I know that this blog is read by Congressional staffers who have never been involved in disability determination work at all as well as by upper level Social Security employees who also lack that experience. It's easy when you don't have this experience to develop attitudes towards disability claimants that have far more to do with your general political and social views than with the reality of disability claims. I thought I would reproduce here a portion of one consultative examination (that is an exam purchased by Social Security) on one of my clients, after having been careful to remove anything that could identify the individual. It may give you a peek at what goes on in these cases.
This is a man who was 60 at the time of the exam. He has a high school education. He's done fairly heavy work.
You'll have to trust me that there's nothing in the rest of this man's file that detracts one bit from the information given in this excerpt. In fact, the rest of the medical records only make the case seem stronger.
You'll have to trust me that there's nothing in the rest of this man's file that detracts one bit from the information given in this excerpt. In fact, the rest of the medical records only make the case seem stronger.
This man's case is quite strong but not unusual. I've picked it mostly because it's not that difficult for a novice to appreciate.
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- "Glucometer 399". This means his blood sugar was quite high the day he was seen. He's a diabetic.
- "Degenerative changes greatest at the L4-5, L5-S1." He's got arthritis in is low back. That's actually fairly normal in a man of his age but it still hurts.
- "He does seem to have a bit of peripheral lateral deficit on the right eye." You expect vision problems in an older diabetic. It's part of the damage that diabetes does to the body. However, this deficit could have some other cause.
- "He has quite a bit of peripheral edema bilaterally very hard, woody type edema." Edema is swelling. Peripheral means it's in his lower legs. "Hard, woody type edema" sounds bad and is bad. It's a sign of poor blood circulation. This man's obesity is also contributing to the problem.
- "He has numbness to his fingertips, numbness to the plantar aspect of both feet and the dorsum of both feet and basically the entirety of both legs ..." Diabetics typically develop peripheral neuropathy, that is nerve damage in the lower legs and sometimes their hands. It's a serious matter. Diabetics can't feel their feet very well which can lead to poor balance. Our feet are supposed to be constantly feeling the ground beneath them. Take away that feedback and you're more likely to fall. You're also more likely to injure your feet without knowing it. Other medical records show that the numbness in this man's hands is mostly due to carpal tunnel syndrome.
- "Hypersensitivity and numbness to the lower legs." It's weird but with peripheral neuropathy, your legs can be exquisitely sensitive to touch yet numb at the same time. Just a light touch can be painful even though you can hardly feel it.
- "Tandem gait is definitely abnormal." Tandem gait is where a physician asks a patient to try to walk while placing one foot immediately in front of the other. This man's balance is poor so he has a hard time doing it.
- "A stent to his LAD years ago." LAD is the Left Anterior Descending coronary artery. Stents are great. They help keep a diseased artery open. In this case it was an important artery supplying blood to the heart itself. A stent has helped this man for many years but he's still got heart disease and it's almost certainly getting worse over time.
I guess my point here is to explain why Social Security Administrative Law Judges (ALJs) approve almost half the cases they hear. It's because the claimants whose cases they're hearing mostly have fairly serious health problems. Most aren't as serious as this man's but they're still serious.
If you have no real experience with these cases, you can say things like "There's something else he can do." However, when you actually have to face a 60+ year old man who's never done anything that didn't involve a lot of exertion that doesn't seem to make much sense, especially when the man doesn't have much education and his health is rapidly deteriorating.
What I'm saying here is that even if you're a Republican Congressional staffer and you're a true believer in personal responsibility and you just know that Social Security approves too many disability claims, if you were a Social Security ALJ you'd still probably approve 40% or more of the cases you heard because it wouldn't be theory anymore. It would be flesh and blood people and you'd have a solemn responsibility to fairly judge the cases.
18 comments:
Let me guess, DDS limited him to medium exertion.
Denied. Patient needs to lose 80 lbs. and his health will improve dramatically. Next?
Normal appellate courts in the "real world" reverse around 5-10% of trial court decisions. (That is not a scientific number, just my personal experience and estimate.) If we consider DDS as the trial court and the ALJ as the appellate court, it becomes obvious that DDS is denying far too many claims. If my analogy held true at SSA, ALJs would only pay 5-10% of their cases because DDS would have made the correct decision in the first place. Unfortunately, DDS has become just another roadblock for the legitimate claimant. Like private medical insurance companies, the trend at lower levels of the disability process seems to be to delay or deny claimants as long as possible. Want to reduce the backlog? Beef-up DDS with instructions to properly analyze and develop cases. That would make a big dent in the caseload being passed on to ALJs.
@1:30
Comparing an ALJ's review to an appellate court's review is well beyond apples and oranges. An appellate court has a closed record without the submission of new evidence over a finite period (unlike us, where there is never a closing of the record, even with the 5-day rule). The number of decisions made by ALJs, assuming we were stuck with the records DDS had at the time of their decision, would likely be relatively similar to the traditional courts' numbers. There would be no age changes, no worsening of conditions, no new evidence, etc. that we would consider, which is a large portion of why the ALJ reversal rate is so high.
Admittedly, a small portion of our reversals are in cases like the report in this current post or other technical errors, but by and large, DDS is seldom "way, way off" in their original evaluations given the limited amount of information provided to them by claimants and their providers. You can train and train DDS personnel as much as you'd like, but unless you can train them in telepathy, it's not going to help when a claimant doesn't provide detailed information when asked.
His glucose levels are really high and his heart would eliminate all but sedentary work. At age 60, the grids already say disabled, before you consider his hands and reach. If he was 47, the ALJ would probably rule he could do 3-4 jobs, based upon VE testimony. Realistically, with his hands and shoulders, he wouldn't be able to sustain SGA at any job. For those who say, "There must be SOMETHING he could do... " Just ask yourself, what job would YOU hire him to do at a SGA level while providing him any and all necessary accommodations? With YOUR money? How long would you be willing to pay him before he is able to produce at an SGA level? I know what I am talking about, because I have most of the same issues with a couple of others instead. My eye issues include the causing of frequent migraines. The ALJ claimed at 49.5 that there were 3 jobs I could do. As the British would say, "Not bloody likely."
“If we consider DDS as the trial court and the ALJ as the appellate court, it becomes obvious that DDS is denying far too many claims. If my analogy held true at SSA, ALJs would only pay 5-10% of their cases because DDS would have made the correct decision in the first place.”
Here’s the problem with your analogy: when appellate courts review trial court decisions, they’re reviewing the same record. When ALJs review cases, they’re working with a bigger body of evidence. It’s not simply a question of poor case development at the DDS level; it’s also a byproduct of the passage of time between the initial determination and the ALJ hearing. A lot can happen in the interim - more treatment, more opinions, an opportunity to testify, etc.
If you want DDS to make “the correct decision” (i.e., one that is properly rooted in the medical evidence), then you should be prepared to wait much, much longer for initial determinations.
CE reports vary state by state. Most CE reports are NOT this detailed or chatty. If you want to know why DDS denies so many cases, it's because their CE reports in many states are cursory (if not outright fictionalized).
If every CE put in the effort that is evident from the report shown above, a lot more legit cases could be paid earlier.
You can often reverse-engineer a claimant's age just from the DDS RFC. If DDS puts someone at medium work, it means they're 55 or greater, and win under the light-exertion Medical-Vocational Guidelines ("Grid" Rules).
Flag down on the play. I don't see cases like this. This guy is 30 years older than my average claimant. He has a work history. He has actual objective findings on examination, excluding Charles' lay/medical opinion that he is "almost certainly getting worse over time."
ALJ hearings are not "normal appellate courts." ALJs conduct de novo hearings designed to address the "real world" challenge of affording due process in a massive program. They've been that way since before the beginning of the disability program 60 years ago. DDS review does not even remotely resemble a trial court proceeding.
Appears to be going against medical advice in treating his conditions.
1:30 I think your analogy is flawed. In order to even bring a case to a trial court, there has to be some sort of evidence that a crime has been committed. But anyone can file a disability claim for whatever reason they want, regardless of the apparent severity or lack of severity. DDS still must go through the same process to gather evidence, evaluate it and make a decision. I also don't think there is a trend to delay claim decisions as long as possible. In actuality, the DDS employee wants the case off of their pending list and is motivated to make a quicker decision so they don't have to explain the delay to their supervisor who also wants a quick decision so their processing stats look better.
I do agree, however, that in the haste to clear a claim off of their pending list, a DDS analyst may be more prone to issue a denial for lack of evidence. But by the time the case gets to the ALJ, evidence has piled up so the ALJ can make a favorable decision that DDS was unable to do so.
Well said. It's kind of obvious but still well written.
I had a hearing with a man today who just blacks out without warning. The VE admitted he would be a liability in a work setting, but thought he could work if he wasn't off task more than 20% of the day. This is SSA outlook at work! Who wants an employee who just falls out anytime anywhere? I guess it would be okay if he could do it on a break or in the restroom.
This is anything but a typical case. It's sad it's been portrayed as such. Of course, assuming the rest of the medical record is like this or worse, as claimed. Note: claimed. Chuck is a rep, after all.
While not directly connected to this subject, the following video maintains that large segments of the non-disabled workforce can no longer find work. The reason is that less complex jobs (clerical, service, manual labor) are fewer and fewer, meaning significant numbers of people will be unable to be trained due to education/IQ issues to work in the new economy as jobs become more complex. And "it's the "low end of the white collar class that's coming up next" (around the 9:00-minute mark).
https://www.youtube.com/watch?v=pu__97bVyOc
Sometimes DDS is reasonable, sometimes close, and sometimes they are completely off base. We have to remember that DDS evaluates exertional ability based on medically determinable impairments not age. That does, of course, not explain claimants who I saw at hearing level who were clearly disabled and sometimes met a listing based on the evidence that DDS had.
Another thing to remember is that a relatively small percentage of people turned down by DDS even ask for a hearing, Those who ask for a hearing are the people with the best cases. It is not a surprise that 50 - 60 % of those folks win.
I appreciate this article. Mind-blowing denials are, well, mind-blowing and incredibly sad and frustrating. I'd only add, (due to the throwing in of politics near the end) as a non-D, non-R individual, that many a D-party ALJ and state level adjudicator has denied the very same fellow and I don't find the party affiliation to be particularly telling.
I do find the thought process of the posters above to be interesting and informative in terms of the various views on DDS, i.e. how they do get all cases without a minimal level of evidence required to make a claim and they must process those lacking in evidentiary merit the same as those with merit - ergo more denials.
I have seen nonsensical denials at DDS and with ALJs, (And AC), the decision-makers being apparently from all walks. There are definitely people on both sides of the political aisle that are prone to deny more than another. Some just wear a facade, that of a particular party-affiliation, that implies for some that make generalized stereotypes, otherwise, so they may slide under that radar. The counter theory, of course, if the R-party actors are responsible for denying meritorious claims, is that the D-party would likely be responsible for the granting of non-meritorious claims thereby stripping funds away from the meritorious... I don't really buy the premise that party-line is the critical component. I see bias against meritorious claims irrespective of that - perhaps it has more to do with caring about people vs not caring about people enough to do the legwork, and thus being willing to lazily drop the ball on a meritorious claim because "they can always appeal". People-liking has no political affiation. Then again, with ALJs, is an unspoken quota at play and come month end, quote must prevail? Not a claim, just a thought to consider.
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