Sep 13, 2012

Senator Coburn Finds The Gold Standard For Determining Disability

     I thought that Senator Coburn had Social Security's Office of Inspector General (OIG) make a study a Social Security Administrative Law Judge (ALJ) decisions on disability claims. How wrong I was! He had the subcommittee's Republican staff make the determination of whether the ALJ decisions were good or bad. I always wondered what the gold standard was in determining disability. Now, I know. It's untrained Congressional staffers but not just any Congressional staffers. Those staffers must be Republicans working for a Senator with a right wing agenda.
     Here's an example of the sort of thing that Coburn's staff found outrageous:
This 59 year-old claimant sustained a crush injury to his foot at work in January 2006, underwent a partial foot amputation, and received a prosthesis that should enable him to walk. The medical record documented that his wounds were healing well when the agency awarded benefits at the reconsideration level. By law, disability benefits may only be awarded to individuals with an impairment “which has lasted or can be expected to last for a continuous period of at least 12 months.” In this case, an award was made on October 26, 2006 – only ten months after the injury. Nothing in the record suggested that the claimant would suffer from permanent restrictions.
     At ten months out  from the date of a very severe injury one cannot possibly predict that a claimant will be disabled for a year or more? I got news for you, Senator Coburn. This one should have been approved almost immediately. It was a crush injury. Only part of the foot was amputated. Crush injuries heal very slowly. The claimant was 59. Healing happens even more slowly at age 59 than it does for someone in their 20s. The problem here is not that the claim was approved but that it took so long to approve it.
     Time and again, Coburn's staff is outraged that a claimant is approved when the medical evidence of disability is contradictory. There's usually contradictory evidence. The adjudicative process exists to weigh the evidence and resolve the contradictions. Coburn's staff appears to believe that any evidence that would justify a denial must be followed and any contradictory evidence must be ignored. Any other result is outrageous.
     Time and again, Coburn's staff is outraged that an ALJ approved a claim even though it had been denied at the initial and reconsideration levels. His staff appears to believe that ALJs should exist only to rubberstamp prior denials.
     The report talks of a "flood" or Social Security disability claims and increasing backlogs at Social Security but does not recommend additional funding for the agency, except for more funding for government representation at hearings. Here are the recommendations made (footnotes omitted):
  1. Require Government Representative at ALJ Hearings. To ensure key evidence and issues are properly presented, reduce instances in which SSA ALJs overlook evidence indicating a claimant is not disabled, and increase consistency and accountability in ALJ decision-making, a representative of the agency should participate in all ALJ disability hearings and decisions. Including a government representative at the ALJ Level has long been a recommendation of both the Association of Administrative Law Judges and the Social Security Advisory Board. Congress should specifically designate funds for such a program.
  2. Strengthen Quality Review Process. The new ALJ review process initiated by the Quality Division of the Office of Appellate Operations should be expanded and strengthened by conducting more reviews during the year and developing metrics to measure the quality of disability decisions. Such information should be made available to Congress.
  3. Close the Evidentiary Record. To eliminate the confusion, inefficiencies, and abuses associated with the current practice of allowing medical evidence to be submitted at any point in a disability case, the evidentiary record should close one week prior to an ALJ hearing, with exceptions allowed only for significant new evidence for which exclusion would be contrary to the public interest.
  4. Strengthen Use of Medical Listings. SAA should provide additional training to ALJs on the use of SSA Medical Listings, and direct ALJ decisions to identify how a claimant meets each required element of a listing, citing objective medical evidence and not just conclusory statements by an expert.
  5. Expedite Updated Job List. SSA should move more quickly to ensure the Occupational Information System can serve as a usable replacement for the Dictionary of Occupational Titles to identify jobs that claimants with limited disabilities can perform in the national economy.
  6. Focused Training for ALJs. The Office of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of determinations that involve both obesity and drug and alcohol abuse. This training should emphasize the proper way to analyze and address these issues as required by law, regulation and agency guidance.
  7. Strengthen Consultative Examinations. Because many disability claimants do not have sufficient funds to obtain detailed medical evidence of their conditions, SSA should determine, with input from ALJs, how to improve the usefulness of agency-funded Consultative Examinations (CEs), including by requiring an explanation of any significant disparity between the CE’s analysis and other evidence in the case file.
  8. Reform the Medical-Vocational Guidelines. The medical-vocational guidelines should be reviewed to determine if reforms are needed. Additional study should be conducted to evaluate whether the current guidelines utilize the proper factors and if they appropriately reflect a person’s ability to work.
     Coburn doesn't want to put a thumb on the scales of justice. He wants to stomp on them.


sammy davis said...

This report is troubling on several fronts. But, glaringly, SSA had no comment on the methodology used (see footnote 8). And not that they would, but that's real telling. And that's because the methodology is seriously flawed. Sample size too small,etc. Of the 300 "representative" favorable cases selected, the reports says that 22-26% were wrongly decided. Elephant in the room to Senator Coburn's staff: what about the wrongly decided denials. I know some congressman recommend readings by Ayan Rand to their staff, I'll recommend Thinking, Fast and Slow by Daniel Kahneman to this group. Sadly, portions of the media will run with this flawed report to bring faux rage to ALJs and their staff who are dealing with a record number of applications. Are there outlier ALJs (both ends of the spectrum), of course, everyone knows it, but the answer isn't leaking a flawed 100 + page report. Hasn't the republican appointed commissioner already told you gov't sponsored attorneys failed in the past and will again. So, we can sum up Coburn's plan for preserving SSA this way: Starve SSA for funds, unless its for CDRs and gov't attorneys. Yeah, that should preserve SSA. I predict that once the baby boomers hit retirement age and the economy gets better, and then low and behold the DI problem is fixed, Coburn, (if Romney wins) will take credit fixing the DI program. It's that type of flawed thinking we are dealing with here.

sammy davis said...

* correctly decided denials

Nancy Ortiz said...

Coburn is a doctor, I believe. So, naturally, he knows all about disabilities and all those people receiving DIB benes sure ain't disabled. He can tell just by looking at 'em. Yeah. Right. NancyO