GAO Report Critical Of Social Security's Treatment Of Disability Claims Complicated By Substance Abuse

     From a recent report by the Government Accountability Office (GAO):

... This report examines (1) what is known about the relationship between trends in prescription opioids and DI claims, and (2) how SSA [Social Security Administratino] considers potential prescription opioid misuse in its DI [Disability Insurance] eligibility decisions. GAO analyzed county-level data on opioid prescriptions and DI claims from 2006 through 2017; interviewed program staff involved in DI eligibility decisions in Alabama, Kentucky, and West Virginia, selected because of their high rates of opioid prescriptions and percentage of the adult population on DI; and reviewed case files for DI beneficiaries identified by the Centers for Medicare & Medicaid Services as being at risk for prescription opioid misuse or abuse. ... 

The numbers of opioid prescriptions and claims for the Social Security Administration’s (SSA) Disability Insurance (DI) program have each declined nationally in recent years, but rates vary widely across the country. National trends show both peaking between 2010 and 2014 and then declining. GAO’s analysis shows counties with the highest rates of both were concentrated in the Southeast (see figure). After accounting for economic, demographic, and other factors, GAO found that counties with higher rates of opioid prescriptions tended to have higher rates of DI claims from 2010 through 2017. These rates were also correlated with other factors. For example, counties with higher rates of each tended to have higher poverty rates. However, GAO was unable to determine whether there is a causal relationship between rates of opioid prescriptions and DI claims or other factors, given readily available data.

Program staff are required to evaluate and document substance use disorders (including opioids not taken as prescribed) when making certain DI eligibility decisions. Specifically, staff are required to evaluate potential substance use disorders for certain DI claims and deny benefits, for example, if the claimant would not be considered disabled if they stopped using drugs or alcohol. In addition, staff are generally required to document the rationale for their decision so that another reviewer can understand how they made the decision. However,staff in five of the six offices GAO visited in three states were confused about when to evaluate substance use disorders, and nine of 15 case files that GAO reviewed in which an evaluation was conducted did not have a documented rationale. SSA officials acknowledged the need to clarify policies on when to evaluate substance use disorders, and that a poorly documented rationale could lead to reversals or remands of decisions. Without ensuring that SSA’s policies are understood and that staff document their rationale, the agency may expend resources re-working cases and, in turn, delay benefits to individuals eligible for assistance.  ...

     I imagine that Social Security will find a simple way of responding to GAO's findings. They'll just make the current rule -- when in doubt, deny -- even more explicit. They certainly won't do anything to help people with dual diagnoses -- substance abuse plus another physical or mental impairment. If anything, the GAO report seems only to be telling Social Security to find a better way of checking off boxes rather than encouraging them to take a serious look at the problem.
     The GAO itself could have taken a more in-depth look at the problem. They fail to mention that the dual diagnosis issue primary concerns one psychiatric illness -- bipolar disorder -- which has a dramatic overlap with substance abuse strongly suggesting a genetic link. It's literally impossible to tease out what's caused by bipolar disorder from what's caused by substance abuse because it's all one disease entity. The GAO investigators also failed to understand that the Social Security Administration itself changed its policies in 2013 to put the burden on the claimant to prove a negative -- that their substance abuse isn't material to the determination of disability. If you're not a lawyer, let me clue you in on something well understood by lawyers. It's impossible to prove a negative. For instance, I can tell you that I've never used crack cocaine -- I haven't -- but how can I prove it? That's the whole point of Social Security's current policies. Put an impossible burden on the claimants and then deny them. The GAO report says in a footnote that Social Security told them that Social Security Ruling 13-2p, the policy change I mentioned earlier, really didn't change anything. That's seriously revisionist history. The policy in effect before the ruling was 180 degrees different. It's like this every time Social Security changes its policies. The agency insists that it hasn't changed its policies when it's obvious that it has.

Another Drug Addicted Hillbilly Story From The Washington Post

    There's another installment in the Washington Post's never-ending set of stories designed to prove that the reason that there are more disabled people than there used to be is opioid addiction. 

     Wow, you know there ought to be a law saying you can't get Social Security disability benefits because you're a drug addict or alcoholic. Oh, wait, there is. Well, they ought to really enforce it. No, wait they already do. 

     So why is opioid addiction coming up in every piece that the Post does on Social Security disability? I don't know but it looks a lot like they're really interested in stigmatizing Social Security disability recipients. There are studies showing that around 27% of the adult population engages in binge drinking and that 9% of the adult population uses illicit drugs. Opioid abuse affects 4.6% of the adult population. That's a lot of people with substance abuse problems. Substance abuse affords no immunity to arthritis, heart disease, mental illness, cancer or any other health affliction. It's easy to find Social Security disability recipients who have substance abuse problems because such a significant percentage of the population has a substance abuse problem. But they didn't get on disability benefits because of the substance abuse but despite it.

     By the way, the Post keeps concentrating on opioid problems in Kentucky and West Virginia. Certainly, those states have problems but the states with the worst problems are Oregon, California, Washington, Idaho, Indiana and Arizona. I guess those states don't fit with the dumb hillbilly drug addict theme. By the way, I'm sure the Post could have found plenty of opioid addiction in D.C. and its suburbs if it had tried. It's everywhere.

Alcoholic ALJ Fights Disciplinary Action

     From The Daily Caller:

A Social Security Administration (SSA) disability judge admitted to routinely being drunk on the job and sexually assaulting a federal security guard, and now claims government employee union precedents bar his being disciplined since he says his superiors knowingly tolerated numerous other employees being inebriated in the office.

Sridhar Boini is also invoking disability on his own behalf, saying his alcoholism is a condition government managers must accommodate, a March 22 filing with the Merit Systems Protection Board (MSPB) shows. He demands the right to try cases over video so he could keep drawing a paycheck without the public being exposed to him. ...

Some of the incidents took place in a public area of the Scranton, Penn., SSA office, and numerous people whose cases Boini adjudicated are now appealing on the basis that the judge may have been drunk when he turned them down. ...

A Question And An Opinion

Is it appropriate for a Commissioner of Social Security to change the agency's basic interpretation of a statute without any intervening change in the statute? I was under the impression that members of the Federalist Society such as Michael Astrue opposed reinterpreting even the Constitution which is over 200 years old. Of course, there is the recent example of Citizens United v. FEC where other members of the Federalist Society were quite happy to reinterpret the Constitution when it suited the interests of their political party.

My opinion is that if a Commissioner does not like the settled interpretation of a statute that he inherits that he should go to Congress and ask them to change the statute instead of threatening to unilaterally change that interpretation.

Policy Change On Substance Abuse Coming?

From a Request for Comments to be published in the Federal Register tomorrow:

We are requesting your comments about our operating procedures for determining disability for persons whose drug addiction or alcoholism (DAA) may be a contributing factor material to our determination of disability. ...

To provide guidance on how we interpret the DAA provisions of the Act, we issued instructions to our employees in an Emergency Message on August 30, 1996. ...

We are asking for your comments on the procedures we follow when evaluating DAA. In particular, we would like your opinion about what, if any, changes you think we should make to our instructions. For example, do you have any suggestions about:

• What evidence we should consider to be medical evidence of DAA?
• How we should evaluate claims of people who have a combination of DAA and at least one other physical impairment?
• How we should evaluate the claims of people who have a combination of DAA and at least one other mental impairment?
• Whether we should include using cigarettes and other tobacco products in our instructions?
• How long a period of abstinence or nonuse we should consider to determine whether DAA is material to our determination of disability?
• Whether there is any special guidance we can provide for people with DAA who are homeless?

Social Security's position has been that if it is impossible to separate the effects of DAA from the effects of other psychiatric illness that the combined effect of both may be considered disabling. This situation is frequently present in individuals suffering from bipolar disorder, a psychiatric illness which has a high degree of association with DAA. A change in this policy would be of considerable importance.

Social Security has never previously asserted or even suggested officially that tobacco use could be considered DAA.

The talk of whether a period of abstinence should be required before a person could be found disabled is worrisome. The statute does not forbid disability payments to alcoholics and drug addicts. It merely prohibits consideration of alcoholism and drug addiction in determining disability. A person may have a raging substance abuse disorder but be found disabled due to other health problems. This has always bothered some people. They find drug abuse and alcoholism so loathsome that they believe that no one alcoholics or drug addicts should be on Social Security disability benefits even though the statute says otherwise. One interpretation of this notice is that Social Security has a desire to move towards forbidding benefits to anyone with a substance abuse problem.

An Oldie But A Goodie -- On DAA The Tie Goes To The Claimant

This is nothing new. In fact, it dates back to August 30, 1996 when the statute forbidding payment of disability benefits when drug abuse or alcoholism is material to the determination of disability was very new. It is just that it remains important and remains current Social Security policy, but people who ought to know better, both inside and outside Social Security, keep forgetting Emergency Message 96-200. Here is the key quote:

Q. The most complicated and difficult determinations of materiality [of drue abuse or alcoholism] will involve individuals with documented substance use disorders and one or more other mental impairments. In many of these instances, it will be very difficult to disentangle the restrictions and limitations imposed by the substance use disorder from those resulting from the other mental impairment(s). Can any examples be provided for how to handle the materiality determination in these situations/ or can any guidance be provided for the type of information that should be used in trying to assess the impact of each impairment?

A. We know of no research data upon which to reliably predict the expected improvement in a coexisting mental, impairment(s) should drug/alcohol use stop. The most useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol. Of course, when evaluating this type of evidence consideration must be given to the length of the period of abstinence, how recently it occurred, and whether there may have been any increase in the limitations and restrictions imposed by-the other mental impairments since the last period of abstinence. When it is not possible to separate the mental restrictions and limitations imposed by DAA and the various other mental disorders shown by the evidence, a finding of "not material" would be appropriate. See the response to question 27.

Drug Binges And Social Security Disability Benefits

From a press release issued by the Substance Abuse Policy Research Foundation of the Robert Wood Johnson Foundation:

Paying out certain types of government aid in a monthly lump sum appears to fuel a spate of harmful and often fatal drug binges, according to a new study in a forthcoming issue of the Journal of Public Economics that links the monthly arrival of disability checks with a sharp rise in drug related hospitalizations and deaths. The findings by researchers at the University of California, Santa Cruz and Texas A&M University suggests that spreading out aid payments over several weeks could be a way to relieve some of the stress on hospitals and health care workers who struggle to handle the monthly surge.

The analysis found that in California, the 23 percent increase in drug-related hospital admissions that occurs in the first five days of any given month is driven largely by the arrival of Supplemental Security Income (SSI) and Social Security Disability Income (DI) payments. In particular, hospital deaths among SSI recipients increase 22 percent at the beginning of the month.