 |
| Kafka |
Mark Betancourt has written a piece for Mother Jones magazine titled Inside The Kafkaesque Process For Determining Who Gets Federal Disability Benefits.
The use of the term “Kafkaesque” may be more apt that Mr. Betancourt realizes. Frans Kafka’s day job was in the related field of what would today be called workers compensation claims.
61 comments:
Excellent article. I think "fictitious framework" is an apt description of the process.
I was wondering from that article whether the claimant was getting worker's comp, and if not, why not?
Lots of DI claimants have impairments that wouldn't qualify for WC, but in the story featured in Mother Jones it seems pretty clear-cut that he would. And so while he was very likely done wrong by SSA through the years, it seems like the flaws in the WC system may have caused him even worse harm, either by denying him or by providing such insufficient benefits that he and his family still struggled.
There have been real declines in the benefit adequacy of WC programs over the past few decades, and SSDI is often expected to pick up the slack, which further strains it.
I had to do some homework to get a bit of an understanding of "Kafkaesque." Reading the article was a bit surreal...kind of "deja vu all over again!" Extreme helplessness, sense of injustice... from a process that has no basis in reality. That's how I would describe the process. The "hypothetical" process seems DESIGNED to dehumanize the claimant. Ultimately, it is an irrelevant question. The relevant question is CAN THE PERSON SITTING IN THE ROOM...can THAT person, perform one of those jobs... and sustain it...at a competitive level?
The answer given, by relying on a hypothetical, often has more basis in reality. Hypothetically, if you had a long enough lever and a fulcrum, one could lift the Earth. In reality...
Surveillance video monitor... the default 1970's answer. Is that code for "they can't really do anything in our century"? That's not even a thing anymore. Besides, that would require 100% attention, constants sitting (or sit/stand/sit/stand...) which is just not logical in this mans life, none of that is. This is wrong. "Cant' sit or stand? Can you kneel?? OH, YOU CAN to pick something up?" DENIED! You can kneel to "price mark", which really isn't a thing anymore either. This guys case was a disastrous malfunction of the SSA system. Surveillance video monitor... *eye roll*. - in other cases; Rheumatoid arthritis?!?! "There's typing jobs out there!" DENIED! See how stupid that is?
No basis in reality, not more. Probably typed mo and it changed to more.
Since we had tons of articles in various publications about high paying judges, I think it would be fair to start profiling sub 20% granters. There are far more of them than there ever were of David Daugherty et al.
No reasonable HR person would EVER conclude that this man was capable of doing any "job."
You have the burden to prove you're disabled so we are going to reject any proof you provide labeling it "inconsistent" or "unpersuasive" while finding our doctor's cursory, limited, and inconsistent opinions to be "consistent" and "persuasive." And, as long as we can make it appear that what we have done is supported by slightly more than a "mere scintilla" of evidence, there's not a damn thing you can do about it. We are the government. We make the rules. We only follow the rules when we want to but we require that you follow them all the time.
Oh dear, this was very surreal. The limitations sound similar to the cheat sheet we follow in Ohio. Never ladders, occasionally stairs, stooping, kneeling, crouching, and crawling. Unlimited balancing. Same thing for most cases. The others like manipulations, postural, communications are usually checked no limits. Otherwise, you have to take time to explain the limitations and there’s no time for that. We’re swamped with cases, so naturally, the faster to get cases out the better. That’s why you always do a mild PRTF; why set yourself up for more work and have to do an MRFC? Speed is king. We use the same set of sedentary and light RFC jobs over and over. Never mind the jobs haven’t been updated in decades. We cut and paste decision notices, symptom evaluations, whatever we can. The workload demands this process as we get new cases almost every day. The claimant in the story would have been expedited at age 41, as anyone else under 49. The turnover in our office is high and has been for awhile. Those that are out of probation just stick it out to collect time off and there haven’t been any recent attempts to change the workload.
Overworked and overwhelmed is an understatement!!!! I’m just trying to to do the best I can till I can retire. Hopefully under the “early out” if they offer it in 2025.
Disability amazes me. Truly.
A person with back pain, maybe a failed shoulder surgery and depression will fight like a demon to get a check from SSA, a paraplegic chair user will fight like hell to get a job. There is no consistency, because people are not consistent, day to day, week to week or even hour to hour. Its like defining love or life. But this program is built along rules. To get a check you have to play the game by the rules set. Not everyone with a chronic health condition should be on benefits.
But, 8:14, the "rules" result in arbitrary application and decisions. The "rules" don't really decide who gets benefits and who doesn't. These decisions are often based on the whims, biases, and prejudices of individual ALJs. The "rules" allow for that. And, what do the "rules" say about DDS doctors reviewing records? I think it was 1989 when the agency settled a case in Utah in which 2 DDS doctors testified they signed off on RFCs without reviewing records. That is still going on. What do the "rules" say about that? What good are "rules" when the agency is free to ignore them at will and there is no accountability. What good are "rules" when they are so inconsistently applied. What good are "rules" when they rely so heavy on ambiguous terms like "moderate," "marked," etc? One person's "moderate" may be another's "marked." Rules?
8:51 So what do you want? No rules? No evidence? Just state you are disabled, get a check, get Medicare and carry on?
No, we need a system that is fair and produces consistent decisions. Not only do we need that but the Constitution requires it. Due process and equal protection.
That system doesn’t exist for the very reasons stated above. Two people with and identical diagnosis can have vastly different abilities to work or sustain a job. How do you account for that intangible part. Someone with an incredible degree of pain tolerance may be able to do things someone with a low threshold for pain may not. So then we’re back to the previous comment regarding a statement without evidence. Should everyone with bi-polar disorder be approved for disability or just those that say it’s too severe to work? And how do we measure the severity objectively?
The article is well wriiten but it is one single case study from a system where 1200 ALJs schedule 500 hearings a year. One worst case scenario does not invalidate the whole system. The article even acknowledges that ALJs have the highest pay rate in the process. Focus on recon and DDS analysts and attend some CEs instead.
@ 8:14. Depression/anxiety and other mental conditions can sometimes be more disabling than being a paraplegic. A paraplegic with a sharp brain can do anything they want. They can be amazingly productive in society! Depression/bipolar/schizophrenic, even with a perfect body can be very very disabling.
What is fair? Fair to who? Does fair cover every single person, from which perspective do we decide fair?
Consistent? Interesting, somehow that implies that all the cases, all the conditions, all the possibilities are the same and equal. Which we know is not possible. So what you want is to take something infinitely variable and make it consistent. Perhaps you prefer an AI to just look for keywords and test results, quantifiable, it would be fair, because all the cases would be subject to the same scrutiny under the exact same AI. There would be no question of fairness then.
Guess what?
If you hand out free gold bricks there will be people that complain that they are too heavy.
10:24 - OK. So whaddya got?
The fact that some try to defend this system is truly frightening.
12:45,
Any attorney who has primarily practiced disability law for any length of time has many stories just like this. I've sat with many clients' next of kin/sub parties who died while their various appeals of unjust denials were pending. And for the record, I'm not some bleeding heart who thinks every person I've ever represented is disabled. If I were a judge, I'd probably be a 40-45% granter.
How about this. When someone applies for disability they come in and see a competent doctor, trained in disability evaluation who has thoroughly reviewed their medical records and sought any additional information from treating doctors as necessary. If they are claiming a physical disability, they undergo a functional capacity evaluation, probably done by a physical therapist. They are thoroughly examined by the doctor who makes a decision. Then they see a second doctor who has no idea what the first doctor's decision is and this doctor gives an independent opinion. If the two doctors agree, that is the decision. If they don't, the file is reviewed by a third doctor to decide. If they are claiming a psychological disability, the come in to see a competent psychologist trained in disability evaluation. They are given a full battery of psychological tests. The doctor reviews the test results, thoroughly reviews the records and contacts treating providers as necessary. This doctor makes a decision. Then they see a second psychologist who independently reviews the testing and records and is not aware of the first doctor's decision. The doctors can schedule follow up visits if necessary to get a full picture. Again, if the two agree, that it the decision. If not, it goes to a third for a decision. The claimant would still have the right to an appeal but the doctors would be available to testify. Having thoroughly reviewed the records and thoroughly examined the claimant, their decision should hold up to any scrutiny. This would result in way fewer appeals and we would need fewer ALJs, fewer decision writers, and fewer administrative folks, fewer staff at the AC and fewer attorneys to deal with court appeals.. The agency could probably do that with the same money they are spending now. They are paying a lot of doctors already at DDS and the money they save on ALJs could go to pay more doctors, physical therapists, and psychological examiners. There would be fewer appeals and people would know that the agency thoroughly evaluated their claims. For some reason, the agency seems to want to keep a murky, haphazard system in place and perpetuate it instead of improving it in any way. A GAO study done a few years ago using the agency's own data showed how inconsistent decisions are among ALJs. The numbers speak for themselves. The agency even admitted that different ALJs can look at similar cases and reach different decisions. This "luck of the draw" system is no where close to being constitutional.
OK 1:11 here is your chance. You have the floor. How do you make it "fair" how do you make it "consistent". You throw the stones, now throw down some answers.
Personally I think it should only be CAL and TERI. That would make it fair and consistent.
2:16 and anyone that has practiced disability law for any length of time also knows deep down that they have got benefits for people that were not disabled. You will ALL deny it. But you know it is true.
Okay 2:31 - see my comments at 2:27. I'll add, recognizing in the regulations things such as the fact that someone with a valid diagnosis of schizophrenia and has frequent hallucinations or delusions is not going to be able to work. We see these folks denied regularly and it is ridiculous. Also, start making ALJs apply the "rules" consistently. One approving 17 percent while another approves 60 percent is an undeniable sign that the "rules" are being applied inconsistently. Start making DDS doctors actually review the records. Stop ALJs from deferring to DDS consultants when there are solid opinions from multiple treating physicians (I know, all you bureaucrats think all these non-government doctors are lying but that is just your bureaucratic brainwashed thinking). Require DDS doctors and ALJs to seek clarification from treating doctors when needed. Make DDS doctors subject to cross-examination at the hearings. Start ordering real functional capacity evaluations instead of drive-by physicals from incompetent quacks who work cheap. Start ordering fully psych evals instead of mental status exams from incompetent quacks who work cheap. I could go on and on but have work to do.
One more, and this is big one - start requiring ALJs to apply the preponderance of the evidence standard. Many times it is obvious they are only applying the substantial evidence standard.
2:16, If that were true, wouldn't that be further evidence the system is broken?
And, provide more education to ALJs so that they are not elevating mental status exams above results of in depth psychometric testing. Also, educate them that MRI findings are really not as "objective" as they think and actually don't provide much "objective" information about a person's pain. Really, just educate ALJs more in general as they are basing a lot of decisions on their own interpretation of medical evidence which is often just wrong.
I’m not saying they aren’t. I suffer from bi-polar 1 and have a job. Am I disabled? Should I get benefits? Am I just lucky? What makes someone with my same condition disabled?
I’m not sure anyone is “defending” it. What we’re looking for is an alternative. A viable alternative. Not just a narrative that the current system is broken. I think we all know that.
Let me know when you get a budget and staffing to undertake that process and I’ll vote for it.
2:32 has the answer. Fair and equal to all.
Fixes? Start with the Preponderance of Evidence. I think that could help, but, I doubt courts would overturn more. Some circuits, yes...others, no. What I think might work better... Replace the VE with 3 HR people that are authorized to hire for multiple companies for positions that the ALJ predetermines are the likely best fits for the claimant. Have the ALJ layout what he thinks the restrictions/limitations should be, along with skills and education. Allow the Claimant/Representative to give their opnions...Then allow the HR people to ask questions. Give the HR people 2 weeks to find the appropriate job, if they think the can place them. If one or more HR decides to place them, then the person is to be employed on a trial basis. The employer will be required to give feedback... on claimant's ability to perform tasks, how well they can sustain them, absences and why, etc. The claimant would be subsidized during the trial work period. The employer, ultimately, decides to either hire or not. Only Full time jobs that pay at least 1.3 × SGA with Health Insurance can be considered. Depending on feedback, ALJ can order up to 3 trial work periods. After 3 failed attempts, the ALJ MUST award benefits, unless the employers can provide evidence (preponderance of evidence) that the claimant didn't make an honest attempt to perform their duties. The ALJ can, however, award benefits at any point before that.
@9:54. I had a similar idea. Instead of having the VEs provide bogus testimony, have them actually work with the claimants to find a job that they can perform and if they can't then they report that back. There are many, many, many ways the current system could be reformed, some of them without spending more than is already being spent. But, the agency seems to be intent on keeping this broken system in place. The agency itself is the biggest obstacle to improving the system. The agency does many things that are simply absurd. The continued use of the DOT is just one example. The elimination of the treating physician rule is another. Instead of improving the system, the agency seems to want to make it worse.
Allow me to give the Premise for my suggestion. First of all, X-rays and MRIs do not correlate that well with pain. Back spasms don't show up on them. You can have deformations that have no associated pain and pain that has no or little deformations. From my experience, doctors often don't truly comprehend/appreciate all the variability of symptoms and outcomes a given disorder can have. This is particularly true of those outside the 90th percentile of the "normal" range of a disorder. But, these are the ones who are much more likely to become disabled. In fairness to doctors and ALJs, many debilitating conditions can't be proved of severity either for or against. But, to require proof of something unprovable is not fair to the claimant. Kind of like proving a negative. Supposedly, the burden of proof switches to the government at step 5. But, the government accepts the assertions of a VE without any real evidence. I hear people claim the "client didn't prove their case," but. they then dismiss the idea that the government didn't prove someone can work! The myth that claimants "could work if they wanted to," or they are "exaggerating" their symptoms... or those that say, "There must be SOMETHING you could do..." I just ask, "Well, if you were in HR, what job would YOU hire me for?" Never gotten an answer to that one!
What's with those with the Cal and Teri?
One other thing just occurred to me. Many years ago, I don't remember the year, the agency had a commission look at how to evaluate pain in disability cases. The report contained some good suggestions the agency never implemented. One was that when pain is a significant issue in a case, the agency should seek an opinion from a pain specialist. I have never seen that done. Why not?
Because pain is subjective and the smiley face pain scale the doctors use isn’t sufficient evidence.
You all seem to be really focused on physical limitations. How do we objectively measure mental limitations?
So, 12:11, is an ALJ more qualified than a pain specialist to determine how a person's pain affects him/her? This is the absurd thinking that permeates the agency. It only makes sense to those immersed in the system.
I don’t think there is anyway to objectively measure someone’s pain or their individual ability to tolerate pain.
@2:38 - Then how does an ALJ find that a person's pain is not disabling. In spite of all the talk about "objective" medical evidence, there is really little of that in these cases. Most denials are based simply on the ALJ"s speculation about medical issues they are really not qualified to opine about. Perhaps consulting a doctor who specializes in treating people with chronic pain makes more sense than simply going with the speculation of a lawyer about it, don't ya think? And, that's not just my opinion. That was the recommendation of a commission established by the agency that included folks with very impressive credentials. I'm sure the opinion of those folks should carry a lot more weight than mine or yours. But, the agency simply ignored those recommendations. That is what the agency does - ignores anything that doesn't enable it to deny more claims. Think about it, we have lawyers with no medical training interpreting medical evidence and trying to decide how limiting these medical conditions are. I think consulting a few more doctors is not a bad idea. But, doing that might mean paying a few more claims so, we can't have that, can we?
2:38 illustrates a point. The agency chooses to ignore certain of its "rules" when it wants to. The regulations require consideration of a person's pain. Yet, 2:38 shows us that the agency really doesn't believe it can do that. So, it is typically ignored. This is similar to the regulation regarding evidence from friends and families. The regulations indicate that this is important evidence. Yet, I regularly see ALJs misapply the regulation that contains the language "neither inherently valuable nor persuasive" to this type of evidence. Everytime this is done, it proves that these ALJs do not know the regulations. Shouldn't a claimant at least be able to expect that the person deciding their case knows the regulations? Absurdity on to of absurdity.
How do you objectively evaluate a claimant’s statement of pain or limitations on r the statements of their friends or family? I would imagine those statements would be in favor of an approval 99.9% of the time, right? If not, then they need new friends and family.
So if you let it it up to the claimants, they will give nothing but evidence to support a finding of disabled…and that is expected.
So, does the government just accept all of that as fact and approve the claims? It’s stated on here over and over that most claimants are too sick to work and their claims are valid.
I have no doubt many are, but what percentage? I can tell you I have had so many people file for things like: a broken pinky toe, allergic to vegetables, pregnancy stooped them from dancing, broken penis, sprained wrist and the list goes on and on. Those types of claims bog down the system for those with true limiting conditions. Yet the ones with the frivolous claims continue to appeal and appeal and re-file time and time again.
It would help if we were allowed to weed out those types of claims to allow those in need to be served more expediently.
These "frivolous claims" you listed are "interesting." But, they seem to be anecdotal exceptions that you are suggesting as the norm. What percentage of claims are like this? One percent? How may of these make it to a hearing? With a representative?
Additionally, all the doctors in the world will never give you clear, objective evidence for or against claims of pain. Not until you invent the medical tricorder. Ultimately, they can give you an opinion. Same with a SSA doctor. You also have to consider the person's work history. Have they been trying to overcome their disability(ies)? The person in the article had a disabling event. For most, it is a progression. What you could overcome at 25, becomes increasingly difficult as other symptoms and severity increase. ALJs, apparently, too often dismiss and ignore often valiant efforts to overcome.
As for witness testimony of friends and family, instead of just dismissing it...call them in as a witness. It is given weight, according to the court's opnion, in other legal cases. Why is SSA different? You coul always call in other witnesses...
Thank you 6:57, you have just affirmed that the agency does not believe it has to follow its own regulations. Despite the importance the regulations place on certain evidence, the agency believes it can just ignore it. This type of bureaucratic arrogance is disturbing.
@6:57. Here is what I'd like to see. I'd like to see a fair evaluation of all the evidence. Far too often what we see is cherrypicking in search of substantial evidence to support a denial. For example, we frequently see results of mental status exams which aren't really that significant cited when symptoms such as hallucinations, delusions, panic attacks, difficulty interacting with people, etc are ignored. Often we are not seeing a fair weighing of all the evidence by the preponderance standard. Information that is largely insignificant is elevated while important symptoms and findings are ignored. What you often have in these cases are significant diagnoses which are consistent with significant symptoms but instead of analyzing the consistency of these and also considering that these are entirely consistent with statements from the claimant, friends and family, we see them labeled as inconsistent with the largely insignificant, cherry picked information. What we often see is consistency between the medical diagnoses, the relevant signs and symptoms, the statements of the claimants and the statements of friends and family. But, what we see in the decision is a handful of cherry picked irrelevant items cited, a rejection of the claimant's allegations, a rejection of third party statements as unreliable or rejected because they lack medical training, and a deferral to the limited, cursory, and unsupported opinions of DDS consultants. So, no one is asking that statements of anyone simply be accepted. But, many ALJs are blindly accepting the opinions of DDS consultants and rejecting everything else as inconsistent when, in reality every thing except the DDS consultant opinions is consistent. What we expect is that ALJs would actually analyze the evidence, not just throw out some phrase from another regulation like "inherently neither valuable nor consistent." If the statements of friends and family members are consistent with the claimant's allegations and with the medical evidence and all of this supports that the claimant is disabled, pay the damn claim. Don't require the decision writer to scour the record, cite a stream of irrelevant finding hoping it will rise to the level of substantial evidence and simply defer to the DDS consultants. ALJs get paid pretty well - doing their job and actually analyzing evidence is not too much to expect, is it? Yet, you seem to be saying that their lack of knowledge of the regulation and failure to apply the regulation is acceptable. That does seem to also be the agency's position. That is why so many don't trust the government. They make these rules and then simply ignore them when it suits them to do so.
CAL and TERI only. Fair to all, but you all dont like that, you say its too restrictive blah blah blah, but that is what the program should be used for if you want it to be fair and equal to all and take out the human errors. It cuts the rolls by millions and millions saves tons of money, gets rid of the backlog, all good things right.
Social Security Administration, Program Operations Manual System (POMS), DI 22510.011. Agency policy requires that a consultative exam be obtained from a pain specialist if the assessment of the existence and extent of any limitations due to pain is essential to make a determination and the necessary evidence is not otherwise available from medical sources of record, the claimant, and others. POMS DI 22510.011(C)(2)(b). Has anyone ever seen this policy followed?
Anecdotally, 1/3 of the claims I take appear to be baseless or just a shot in the dark, like playing the lottery. However, I am not a trained medical professional, so I take them to the best of my ability regardless of the alleged conditions.
On occasion you get the person who has maxed out their filings and you have to get the records purged for the new app. That’s always a good time.
They are much greater than 1 percent, these frivolous claims.
Many file because they were laid off so in addition to unemployment, they file for disability. I mentioned the requirements but never tried to discourage them from filing. 30+ years ago I had a frivolous appearing claim filed and the guy ended up being approved at the initial claim stage for AIDS. He didn't mention that on the 3368 so either didn't know when he filed or perhaps was embarrassed.
I'd guess about 15 to 20 percent of claims filed appeared to be denials for either lack of duration (pregnancy, broken arm, etc) or severity (twisted ankle yesterday). Remember a significant number of claims are filed online.
I thought you guys didn’t like the agency’s “consultative” doctors. Wouldn’t they just rubber stamp a denial determination?
11:52 AM. Are you talking mostly about initial claims? I could see that at that level. On the other hand, I can't see even one of "the mills" taking those types of cases to a hearing. I wouldn't necessarily call those "frivolous," they just don't know or understand the rules or the qualifications of the program. If a lawyer took those to a hearing, it would be "frivolous."
The Washington Post had several stories on people like this. Based upon what they wrote, you knew that what they claimed wasn't going to get them approved, especially those under 50. Most would likely be classified as light duty. They were often occasional drug users, people from rural areas with few jobs, etc. But, I think the intent of these articles was to paint the picture that these are typical of those denied. However, there are also plenty of people denied as 9:55 AM describes. Too many cases, which all seem like the claimant as at the mercy of the system... where the deciding factor isn't the medical records, the testimony, the disability, etc. It is who they draw as an ALJ, or Federal Judge.
When the agency gets consultative exams from specialist, they seem to be better. But, 2:18, the larger point is, why does the agency think it can just ignore its own regulations?
Not the original poster - Many do appeal them and do take them all the way to hearing. However, in my area, it seems most of those types of claims get represented by the big, nationwide disability organizations.
As a matter of fact, I just had one today the filed their Recon 08/11/22 and got denied 09/01/22!!! I’m sure I’ll get the hearing request ASAP as they were represented.
There are many deserving claimants but it’s amount of “frivolous” claims that skew the numbers and big down the system.
There has to be a better way. Congress just isn’t interested in doing anything with SSA.
Well, I would suppose that it’s because the agency has hired someone and put them in a position to be overwhelmed and fail. That seems to be the current trend.
If we’re talking why would a “seasoned” employee ignore the agencies regulations…that’s easy, there is no accountability or backlash from SSA.
I can’t speak for the DDS employees, I think they are treated fairly poorly from what I hear. But FO employees ignore rules and refs constantly because there no repercussions after you’re past your probationary period.
You can screw up cases left and right and all they do is give them to competent employees to try and fix. I know because I’m a “fixer” and let me tell you, it sucks!!!
Legislatively, it was a big mistake to include ALJ hearings in the SSA disability process. ALJs belong at other federal administrative agencies (DOL, EPA, FERC, FDA, DOJ, etc). They should not be deciding non-adversarial disability cases
@Tim Some that file online are already back to work by the time we can contact them for more information.
But you are right that many who appear to be quite disabled are denied.
That goes to the opposite point of the article though. ALJs have the highest allowance rate in the agency and are the only ones with decisional independence. What would you have in lieu of ALJs? More denials, fewer appeals?
Mark Twain said something like - it is by the grace of God that in this country we have these three unspeakably precious things: Freedom of speech, freedom of conscience, and the prudence never to practice either of them. Similarly, if ALJs have "decisional independence" why don't they exercise it and reject worthless evidence like the DOT crap?
There is an article on Kafkaesque process in SSA proceedings:
Dubin, Torquemada Meets Kafka, 97 Colum. L. Rev. 1289 (1997).
Post a Comment