisions some sort of “vocational expertise,” but Assistant Commissioner Martin Geary would not state whether actual VE’s would be employed at this stage at all. He answered this question as he did many others, with” “The Commissioner envisions this, but has not gone into any detail at this point and has not discussed it with me.” As it was no use to question the veracity of this statement without alienating the SSA personnel, there was meat added to the bare bones proposals presented. Of course, the Commissioner was not in attendance.

As you should be aware, the reconsideration step will be eliminated. It will be replaced with a Reviewing Official (RO). It is not certain as of yet, but SSA believes that the RO position should be filled by attorneys. As Assistant Commissioner Geary stated, the position requires a “strong official in this role.” The RO will be responsible for reviewing the claims file to determined if all the necessary evidence has been gathered by DDS. Remand to DDS will be made if the file is not properly developed. If the file is sufficiently developed, the RO will undertake a review and make recommendations to the Administrative Law Judge. At this time, it is unknown where the RO will be situated, either at DDS, OHA, or at another facility. If the RO is at DDS or OHA, immediate questions of bias will be presented. Former Chief ALJ Charles Boyer stated that there can be no public confidence if an RO is next door to the ALJ. ALJ Christine P. Benagh of the Washington, DC OHA expressed her concern that this new step would be no different from the eliminated reconsideration step and would only deplete OHA of much needed resources.

Even more troubling is SSA’s refusal to specify its position as to any presumptive effect the RO recommendation will have (which has been the subject of an ABA letter previously submitted) or if it would be made available to claimant’s counsel at all. Rudy Patterson, Esq. of NOSSCR stated that if the report were not given to counsel in advance that there would be considerable due process concerns. My stated concern was that if the report were to be given any weight, that counsel should be able to make objections in advance similar to that of a report and recommendation made by a magistrate judge in the federal court system. (Needless to say, Rudy and I were not making friends with SSA this day)

There was a repetition of the concept of “feedback loops” whereby there would communication to and from the initial review and DDS, DDS and the RO, and the RO and ALJ in order to create “consistency” in decision making. Unfortunately, given the widely divergent opinion of ALJ’s alone, it remains unknown how such consistency could be created.

There was no time to discuss the proposed elimination of the Appeals Council with its replacement by a three judge panel similar to that utilized in Federal Bankruptcy Court Appeals. In addition, there was little or no discussion concerning any proposals to close the administrative record at some point during the disability determination process. Although the refusal of SSA to be more forthcoming concerning the proposed changes was disconcerting, any contact at all with its officials was appreciated. Rather than receiving changes from behind closed doors, it was better to express concerns in advance in hope that SSA has not already set its position in stone without any outside comments as has been its practice in the past.

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