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Apr 23, 2012

A Lot Of People Don't Know What They're Talking About

     You can read comments on this board from those who want to remove discretion from disability determination, to require that decision-makers follow only the statutes and regulations so that disability decisions are accurate and predictable. Who could argue with that? 
     Me. I'll argue with it because it's nonsense. When you practice law for more than 35 years you acquire some wisdom. The wisdom sounds a lot like cynicism. Maybe it is cynicism but it's useful than naivete. So, here goes. The determination of disability includes the assessment of pain and mental illness among others things. Have you seen a machine at your doctor's office that measures the amount of pain you're suffering? Of course you haven't. I don't thing you ever will. Do you think that psychiatrists have some reliable test for determining the severity of depression or the frequency of hallucinations and delusions in schizophrenia? Of course not. Physicians assess these symptoms by talking with their patients. They make judgments based upon what they hear and whatever other evidence is available but their judgments are inevitably affected by their social and political views and, yes, their prejudices. It cannot be otherwise because physicians are human.
     Decision-makers at Social Security are also human and they're also assessing pain and mental illness and many other things that cannot be measured, such as fatigue. In situations where there is no clear-cut right or wrong answer they are subject to the same petty influences that affect the rest of us wretched mortals. There is nothing that Congress or Social Security can do to change this because we cannot make humankind different. The bottom line is that there is no gold standard for disability determination and there never will be. We have to accept this.
     You think that disability determination at the initial or reconsideration levels is 95% or more accurate as Social Security claims? Social Security's accuracy rates are ridiculous. They have no gold standard to compare these decisions to. You want proof? Let me show you re-recon, also known as "informal remands." In re-recon, Social Security takes disability claims that have just been denied at the reconsideration (or recon) level, where decisions are supposed to be at least 95% accurate, and sends them back through the same process but with different examiners. Wouldn't you expect this to be pointless? The result would have to be the same almost every time, right? Wrong. I haven't seen the numbers but a very significant percentage of claims that were 95% accurately denied before are 95% accurately allowed on the same evidence by another disability examiner. I know. The cases sent to re-recon are selected based upon some formula designed to find cases that are likely to be reversed -- basically cases of claimants 55 or older or cases involving mental illness -- but that changes nothing. If the determinations were anything like 95% accurate or even consistent, re-recon would be pointless. It isn't because the 95% numbers are ridiculous.
     I'm not sure this completely supports my point but one of the embarrassing problems that caused Social Security to ban claimants filing an appeal as well as a new claim after an Administrative Law Judge (ALJ) decision was that the new claims were frequently approved at the initial level, based upon the same evidence that had previously gotten the claimant denied at the initial and reconsideration levels as well as by an ALJ. In my office, it was happening almost 30% of the time.
     We cannot compare Administrative Law Judges individually or collectively to any particular standard and say that they are good or bad. The notion that disability determination can be completely consistent if decision-makers could be made to follow only the law and regulations is nothing more than naivete.
     I think we can try to reduce subjectivity and encourage consistency in disability determination by modest means but even those will be controversial. Anyone who thinks that there is some magic scheme that will make things dramatically better does not know what he or she is talking about.

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    Anonymous Anonymous said...

    It's just a matter of time before Count Rugen's (from The Princess Bride) definitive work on pain is due out. http://www.youtube.com/watch?v=BbgyppGqBgg

    Maybe then it can be standardized.

    9:11 AM, April 23, 2012  
    Anonymous Anonymous said...

    As usual, Charles, you've hit the nail on the head. The conservative right and their nutty Tea Partiers would have you believe that every claimant receiving SSD is personally stealing from their wallets and purses and that they're all shiftless layabouts who just don't want to work.
    The truth is, as you pointed out and all of us lawyers and reps know, the system is not that easy and is certainly unwieldy. But for the most part, it works. I read the medical records of my clients and I see the way that they get around in my office, in my parking, and at ODAR, and I know that they are not putting on a show and truly can't work. Sure, there are some who blur the line or cross it entirely, but I don't take those cases. Maybe those people hire someone else, or win on their own. I don't know. But they are the minority, the exception. The rule works, and as flawed as the SSD process is, it is generally not putting the fakers on the rolls because most ALJs, DDS examiners, lawyers and reps can spot the fakers.
    Now, do we need more CDRs? Probably. Are there lots of cases out there that probably shouldn't be paid anymore? Sure. But let's not open that particular can of worms just yet.

    9:25 AM, April 23, 2012  
    Anonymous Anonymous said...

    "Are there lots of cases out there that probably shouldn't be paid anymore? Sure. But let's not open that particular can of worms just yet."

    HAHA...way to undermine your own argument. Any system that is less than 100% needs reform. Will it be hard? Yes. But that doesn't mean it shouldn't happen.

    10:35 AM, April 23, 2012  
    Anonymous Anonymous said...

    Not bad, Chuck. Not bad.

    10:58 AM, April 23, 2012  
    Anonymous Anonymous said...

    Anon 10:35 - I think we can all agree that medical conditions can improve over time. Someone who was severely disabled 5 years ago might now, with medication and treatment, be able to try and return to work but will not have the motivation to give up guaranteed monthly benefits.
    THAT is what I meant by my statement, NOT that they shouldn't have been on the roll to begin with.

    11:05 AM, April 23, 2012  
    Anonymous Anonymous said...

    So, Charles, do you support eliminating the age-based presumptions (which should never have been implemented in the first place), as they take away the discretion of the decision-maker by mandating that anyone 50 or older limited to sedentary is disabled unless able to do PRW or has transferable skills to sedentary and that anyone 55 or older limited to light is disabled unless able to do PRW or has transferable skills, despite the fact that many of these "older" individuals are perfectly capable of working.

    12:29 PM, April 23, 2012  
    Anonymous Anonymous said...

    I like your website and read it every day. Very insightful. I think the main concern for some of us, anyway, is when the "objective" evidence meets the Rules, some ALJ's still will not pay the claim. I understand the discretionary "pain" thing, for example. It is the willful ignorance of objective evidence (and subsequent denial of the claim)that seems to be more common that is so concerning.

    2:30 PM, April 23, 2012  
    Anonymous Anonymous said...

    I agree with the spirit of 12:29 PM, April 23, 2012.

    Never understood that provision in the decision process.

    3:05 PM, April 23, 2012  
    Anonymous Anonymous said...

    The problem is the age based grid rules which are frankly outrageous. A 50 year old limited to sedentary work should NOT be disabled unilaterally.

    If I were an alj I'd do anything in my power to circumvent the grid rules if the medical evidence didn't support a finding that they were disabled

    5:55 PM, April 23, 2012  
    Anonymous Anonymous said...

    I agree that the disability determination process is an imperfect one. Especially in light of the fact that there are so many cases to process, it is no surprise that there are errors. After all, humans are imperfect. However, the numbers don't lie. A massively higher percentage of the population collects disability today than 20-30 years ago. Part of it is good, because it means some conditions are being recognized and people who need help are getting it. However, I see many young men and women that in my view can clearly work a job full time. Just because someone has some anxiety from a rough childhood or asthma, does not necessarily preclude them from work. But i see it all the time. I'm not a doctor and I don't claim to be an expert. But overall the process to become entitled needs to become tougher. At least that is the view of a claims rep on the front lines.

    8:57 PM, April 23, 2012  
    Anonymous Anonymous said...

    @anon 8:57 PM

    You may be right, but its only because more women entered the workplace in the last 20-30 years.

    And by the way, more women entered the workplace because cost of living increased+ wages stay stagnant+health care became more expensive+mortgages more expensive+higher college tuition+etc, etc. etc.

    10:53 PM, April 23, 2012  
    Anonymous Anonymous said...

    Anon 9:25 am, I only see the cases at the federal court level. In my region, I'd say about half of the cases are filed just for the EAJA fees and the attorney cannot (and do not) make a straight-faced argument that their clients are actually disabled. I applaud you for apparently not taking on these cases. But forgive me if I strongly disagree with your view that we should endorse the judgment of the claimant's attorney in determining disability.

    11:01 PM, April 23, 2012  
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