You Get What You Pay For

     Social Security has decided to post a Freedom of Information Act response they've given showing the rates at which the Alabama Disability Determination Section (DDS) paid for medical examinations and some other things they ordered. This is from 2020 so it's a bit out of date but take a look. I'm only posting the first page here. The whole thing which runs to 20 pages is linked above. The last page may surprise you a bit.

    Don't these rates seem a little low -- or maybe a lot low?

Click on image to view full size

Video CEs To Continue On Limited Basis

     Prior to the Covid pandemic, the Social Security Administration used video technology to perform consultative medical examinations (CEs) -- to help evaluate disability claims -- on a very limited basis. For understandable reasons, the agency has made much more extensive use of video technology for CEs during the pandemic but the pandemic is waning. The President has declared that the Public Health Emergency will end on May 11, 2023. Social Security has just issued an Emergency Message detailing how it will use video technology for CEs after May 11. They will use video technology only for psychiatric CEs, psychological CEs without standardized testing and speech and language CEs. The claimant must agree to the video CE.

DDS Refusing To Schedule CEs For ALJs -- How Widespread?

    I and others in North Carolina are seeing cases where Administrative Law Judges try to order consultative medical examinations (CEs) but the state Disability Determination Services (DDS, which handles CEs in addition to making determinations on disability claims at the initial and reconsideration levels), refuses to schedule the exams, saying they don't think them necessary. 

    Is this happening in other states? 

    I don't particularly like them but sometimes a CE is necessary and ALJs don't order many of them so this seems surprising.

    I don't think DDS should be second guessing ALJs on this, especially since it's often hard to understand why DDS schedules CEs themselves when they have jurisdiction over cases. It often seems to be a stalling device for disability examiners -- as in "I'm too busy to finish work on this case now so I'll delay by ordering a CE." I don't see ALJs doing that. Clean up your own house, DDS!

False Claims Lawsuit Over CEs

     From KSHB:

When additional medical evidence is needed to approve a disability benefits application with the Social Security Administration, the agency requires applicants to get a consultative exam with a doctor.

In the Kansas City region, Midwest CES is one of several contractors working with the government to provide the exams.

Shiron Norah visited one of Midwest CES’s locations in 2018 during her application process. The lifelong Kansas Citian says she can no longer work because of a series of ailments, including carpel tunnel in both wrists, hip surgery, pain in her neck and back, constant migraines and arthritis.    

Norah said the doctor at Midwest CES spent less than 10 minutes with her and did not ask her a single question. The doctor’s report cited Norah’s ability to “use her fingers and hands to button and unbutton a shirt,” but Norah says she was not wearing a shirt with buttons during her exam. ...

Kyle Sciolaro, an attorney at BurnettDriskill, says he’s found roughly 250 other people in Norah’s shoes. They visited Midwest CES for a consultative exam and subsequent reports had similar language about buttoning their clothing or turning doorknobs - even though the exam rooms at Midwest CES’ North Kansas City office doesn’t have doorknobs.

In a series of civil lawsuits against the Social Security Administration, Midwest CES and doctors conducting exams, Sciolaro and his team allege fraud. ...

A lawsuit under the False Claims Act allows BurnettDriskill to file a case on behalf of the United States and its taxpayers. It alleges the Midwest CES knowingly submitted false information for payment. ...

President of Midwest CES Jake Johnsen responded to the claims. He calls the exams his company completes “a critical service” that helps prevent fraud. Johnsen pointed out Midwest CES does not know which results will lead to approval or denial of a claim. The government pays contractors like Midwest CES the same whether an applicant qualifies for benefits or not. ...

Eliminating Barriers For Conducting Consultative Examinations?

     Social Security has asked the Office of Management and Budget to approve interim final regulations on "Eliminating Barriers for Conducting Consultative Examinations." I don't know what's in this package.

ALJ Ordered CEs?

      In North Carolina, where I practice, Disability Determination Services, has recently resumed in-person consultative examinations (CEs) yet I've been told by an Administrative Law Judge that they are still under orders not to order CEs. Is that accurate?

In-Person CEs Resuming In At Least One State

     I had posted yesterday that it was time for Social Security to either schedule in-person consultative medical examinations (CEs) or to make decisions without them -- that the agency couldn't just hold disability claims in suspense indefinitely. It turns out that I wasn't the only one thinking that. My office was told today that North Carolina Disability Determination Services (DDS) has resumed scheduling in-person CEs.

Reduction In April OHO Receipts Probably Linked To Covid-19

      This was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. Click on the image to view full size.

     At my firm the number of requests for hearing went back up to something like normal in May but I don't think that will last. Many, many cases are on hold at Disability Determination Services (DDS) now waiting for that date when consultative examinations (CEs) can be scheduled once again.

     By this point, I think it's time to fish or cut bait. Either try to schedule the CEs or make decisions without them. I don't think the CE situation will change fundamentally until there's a vaccine for Covid-19 and early next year is the soonest that blessed day might arrive. DDS can't keep holding onto these cases for such an indefinite period. We need to get past the mindset that Covid-19 will magically disappear in the next few weeks. Not gonna happen.

Video CEs

     Social Security has now issued new instructions to allow for video consultative examinations of disability claimants but only by psychiatrists and psychologists. 

     I'm not seeing any physical consultative examinations locally. Are any going on elsewhere? Is there a plan for this other than to hold cases indefinitely?

No CEs For Now; Claimants Must Wait For Decisions

     I had posted to a news report from Buffalo about Social Security requiring disability claimants to attend consultative medical examinations during the Covid-19 epidemic. There is a new report out of Buffalo quoting an agency spokesperson saying that “We are not requiring applicants to appear in-person for consultative examinations during the national COVID 19 pandemic.” He went on to say that “We have instructed the DDSs [Disability Determination Services] to hold any case where the consultative exam, necessary for a disability decision, is canceled and to reschedule it once the COVID 19 pandemic subsides.”
     Social Security really ought to put out a national press release on this.

Claimants Objecting To Health Risk Of CEs

     From the Buffalo News:

While safety concerns over the Covid-19 pandemic have closed government offices across the United States, the Social Security Administration is putting people in danger by directing them to a small Buffalo clinic for medical evaluations, five Buffalo-area attorneys said Friday. 

The Social Security Administration has continued to require applicants for disability benefits to be evaluated by doctors at the 699 Hertel Ave. clinic run by Industrial Medicine Associates, also known as IMA, the attorneys said. 

“I’ve had clients who have been told to go to this clinic and told that if they didn’t go, their applications for benefits could be negatively impacted,” said Richard G. Abbott, a Kenmore attorney who represents applicants for Social Security disability insurance. “Our president, our governor and county executive are telling people with underlying health issues to stay home. Social Security tells them to go to a place where they may be exposed to people who are sick. It’s outrageous.”

Some Things I'm Hearing About SSA And Covid-19

     Here are some things I'm hearing about Social Security's response to Covid-19, as well as some things I'm wondering about:

• It will be possible for Administrative Law Judges (ALJ) to do hearings from their homes. Everyone will have to be connected through the hearing office, however. This requires someone to be at the hearing office to initiate and end the recording process.
• ALJ hearings will only be conducted between 8:30 and 2:00. I guess they want to cut down on the amount of time someone has to spend at the hearing office initiating recordings?
• Snail mail and faxes may be a problem at field offices. The field offices do not have e-fax capacity. The plan is for someone, probably a management person, to go to each field office each day to handle the snail mail and faxes.
• I haven't heard what will be done about snail mail and faxes at the hearings offices but expect the same problem there. For that matter, I expect the same problem at the payment centers but on a much larger scale.
• A White House memorandum says that "It is recommended that agencies identify any impediments to using digital signatures, and remove those impediments, consistent with applicable law." Does this mean that attorneys can now submit appointment of representative and fee agreement forms that have been signed electronically?
• Disability Determination Services (DDS), being state agencies, have differing setups as far as allowing employees to work from home. My state, North Carolina, has no capacity for employees to work from home. Other states have full capacity. North Carolina DDS has tried to solve this problem by switching to two shifts in order to allow more distance between employees at their cubicle farm. Of course, this won't work if we get a stay at home order.
• There are already some physicians who have been doing consultative examinations for DDS who don't want to continue doing them due to Covid-19. This may become a serious impediment.
• I have heard nothing about Social Security's centralized printing operation. Keeping that going has to be a priority but can they?

Did They Get Their Money's Worth?

     I don't think I've seen this before. Social Security has posted the amount it spent on consultative medical examinations of disability claimants in Fiscal Year 2018: $353,390,976.61.

Social Security Disability And The Homeless Population

     From Investigating Inequities In Accessing Social Security Disability Insurance And Supplemental Security Income For Adults Experiencing Homelessness, an M.S. thesis presented by Anna Booras at Boston University:

... The primary objective of this research study was to investigate applicant and application characteristics associated with disability outcomes among patients at the Boston Health Care for the Homeless Program (BHCHP) Barbara McInnis House (BMH) Medical Respite Unit and to explore the effect of advocacy in increasing access to benefits for those who qualify. ... 

It was shown that advocacy and assistance with the application process for SSI and SSDI produced an allowance rate for people experiencing or at risk of homelessness considered in this study that was almost twice the allowance rate for the homeless population in the state of Massachusetts and was significantly higher than the state general population. Despite the increase in allowance rate, the application determination times were significantly longer for the population of interest in this study as compared to the general population. ... Medical advocacy letters were found to aid in access to benefits for those with mental health primary diagnoses. ... 

In general, consultative examinations were associated with extremely lower odds of approval with only a 16.67% allowance rate overall. ...

     Programs such as Ms. Booras was investigating are great but there's not enough of them to make a dent nationally in the disabled homeless population. Private representation is critical for this population. For a long time, I've been telling colleagues who practice Social Security law that homeless clients may present some challenges but that you can win their cases and make money by helping them. This study is proof of what I have seen in my practice. My name and telephone number gets passed around at the South Wilmington Street Homeless Shelter in Raleigh, the biggest one locally. I'm happy to have the business. If you practice Social Security law, don't shy away from homeless clients.

72,100 Hours?

     From The Tennessean:

The Social Security Administration is best known for running the nation's largest retirement program. But it's also responsible for deciding whether millions of Americans qualify for disability benefits.

If you want to understand how those decisions are made, it's going to cost you: $2.3 million.

That was the administration's response to a USA TODAY NETWORK request for public information. Reporters are trying to scrutinize the performance of doctors hired in each state to review federal disability applications, including their workload and how fast they reviewed application files.

The agency's extraordinary price tag indicates that Social Security has no central database, but rather allows each state to manage doctors differently — a policy that, in at least one state, led to an unusually high denial rate and hefty doctor paychecks.  ...

In October, the USA TODAY NETWORK submitted a Freedom of Information Act request seeking doctor performance data for each state. 

The agency responded in April, indicating they would need 72,100 hours to get such information. That’s the equivalent of nearly 60 employees working full-time on the request for a full year – without taking vacation or holidays off. ...

Settlement Concerning One Consultative Physician

     Social Security has settled a class action lawsuit concerning the agency's usage of Dr. Frank Chen to do consultative medical examinations in disability claims. Chen was alleged to have supplied Social Security with "grossly deficient reports [that] were based on cursory examinations (often lasting ten minutes or less), referenced tests that were never performed, and were inconsistent with plaintiffs’ medical records." The agency kept using Chen despite knowing of problems with his examinations and twice warning him. Many of those who were denied disability benefits after being examined by Dr. Chen will now get redeterminations.

The Goat Rodeo Continues For Eric Conn's Former Clients

     I've learned a few things about Social Security's re-adjudication of the disability claims of Eric Conn's former clients. Let me share some of what I've heard:

• In at least one case, Social Security's file contains reports from Drs. Huffnagel and Adkins, two of Eric Conn’s pet physicians. The report from Dr. Huffnagel has been excluded from consideration but the report from Dr. Adkins is supposed to be considered. Even though he also did work for Conn, Adkins was also working for Social Security. The agency wants the report that Adkins did for them considered. However, any reports that Adkins did at the behest of Eric Conn are excluded from consideration. He was an upstanding physician when he did work for Social Security but he was a crook when he did work for Eric Conn.
• The claimants who had medical exams at the behest of Eric Conn universally describe the exams as reasonably thorough. The claimants say the exams took about twenty minutes. The write-ups of the exams seem professional. There may be problems with forms completed by these physicians but there's no sign of problems with the exams or the exam reports themselves. For example, there seems to be no reason to disbelieve a report by one of these physicians that he detected crepitation in a claimant's knee. Nevertheless, everything from these physicians has been excluded – unless SSA ordered the exam.
• None of the claimants involved reports having been contacted by Social Security's Office of Inspector General (OIG) or the FBI.
• I had thought that Social Security must have given Administrative Law Judges (ALJs) more instructions for these cases than what is contained in the agency's HALLEX manual. It looks like I was both right and wrong. I was right in believing that they should have been given more instructions but wrong in believing that they must have given additional instruction. It appears that they didn't. The result is confusion. At least one ALJ has refused to admit any evidence dated after the prior ALJ decision. Other ALJs are pondering whether they should admit into evidence the reports from Conn’s pet physicians. Nobody has any idea what the process is for asking permission to consider developments in the claimant’s health condition after the date of the prior ALJ decision. It’s not clear that there is a procedure or that any such procedure would be consistent with the agency's regulations, ALJ independence and the prohibition on ex parte contacts.
• There are signs suggesting that no one at Social Security's St. Louis National Hearing Center, which is hearing the vast majority of these cases, has much enthusiasm for the task they’ve been given.
• So far, it looks like well over half of the claimants involved have not sought legal help. There is reason for concern that these claimants are so intimidated by the criminal investigation that they are too scared to do anything even though none of them has done anything remotely criminal.
• We’re still waiting on action from the District Court on the lawsuit aimed at stopping these hearings. The delay doesn’t seem like a good sign for these claimants since the Court knows that the hearings have begun. I’m pretty sure that there are those at Social Security who decided not to worry too much about what the agency was doing in these cases since they figured that the courts would intervene to stop this mess. I thought so too but it looks like we may have been wrong. The Court may dismiss the case on narrow technical grounds. That won't prevent these claimants from eventually getting relief. It just delays it until after these cases grind through the administrative process for a year or two.

Class Action On Consultative Examinations In Bay Area

     From a press release:

A class action lawsuit was filed today in federal district court in San Francisco against the Social Security Administration (SSA) by three plaintiffs who were deprived of disability benefits because of SSA’s continued reliance on medical reports from a doctor who has been disqualified. The grossly deficient reports were based on cursory examinations (often lasting ten minutes or less), referenced tests that were never performed, and were inconsistent with plaintiffs’ medical records. On the basis of these faulty reports, plaintiffs who were no longer able to work were denied Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) benefits, essential to their well-being....

 Kevin Hart is a San Mateo County resident who was sent to Dr. Frank Chen for a medical exam to determine if he was still disabled and thus still eligible for his SSI and SSDI benefits. Dr. Chen, didn’t review Hart’s medical records, didn’t ask him about his condition, repeatedly interrupted Hart when he attempted to explain his diagnosis, and only spent approximately 10 minutes on a perfunctory examination. Dr. Chen’s report referenced tests he didn’t perform and failed to mention Mr. Hart’s primary disability, a leg and foot injury he sustained after being hit by a car— even though Hart needed a cane to stand during his exam. After Dr. Chen’s evaluation, Hart was notified that his benefits were being terminated because he was no longer disabled. He was never notified that Dr. Chen had been disqualified, even though Dr. Chen’s report was an important reason for the decision in his case. ...

The lawsuit seeks to require the SSA to reopen all prior determinations that terminated or denied SSI and/or SSDI benefits and that relied on a consultative examination report from Dr. Chen, and offer Plaintiffs an opportunity for a new exam from a qualified medical professional. ...

Plaintiffs are represented by Morrison & Foerster LLP, the National Senior Citizens Law Center and the Legal Aid Society of San Mateo County.

Consultative Examinations Still Suck

A very small diabetic foot ulcer.  Not my client's foot.

 

    Social Security recently sent one of my clients for a consultative medical examination. She's a diabetic. At the time of the examination she has an ulcer on one of her feet. The consultative doctor records this fact that she told him about the ulcer. The claimant was and is complaining more than anything else about her feet, not just the ulcer but other quite significant foot problems as well. There's no mention in the report of an examination of the feet. The client confirms that she was never asked to remove her shoes and socks.

     There's a message tacked to the wall in the examining rooms at my physician's office telling diabetics to remove their shoes and socks since the physician will examine their feet. Probably, there's a similar message in the examining room where you're seen. That's standard medical practice. I'm a lawyer but I know very well that failing to examine the feet of a diabetic is bad medical practice even when the patient is not complaining of an ulcer on her foot. When a diabetic patient is complaining about her feet and specifically mentions a foot ulcer, failing to examine the feet is enough to make one's jaw drop in any situation other than a Social Security consultative examination. It's sort of what you expect in a Social Security consultative examination, though.

Video CEs Now Authorized

     The Social Security Administration has recently posted instructions in its manual on ordering video consultative examinations (CEs). CEs are ordered by the Social Security Administration to use in determining disability. The instructions indicate this is only for psychiatric and some psychological examinations. This is supposed to be for rural areas and for areas where it's hard for the agency to get CEs done. The claimant is supposed to be able to object to a video CE but what will be done then? Just deny the claim for lack of evidence? Social Security will limit this to psychiatrists and psychologist licensed in the state where the claimant is located but adds that this limitation is only "at this time."