A television station in Kansas is running a piece on a young woman in Kansas diagnosed with lupus who is fighting the denial of her Social Security disability claim. Here's a little excerpt:
The backlog started snowballing about 10 years ago, around the time Jason Fitchner became acting deputy commissioner of the Social Security Administration.
He says that during the Great Recession, a lot of people who had disabilities applied but weren’t necessarily unable to work.
“But they’re on the margin,” Fitchner says. “They can work, but when the recession happens, those are the first people who tend to lose their jobs, and then they apply for disability insurance.” ...
This spring, the agency introduced changes to fight fraud and streamline the application process, including a new fraud-fighting measure that removes the special consideration given to a person’s long-time doctor. ...
[F]ormer administrator Fitchner, now a senior research fellow at George Mason University’s Mercatus Center, says the agency is obligated to weed out any fraud it can, including the admittedly rare cases of treating physicians tipping the scale in favor of their patients. ...Not surprisingly, Fitchner, who works for a right wing think tank, is pushing the narrative that those who apply for disability benefits aren't really disabled, just unable to find a job. Right. I've been laid off. Instead of looking for work, even though I'm healthy, I'll just apply for Social Security disability, put up with years of delay and probably never get on benefits. Even if I do get on benefits, they'll be far less than what I was earning when I worked. That makes sense. He's also pushing the narrative that refusing to consider the opinion of a claimant's treating physician has something to do with preventing fraud. That's nonsense. Social Security is just trying to bootstrap itself into a stronger position when it defends its decisions in federal court. Folks like Fitchner like to claim that fraud is rampant among Social Security disability claimants even though the agency's Office of Inspector General (OIG) can't seem to find more than a handful of cases each year. Of course, to Fitchner that would just be proof that OIG hasn't tried hard enough. The existence of widespread fraud is an idée fixe for people like Fitchner. They try to justify their belief regardless of the evidence.
By the way, the woman whose story is featured in the article has systemic lupus erythematosus (SLE) and now has esophageal problems. Fitchner wouldn't know it but that combination sounds a bit ominous.
26 comments:
Charles is exactly right that scrapping the treating physician rule has nothing to do with preventing fraud. The agency was getting it's butt handed to them in Federal Court, and the biggest reason for remand I saw was failure to either A) follow the treating physician rule or B) failure to properly explain the weight given to treating v. nontreating sources.
So SSA changed the rules to fit their desired outcome? Is that fair? Nevermind if it legal or not.
The idea that "treating physicians" are unbiased and can provide the best picture of an applicant's condition and capabilities is misguided. That is why other country's disability programs, most notably Great Britain's, try to minimize their role. "Disability" is not a platonic concept. It is an administrative decision. Treating physician's have many different ideas and prejudices. For example, some might think that anyone who is an alcoholic, regardless of their resulting health issues, should not be considered disabled. Other treating physicians might think otherwise. Perhaps a particular patient does not pay her/his bills timely and getting the person on SSI might be beneficial for the doctor. Perhaps a particular patient is a pain in the neck and is constantly asking about being put on disability, and the treating doctor would just as soon get this patient out of their hair. There are all sorts of reasons why different treating physicians have different mindsets about disability and may have multiple considerations regarding individual patients.
The treating physician rule arose in an era when such doctors were "Marcus Welby" types who knew their patients well. That is simply not the case today when family physicians work in groups, carry patient loads in the thousands and rely on PAs or NPs for first line patient care. The regulation on weight given to medical opinions has changed to reflect this modern reality.
When I had a conversation with my doctor about the agency's policy of affording greater weight to the treating physician then to an independent medical opinion, he remarked that it seems like it should be the other way around, for the same reasons given by 11:18, as well as the tendency to want to help their patient's gain insurance to pay for medical care.
The treating physician rule has never been a free pass for claimants. The file still needed records to support the opinion or the ALJ could easily explain the limited weight the opinion deserved. The problem for the agency was that it pushed through too many boilerplate decisions that inadequately addressed the issue, which did lead to many court reversals. It is unfortunate for claimants that the Agency changed the rule instead doing a better job of addressing this potentially valuable information. I miss the days of, "The right decision. As soon as possible."
@11:18
I'm not sure anyone has claimed that a treating physician could not hold a bias for their patient, however I would dispute they do by default. It would depend on the circumstances of the case, and if the physician in question expresses a bias one way or the other, that should be addressed in the weighing analysis.
@12:04
The treating physician rule arose in an era when the Administration was using non-examining doctors, or at best one-time examiners, and ignoring treating physicians who examined claimants multiple times. That still occurs, but it was intended to stem the tide of Court reversals. The Courts held a medical opinion based on an established treatment and examining relationship was inherently more accurate under well-established precedent in regard to the weighing of expert opinion evidence in civil proceedings. In regard to the change in regulations giving more weight to PAs and NPs' opinions to reflect the modern reality of medicine, that is half correct. PA and NP opinions can now be considered, but no weighing will be documented as (according to the Administration's notice of proposed rulemaking statements) the Administration believes this is why they keep getting reversed for immediate award of benefits as opposed to reversal for further proceedings. That reasoning ignores the fact that the Courts' precedent still stands, and under the Social Security Act itself they are to apply the same standards applied to other civil proceedings to Social Security proceedings. Who knows. Maybe this time the Administration will fight the precedent to the Supreme Court.
What is the alternative to the treating physician? Agency MC's who spend an hour perusing medical records on conditions about which they have no special knowledge (a local pedestrian does much of the MC work around here) and then cutting and pasting conclusions from one opinion to the next? Naturally this is the preferred option for those who want to defend the trust fund. It will not lead to outcomes that more closely reflect reality.
"Even if I do get on benefits, they'll be far less than what I was earning when I worked."
This is not true of everyone, especially when you consider the health insurance and state benefits that accompany a federal disability determination. The incentive for the homemaker or minimum wage earner to apply for disability benefits is quite strong. Yes, there's a long wait and uncertainty, but there's also very little to lose.
"Right. I've been laid off. Instead of looking for work, even though I'm healthy, I'll just apply for Social Security disability, put up with years of delay and probably never get on benefits. Even if I do get on benefits, they'll be far less than what I was earning when I worked. That makes sense."
I find some of your incredulity somewhat fascinating, along with your post the other day about having only once represented family members or seen family members apply. Perhaps you haven't seen this in you practice, but both of these things are commonplace in disability proceedings. Not to say that it makes up a vast majority of cases or even a significant percentage (indeed, probably fewer of these claims than SSI claims with no work history for a 40+yo individual), but people turn where they have to when they have to.
With regard to this post, the more common thing to see is I get laid off, I apply for unemployment and look for work, unemployment runs out, I file for DIB, I keep looking for work, and then I go to the hearing. If I get work between the application and the scheduled hearing, quick withdrawal of the request for hearing. If not, we'll see where it goes.
A similar type of occurrence is where there is a prior application from 6-8 years ago, an initial/recon denial without a hearing request, followed by the individual's highest earnings (or at least SGA earnings) immediately after their denial over the next 3-4 years before something else happens (injury, illness, worsening of conditions, laid off, etc.). Were they truly disabled 6-8 years ago but made a miraculous medical recovery when they were denied on their prior application?
I wouldn't go so far as to call this type of thing fraud as much as desperation, but it certainly exists.
1:33 is correct. Judges will dismiss a treating physician's opinion when there are no findings or test results to support it. And they don't give much weight to NP's and PA's.
Doctors around here are pretty conservative. I don't know of any who will help a person get on disability. You still need records that describe a disabling condition. Most of our claimants had enough difficulty getting to a doctor anyway. It frequently takes more than one visit to learn what is wrong. If the medical condition can be treated and alleviated, most claimants would rather work anyway.
"Fitchner says . . . The Agency is obligated to weed out any fraud it can . . ."
Why is this discussion always centered on the relatively small numbers of such cases and the amounts of money typically involved?
My chief concern is Administrative misuse of finances/taxpayers money. For example, even though it has been pointed out numerous times on this blog; the AALJ filed a Grievance over same; a TV station in a major city covered same, and a link to this posted on this blog; and the issue brought to the attention of the SSA OIG, and several members and committees of the US Congress, no mention has ever been made as to why an entire ODAR Hearings Office was gerrymandered to a terrible location for claimants and their attorneys solely to placate a former ROCALJ who was removed from said position for wrongdoing in the Regional Office in the same city? The relocation of the Hearings Office was to a wealthy suburb close to this former ROCALJ's home. Further, he was given his choice of offices in said building, even though he was promoted to higher levels of Management in Falls Church, VA, and continues to work from said Hearings Office no questions asked.
Relocating this entire Hearings Office cost millions of dollars in taxpayers money, not too mention the increased salary for higher Management positions given to someone removed from a Management position for known wrongdoing. I understand a larger Hearings Office had been deemed necessary for the northern Hearings Office in this city, but it is blatantly clear to everyone the relocation site close to this former ROCALJ's home in a wealthy suburb, was a very poor choice, and only selected to appease a Management official just removed for wrongdoing.
In terms of the cost of the Hearings Office location and increased salary, we're talking millions of dollars. Yet, not a word has been uttered about this Administrative fraud and misuse of taxpayers money. Many of us want to know why? Why is this former ROCALJ still working from this Hearings Office relocated near his home, and being paid an increased salary for promotions to higher levels of Management. What is the status of this horrific misuse of taxpayers money? What was the outcome of the AALJ Grievance? After all, we're talking about millions and millions of dollars here, which is clearly more than the often trivial amounts of money and costs involved pursuing small fraud cases which exist among a small number of SSA Disability claimants.
"I'll just apply for Social Security disability, put up with years of delay and probably never get on benefits. Even if I do get on benefits, they'll be far less than what I was earning when I worked."
NO. Disability benefits, in many cases, are equal to (or higher) than what people making minimum wage make. Take someone working 30 hours per week bagging groceries for $7.25/hour. That is pre-tax pay of $941. Once you take into account transportation and the fact that you ACTUALLY HAVE TO WORK, disability benefits of $1200 or so per month seem like a pretty nice alternative.
The chances of someone getting "$1200 or so" after a work history of minimum wage is zero.
@ 2:57 You are right to not call it fraud. Those who do lack a basic understanding of the systems involved, and the reality that many people face. The 5 step sequential disability analysis is complicated and few claimants understand it. Many claimants with mental impairments are likely incapable of understanding how it works. Punishing them with a fraud charge for not understanding something they do not or cannot understand is ridiculous and cruel.
Example: A person with medical impairments can't do their past work and they are unsure whether they can do other work. They try for several months to find a job they can do while collecting unemployment. They finally realize that their condition is too severe to maintain SGA. They file for disability. There is nothing fraudulent about that.
When my autoimmune disorder becomes disabling, I doubt I'll be living in a 3,000 square foot house with an updated kitchen and large granite island. At least the lady in the article has that going for her.
Is DDS/ALJ claiming you can do a job that you can't do fraud? After all, if a claimant is denied when they meet the legal definition, they are wrongfully denied the insurance that they have paid into. If a company did this, they could be sued for punitive damages. Does the occasional occurance of fraud give the government the authority to trample on the rights of others? In the Conn/Daugherty case, has there been ANY fraud from claimants? So, SSA is "punishing" claimants for the wrongdoing of a lawyer, an ALJ and doctor(s). Hardly seems fair to people life has been unfair to! As for the "worth" of such people and their "contributions to society," that sounds like it's from the Nazi playbook (other thread).
How they pay for their house (generally speaking) is irrelevant! Assuming she is legally disabled, she should get any SSDI that she qualifies for. Would you deny SS survivor's pay to a widow because you think she doesn't "need" it? If you want to do that, change the law!
THE SSA/Medicare is the fraud. Medicare maybe waking up with comp claims where the employer has lied and maybe the SSA will too since the employers lie on the money they claim to pay out but the SSA will pay more than any selfinsured employer ever will. That's been the plan since the 80's on disabled IW's and no help from the DOJ pr the FBI on the massive systemic fraud by selfinsured employers/SSA/Medicare because the SSA will PAY billions to the same nefarious ways of the lying ME's to deny any all benefits, just as comp does. deny, delay and die. Anything to keep from paying out what the workers had to pay by federal mandate FOR their future benefits.
3:29 - welcome back SA27. Wondered when you would bring Judge Garmon back up.
As to the backlog, until there is a waiting period for re-filing or a nominal fee charged to the serial filers who tell the doc they are "trying for my disability" there will always be a backlog and it will continue to grow.
Tim, how much money someone has is certainly relevant to Charles's argument that people have no reason to apply for disability benefits if they're capable of working. If this woman's husband earns enough money for them to live an upper middle class lifestyle without her working, then she has nothing to lose by applying for benefits while she stays home to put a few thousand more dollars in their pockets. The notion that people will always choose to work if they can power through it is highly questionable. People will choose to work if they have no other choice. But if they they can live more comfortably on disability benefits, or on a combination of disability benefits and a spouse's high income, then they'll choose disability.
Well stated 11:02, very real world. Expect backlash.
"The backlog started snowballing about 10 years ago . . .Near the time of the Great Recession . . ."
I disagree with this assertion. The backlog started snowballing to unprecedented levels a few years ago, starting in 2013, when TPTB became overly obsessed with QUALITY of decisions and decision writing instructions. Their obsession with QUALITY was prioritized to the point of ridiculousness. What's so disgusting is TPTB saw the backlog growing, but ignored it for a long time, even though many of us repeatedly told them their prioritization of QUALITY over everything else would cause the massive, unprecedented backlog we are still dealing with. What concerns me is the decision making, or lack thereof, among TPTB who clearly saw this coming. They turned a deaf ear when they still had time to stave it off. Now, they have swung the pendulum all the way to the opposite direction, i.e., all that matters is numbers, numbers, numbers and monthly quotas. What is needed is knowledgeable, experienced professionals who have the expertise to make the right judgment calls and decisions before a crisis develops. We do not currently have this.
@11:18
I was surprised that you cited Great Britain's disability system as a good example. Almost every article I have read on that system has criticized it for an awful record of denying claimants who legitimately could not work,
Read the ACUS papers SSA commissioned to be enlightened on why SSA changed the TP rule. The ACUS papers contained flaws that were pointed out to the agency but which it chose to overlook. Yes, it was a response to many agency losses in Federal Court. Instead of acknowledging that some ALJs were failing to correctly apply the regulations and articulate their analysis and then fix that problem, SSA took the low road. Change the rule without proper justification, to provide better cover in Federal Court for poorly articulated and analyzed decisions. If more interested in justice instead of expediency, the agency would have worked to identify the ALJs who were chronically generating remands on these issues, and then train and monitor them,
If we put as much emphasis on things like Wall Street fraud and abuse and enforcement of anti trust laws I would venture the return for the efforts would be ten fold over cracking done on the poor and disabled. SEC is at an all time level of toothlessness. Interesting isn't it? Just keep grinding the shit out of the bottom. Get a little more blood out of the widows and the orphans.
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