Social Security Faring Poorly In Federal Court

     Lisa Rein at the Washington Post has written an article on how frequently Social Security loses when denied disability claimants appeal their cases to federal court. Here are a few snippets:

• In the last two fiscal years, federal judges considering appeals for denied benefits found fault with almost 6 in every 10 cases and sent them back to administrative law judges at Social Security for new hearings — the highest rate of rejections in years, agency statistics show. ... The scathing opinions have come from district and appellate court judges across the political spectrum, from conservatives appointed by President Ronald Reagan to liberal appointees of President Barack Obama.
• The high rate of rejections for cases handled by administrative law judges and the attorneys who write their decisions is driven by stringent monthly quotas set by Social Security officials and growing pressure to deny more cases, according to current and former officials, audits and attorneys who represent the disabled. The agency’s policies have been reshaped to give less deference to the expertise of doctors who, in some cases, have treated claimants for years, and its policies routinely depart from federal appellate court rulings. ... Social Security has stacked the cards against the approximately 2 million people each year who apply for help when they can no longer work.
• Social Security has also tilted the scales in recent years away from key medical evidence, critics say, in another sign of the shift toward granting fewer claims. While administrative law judges once based much of their decision on evidence from primary care doctors or psychiatrists who best understood their patients’ medical issues, that policy changed in 2017. Now judges are free to disregard the opinions of these treating physicians and rely heavily instead on contracted doctors who examine claimants for as little as 15 minute.
• Less weight is given to certain musculoskeletal conditions, for example. IQ tests that show mental impairments do not automatically grant benefits.

Social Security Records Get Prisoner Off Death Row

     From the Washington Times:

Bruce Webster has been on death row for 23 years. Last month he got a stunning reprieve.

A federal judge ruled that new evidence had come to light suggesting Webster has a mental disability, making him ineligible for execution. It’s the first time someone has been saved from the death penalty by a post-conviction diagnosis of mental infirmity from newly discovered evidence, his lawyers say. ...

At the original trial in 1996, Webster’s attorneys argued their client was mentally challenged, but the government had its own expert witnesses who claimed the defendant was faking his disabilities to escape liability. ...

His lawyers at the time had tried to find government records to back up their disability claim, but failed. More than a decade later, his appellate lawyers were able to get Social Security records showing Webster had applied for disability benefits a year before the murder, and had been deemed disabled because of a low IQ and psychological deficiencies. ...

fter looking back over Webster’s evaluations from the Social Security records, Judge Lawrence ruled executing him would run afoul of the Constitution under a 2002 ruling from the Supreme Court, which held the 8th Amendment’s prohibition on cruel and unusual punishment prevents putting persons with mental disabilities to death.

In that dispute, Atkins v. Virginia, the defendant had IQ scores around 59. Webster’s scores ranged from 48 to 77.

“The scores themselves were obtained over a period of 25 years and consistently demonstrate that Webster has an IQ that falls within the range of someone with intellectual deficits,” Judge Lawrence ruled. ...

"Five Keys To Evaluating Intellectual Disorder"

     You might find training materials used recently at the Office of Hearings Operations on "Five Keys to Evaluating Intellectual Disorder" interesting.

Intellectual Disability ALJ Training by charles4304 on Scribd

New Mental Impairment Listings Approved But Won't Be Published Until December

     The Office of Management and Budget (OMB) has finished reviewing Social Security's proposed amendments to the agency's Listings on mental illness and intellectual disability and has approved them. The Listings are a major part of Social Security's policies on evaluating mental illness in disability claims. 

     The process that produced this dates all the way back to 2003. This particular draft was first published in 2010. 

     This proposal has been extremely controversial. Normally, new regulations are published in the Federal Register within a week or two after OMB approval. They come into effect thereafter. However, Social Security recently told the National Organization of Social Security Claimants Representatives (NOSSCR) that it was not planning to publish the revisions to the mental impairment Listings until December. This strongly suggests to me that the agency knows the new mental impairment Listings will be controversial and wishes to put off releasing them until after the election. They want to dump them in the Federal Register during the holiday season with the transition to a new administration underway. 

     I've been representing Social Security disability claimants since 1979. Disability claimants suffering from mental illness are being treated the worst now that they're been treated since about 1983. Claimants with intellectual disability are being treated worse now than at any time in my career. I expect the new Listings will try to crystallize the current restrictive policies. What a legacy for Carolyn Colvin.

Look What Happened After The GOP Took Over The House

     There's been no formal change in Social Security's rules for determining disability due to intellectual disability or mental illness in decadess. However, look at what's happened in recent years to the number of people approved for disability benefits for these reasons:

Number Of Disability Insurance Benefits Claims Approved For Intellectual Disability

2010 -- 18,867

2011 -- 14,145

2012 -- 12,009

2013 -- 10,141

2014 -- 9,738

Number Of Disability Insurance Benefits Claims Approved For Mental Illness (Including Intellectual Disability)

2010 -- 218,862

2011 -- 191,898

2012 -- 172,995

2013 -- 145,997

2014 -- 123,676

     What happened in 2010 that started this change? Could it be the fact that Republicans took control of the House of Representatives? Is that the same as a change in the statutes or regulations? What do Republicans have against the intellectually disabled? What do they have against those suffering from mental illness? And the biggest question -- why should a change in the control of Congress affect how Social Security determines disability?

Should I Worry About My Clients Being Thrown Into This Briar Patch?

     The Clinical Neuropsychologist, a scientific journal, has published Official Position of the American Academy of Clinical Neuropsychology Social Security Administration Policy on Validity Testing: Guidance and Recommendations for Change. This is their summary of the paper:

The milestone publication by Slick, Sherman, and Iverson (1999) of criteria for determining malingered neurocognitive dysfunction led to extensive research on validity testing. Position statements by the National Academy of Neuropsychology and the American Academy of Clinical Neuropsychology (AACN) recommended routine validity testing in neuropsychological evaluations. Despite this widespread scientific and professional support, the Social Security Administration (SSA) continued to discourage validity testing, a stance that led to a congressional initiative for SSA to reevaluate their position. In response, SSA commissioned the Institute of Medicine (IOM) to evaluate the science concerning the validation of psychological testing. The IOM concluded that validity assessment was necessary in psychological and neuropsychological examinations (IOM, 2015 ). Objective : The AACN sought to provide independent expert guidance and recommendations concerning the use of validity testing in disability determinations. Method : A panel of contributors to the science of validity testing and its application to the disability process was charged with describing why the disability process for SSA needs improvement, and indicating the necessity for validity testing in disability exams. Results : This work showed how the determination of malingering is a probability proposition, described how different types of validity tests are appropriate, provided evidence concerning non-credible findings in children and low-functioning individuals, and discussed the appropriate evaluation of pain disorders typically seen outside of mental consultations. Conclusions : A scientific plan for validity assessment that additionally protects test security is needed in disability determinations and in research on classification accuracy of disability decision.

     I notice that this is the "Official Position" of the American Academy of Clinical Neuropsychology but it makes reference to the National Academy of Neuropsychology. In addition there are the American Board of Professional Psychology which certifies neuropsychologists, the American Board of Clinical Neuropsychology, the International Neuropsychological Society and the Society for Clinical Neuropsychology. There aren't that many neuropsychologists in the U.S. There may not be 50 in my state, North Carolina. Why do neuropsychologists have so many professional organizations? What is the standing of the American Academy of Clinical Neuropsychology? I don't know. I can say that one of the eight co-authors of this "Official Position" derives at least part of his income from one of the tests that the authors of this report recommend. That's revealed at the end of the report itself. I can also say that widespread use of validity testing by Social Security would create a lot of business for psychologists. It doesn't prove that what they're saying is wrong but it is best to keep in mind that the financial interest of some psychologists is at stake here.
     You might expect me to oppose validity testing but I'm not sure what to think. If anything, I suspect it might help claimants. As a practical matter, at the initial and reconsideration levels of review of Social Security disability claims, Social Security is applying a near conclusive presumption that claimants alleging disability due to pain, intellectual disability or mental illness are malingering. Those claims aren't being approved at those levels except in the most extreme cases. It's not quite like that when these cases get before Administrative Law Judges but there's still a significant bias against claimants who have these problems. I suspect that many claimants who complain of pain, intellectual disability or mental illness would test out as "valid" on the tests being recommended and would be approved more quickly.
     I'm old enough to have been around when the grid regulations were introduced. There was great fear then that those regulations would result in fewer disability claims being approved. What actually happened was that more disability claims were approved.
     Should I worry about my clients being thrown into this briar patch?

Intellectual Disability Diagnosis Standards Much Tougher In U.S. Than In Canada

     From The Star Phoenix of Saskatoon, Saskatchewan:

If you lived in Niagara Falls, Ont., and got benefits for an intellectual disability, then moved across the Canada-U.S. border to Niagara Falls, N.Y., you wouldn't get them.

Psychologists can use two different yardsticks to determine your IQ, which, in turn, determines whether you are considered to have a disability, which, in turn, determines whether you get a disability cheque in the mail every month.

One yardstick is Canadian, the other American. And research by Dr. Allyson Harrison, who heads the Regional Assessment and Resource Centre at Queen's University in Kingston, Ont., finds that five times more people are diagnosed with a disability when the Canadian yardstick, or standard, is used in tests than when the U.S. standard is used. ...

In a research study, Harrison administered the Wechsler Adult Intelligence Scale, Fourth Edition, (WAIS-IV) test to Ontario university students who had been referred to her by a doctor.

But because of how the test works - it's standardized, like SATs - their answers don't mean anything unless they are measured against a standard derived from test results of people in their own demographic as determined by gender, age and educational level. ...

Of Harrison's sample, 21.2 per cent qualify for disability cheques when they're scored using Canadian standards. Only 4.2 per cent qualify using the American standards. That number - 4.2 per cent - is what you'd expect in the population of college and university students she studied.