When I posted my concern a few weeks ago that the new incarnation of the Administrative Conference of the United States
(ACUS) lacks members with Social Security experience, I received comments reminding me that Paul Verkuil, the Chairman of ACUS, has done a good deal of research on Social Security and that Jerry Mashaw, a public member of ACUS, wrote a book about Social Security. Actually, I was well aware of that. They are exactly why I have concerns about the lack of hands on Social Security experience at ACUS.
Let me start out with Professor Mashaw. He published a book
in 1983 that praised Social Security disability determination and particularly its quality assurance program at the initial and reconsideration levels. The book is the worst example of academese that I have ever had the misfortune to read. However, that is not the real problem with Mashaw's book. At about the same time as Mashaw's book was published, Social Security's quality assurance program was getting terrible reviews where it really mattered, the federal courts. They found that Social Security was using its secretive quality assurance program to deny claims based upon a policy of "non-acquiescence." "Non-acquiescence" meant that Social Security was refusing to abide by judicial interpretations of the Social Security Act. Social Security ignored what the courts said and plowed ahead with improper interpretations of the Social Security Act. The most visible of the non-acquiescence disputes concerned the standard for terminating disability benefits. Social Security's position was that it could force a claimant to prove over and over again that he or she was disabled. The courts held that once a claimant is approved for disability benefits that Social Security could only cut they off if they improved. Social Security ignored the courts and cut off benefits for hundreds of thousands of people based upon an illegal standard.
Social Security was also denying almost all disability claims based upon mental illness at the time based upon a bizarre interpretation that required anyone claiming disability based upon mental illness to prove that they met one of Social Security's listings. This was made especially difficult because the listings at that time were both harsh and antiquated. Social Security tried to keep this policy a secret even though it was used to deny hundreds of thousands of claims a year. Eventually, disability determination service physicians blew the whistle. The result was Mental Health Ass'n of Minnesota v. Schweiker
, 554 F.Supp. 157 (D. Minn. 1982), a devastating loss for Social Security. I think it would be fair to say that Social Security management was embarrassed, even humiliated, by the revelations in the Mental Health Association of Minnesota case. Social Security's actions that led to this debacle could never have happened without the quality assurance program that Mashaw lauded.
My opinion is that non-acquiescence and the Mental Health Association of Minnesota
case discredit Mashaw's book. In any case, Mashaw has, for the most part, stayed away from Social Security since then. At best, his Social Security experience was almost thirty years ago.
Professor Verkuil, for his part, has certainly written about Social Security over many years. Verkuil has consistently advocated for several changes at Social Security:
All of these ideas are, to put it kindly, rather musty.
There are good reasons why a Social Security court was never created. Social Security attorneys have strongly opposed it. Social Security has always worried that a court dedicated to Social Security might be even worse for them than the regular federal court system. Everyone has been concerned that it would be impossible to get adequate funding for a dedicated Social Security court. The experience at the Court of Veterans Appeals lends credence to everyone's concerns about about a dedicated Social Security court. It is not going to happen yet Verkuil keeps calling for it.
Government representation at Social Security hearings was tried many years ago. It got a good, full trial. I only heard the results of the government representation experiment second and third hand but I think I have a pretty good idea what the results were. It turned out that the fears of some that government representatives would be terrible for claimants turned out to be exaggerated. Social Security's unstated hope that many more claimants would be denied turned out to be wrong. The hopes of some that the process would yield demonstrably better results turned out to be wrong. Whether rightly or wrongly, the same people were being approved and denied. The government representation program turned out to be such a disappointment for Social Security that they never issued a public report on it. I have even heard that in recent years that Social Security has claimed that they cannot even find any report on the government rep experiment! (If you happen to have a copy of some report on the government rep resentation experiment in your personal archives, please send a copy to me. This ought to be preserved.) For good reason, the government representation program is not going to be revived yet Professor Verkuil keeps calling for it.
Professor Verkuil has long seemed obsessed with the idea that attorneys who represent claimants deliberately withhold medical evidence and submit it only on appeal in order to increase their attorney fees. In response to the concerns that he and others had, the Social Security Act was amended to say that a federal court could only consider new evidence if there was good cause why it had not been submitted earlier. The reaction of attorneys who represent claimants to this change was basically, "Who cares? We haven't been deliberately withholding evidence." This statutory change did not result in any significant change in the number of cases remanded by the federal courts. Social Security's regulations were also amended to make it essentially impossible to submit new evidence to the Appeals Council. The reaction of attorneys who represent claimants to this change was basically, "You're going a bit overboard here. There are a few cases where you should make exceptions but this really won't affect us since we haven't been deliberately withholding evidence." The result was the same. There was no significant reduction in the number of cases remanded. This was an imaginary problem.
Despite the fact that Verkuil's ideas have been adopted without any good effect, Verkuil seems obsessed with the idea that attorneys who represent claimants are evil people who distort the process. He keeps recommending that the record be closed in Social Security cases as early as possible and as utterly completely as imaginable. I think that if he had his way records would be closed before a claimant ever filed a claim! Verkuil seems incapable of understanding that disability claims are not static. Claimants get sicker. They get better. The develop new health problems. Old problems get new diagnoses. Claimants who seemed not to have been that sick are revealed in the fullness of time to have been just as sick as they said.
If Verkuil had practical experience with Social Security he might have an appreciation for why things proceed as they do with Social Security disability claims. In law schools, the facts are almost always given. Professors and students concern themselves with how the law should be applied to the stated facts. In the real world, regardless of the type of case, the facts are almost always in dispute. Social Security adds the additional dynamic that the facts keep changing. The real world cannot be changed to suit Professor Verkuil's tastes. Any effort to do so wiould create far more problems than it solves. The evolution of medical evidence in these cases is not something that can or should be eliminated from consideration. Trying to freeze these cases in time would be artificial and unjust. If anything, we should recognize that full consideration of changing medical evidence is one of the good things about Social Security disability determination.