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Senator Coburn’s Final Gesture for SSA

Senator Coburn’s Final Gesture for SSA
By Scott B. Elkind, Esq.

Senator Tom Coburn (R-OK) is leaving his office. Before he left, he introduced Senate Bill 3003 as his final goodbye to “start a discussion” concerning how the Social Security Administration handles benefits. It is called the “Protecting Social Security Disability Act of 2014.” If it were to be accurately titled, it should be called the “Social Security Disability Prevention Act of 2014.”

Senator Coburn has made a variety of proposals, most of which are designed to dismantle the Social Security Disability process and make it unmanageable both for claimants and their counsel. The proposals and my remarks are set forth below:

Creating and mandating that each claimant be given a level of medical improvement criteria (Possible, Likely, Expected) with corresponding disability review periods

Currently, SSA is running behind on tens of thousands of disability reviews as it lacks the funds and personnel for this purpose. There would need to be billions of dollars allocated to this purpose before any savings would be realized a decade from now. This would only add to the crisis not assist in resolving it.

Beneficiaries will receive benefits for only a time limited period depending on their medical improvement rating and then will have to reapply for benefits without giving any credence for the prior disability finding.

The current backlog for making a decision in a case is nearly two years. This will increase the backlog by multiples. There is insufficient budget funds to address the current backlog let alone a scheme which will increase it up to ten-fold. In the meantime, persons who have been found disabled will be on the streets without funds by which to survive. A presumption of continuing disability standard should be required with a finding of nondisability only by substantial evidence.

Adjusting the disability age criteria upwards using Normal Retirement Age minus 12 years. Currently, disability may begin in the majority of cases at age 50. With this criteria, it would be raised to 53 years (65 – 12 = 53). When the disability age is raised to 67, then 55 will be the age category for disability retirement.

This “adjustment” would lead to tens of thousands of claimants to not qualify for disability benefits despite an inability to work. Again, turning people into the street is not a problem when you are leaving Congress and can let others deal with the problem.

Elimination of the Reconsideration level of Review

For the most part, this has been nothing more than a rubber stamp for denial and has been of little use and served to only increase wait times for benefits.

Deadlines and exclusion of medical evidence with closing the record five days before a hearing with no evidence allowed one year after an ALJ decision. A postponement must be requested 7 days in advance of the hearing date and for “good cause” only and cannot be for more than 30 days.

For an administration that is in no rush to have hearings, this type of pronouncement is nonsensical. Not all medical providers are efficient in returning requests for records and later submission of new medical evidence is common so as to demonstrate continuing disability. Delay in the hearing date only hurts the claimant. Therefore, limiting a continuance is only designed to be to forclose claimant’s from making their cases and increasing denial rates.

Evidence will not be considered unless a claimant or the representative certifies to the administrative law judge that all known relevant evidence has been submitted for consideration.

Claimants routinely cannot recall all of their treatment providers which requires representative to do “detective” work by reviewing medical documents and asking addition questions to clients to discover other providers. Therefore, any certification is not required. Also, SSA bears the responsibility for gathering medical evidence which, in almost cases, results in failure.

Creation of non-adversarial disability hearings to develop the record and represent the government in hearings

How can another attorney not representing the claimant and only representing the government (who has a vested interest in nonpayment of the claim) not be adversarial? This is laughable.

Publish procedural rules for hearings with fines or sanctions for failure to follow

This is obvious on the face as it is only designed to punish claimant representatives for protesting conduct of judges on the record whereas there is no similar fines or sanctions for the judges. Recommended application of the judicial code of conduct solely to ALJs is not sufficient in this regard.

Prohibition of disbarred attorneys from practicing before SSA

This would make sense only if non-attorneys were not completely prohibited from practice before SSA. Non-attorneys are not subject to licensure or ethical grievances.

Removing treating physician rule and requiring certifications of healthcare providers for form completions

The removal of the treating physician rule which grants controlling weight to the actual examining physician is to allow equal weight to be given to the state examiner opinion who only reviews some of the evidence and almost never finds disability. The assignment of penalties to treatment providers for failure to provide designated certifications is being proposed to as a means of deterrence from solicitation of other supportive medical opinions.

Reforming attorney and claimant representative fees to require accounting for work performed even where there is a valid contingency fee agreement along with review of licensing of highest earning representatives

This is nothing more than another onerous burden to be assigned to attorneys in order for SSA to then criticize when representatives are paid well on contingency cases while ignoring cases that drag on for years and little is earned in comparison. And, as always, SSA would like to find any way to eliminate representatives who are continuously successful against it so as to increase claim denial rates.

Enacting Work Incentive Benefit System

Creation of a back to work program which incentives benefits recipients to try to return to work while maintaining their benefits and gradually diminishing payments as they continue to work is laudable. Although, it remains to be seen whether SSA uses this program as an excuse for terminating benefits to persons who place themselves in the situation of making a back to work attempt.

Early intervention project to identify applicants who have not entered the program and are likely to be approved for disability benefits

This was attempted before and was a failure. SSA routinely demonstrates its reluctance to make ANY findings of disability let alone those which can be done in an expedited fashion.

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