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.