Why ALJs Approve Disability Claims

     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.

     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.

Click on the image to view full size

     Let my explain a few things from this report.

• "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.

Memorial Day

I'll Be Happy To Reach The End Of This Story

     Eric Conn may have reached a plea deal on the many criminal charges he still faces. Unfortunately, the problems will continue for many of his former clients for a very long time.

Researchers Suggest Ending Early Retirement

     A new study from researchers associated with the Federal Reserve Bank of Dallas suggests that the availability of early retirement benefits makes people poorer. Of course, chaining people to their jobs until they drop dead might also make them less poor, in one sense.

     There's a ruthlessly mercenary aspect to this -- the unstated premise that nothing in life can have worth unless it can be measured in dollars. There's also a failure to understand that many, perhaps most, who retire at age 62 are not doing so because they really want to retire but because they're too sick to go on working even though they're loath to file a disability claim.

     This is a report that could only have been written by younger people.

Study On Deaths While Awaiting ALJ Hearings

     From a study by Social Security's Office of the Chief Actuary on Probability of Death While Pending an Administrative Law Judge Determination:

There are two key findings. First, the death rate for individuals who are awaiting an ALJ determination has declined somewhat over the period from 2006 to 2017. Second, the death rate for this group, while it is two to three times as high as that for the general population, is only about one-fourth of the death rate for workers who have been awarded disabled worker benefits and are in their first two years of benefit entitlement. ...

Click on each table to view full size

     The summary given above is accurate but I don't see why anyone would find this report reassuring. There are far too many people waiting for hearings and thousands of them die each year. 

     To give a full report on this issue shouldn't the Office of Chief Actuary have looked at what happened to those disability claims after the claimants died? The vast majority of those cases didn't die with the claimant. Someone was entitled to whatever benefits accrued before the claimant's death. Sure, some of those claims were denied but I'm pretty sure that the vast majority of those claims were approved after the claimant died. Isn't that an important?

Solving Social Security Problems The Old Fashioned Way -- Getting News Media Attention

     From a television station in Arizona which hides its call letters:

The whole situation didn't seem plausible. A 7-year old's financial life entangled with a complete stranger's.

She is now 14 years old. The Peoria girl's Social Security number was used fraudulently and repeatedly since she was a second grader and as recently as last year. She had businesses and bank accounts connected to her. Debt collectors were calling her house.

But, the Social Security Administration would not issue the girl a new number. Not after begging from her mom, not with detectives and attorneys pleading her case, not even after Senators John McCain and Jeff Flake got involved, sending letters to SSA on the child's behalf.  For 7 years, denial after denial. Then her story aired on ABC15.

"48 hours later, I get a phone call from Social Security and they offered us a new number," said the girl's mother, Jill Carlon. ...

It sounds easy now, but Carlon will tell you it has been anything but. Over the past 7 years, Carlon said Social Security recommended she press charges against the fraudster, local charity founder Jacqueline Harris, if she wanted to obtain a new number for her daughter. Harris was then convicted of one felony count of possession of a forgery device. Then Carlon said the goal post moved. If she wanted a new number, Social Security said she would have to change her daughter's name. She did that too. But it still wasn't enough to get a new number. ...

Not Since February 9, 2009

     The Social Security attorney fee cap was raised on February 9, 2009 to $6,000 and hasn't budged since. If it had been indexed for inflation, it would now be over $7,000. Why hasn't it been raised? I think the fact that Republicans have controlled the House of Representatives since 2011 might have something to do with it. Republicans are all against government regulation except when it comes to anyone they perceive to not be Republican.
     Meanwhile, we hear more and more complaints from the Social Security Administration about the quality of representation that claimants receive. I expect that many complaints are justified. This problem might have something to do with the erosion of Social Security attorney fees in the face of rapidly burgeoning case files. You get what you pay for, or perhaps in this case, what you allow other people to pay for.
     By the way, if your opinion is that we ought to do away with any government involvement in attorney fees, that's fine with me as long as you allow me a lien on my clients' back benefits, the same type of lien that's widely used throughout the economy. Try taking your car in to the dealership for repairs and then getting it back without paying the repair bill. You can't because the dealership has a mechanic's lien on the car. That's normal. Why should attorneys be treated worse than car dealerships?

Annual Accounting Relief

     From a press release:

Yesterday, the United States District Court for the Western District of Oklahoma announced its decision to grant the Social Security Administration (SSA) partial relief from the 1984 Jordan v. Schweiker decision requiring all representative payees to submit an annual accounting form. This decision allows the SSA to move forward implementing a key provision of the Strengthening Protections for Social Security Beneficiaries Act.

Commenting on this decision, Rep. Sam Johnson (R-TX), the Chairman of the House Ways and Means Social Security Subcommittee, said:

“Last month, President Trump signed into law Ranking Member Larson’s and my bill that improves Social Security’s representative payee program in order to better protect beneficiaries who are unable to manage their own benefits.  The District Court’s decision yesterday frees Social Security to implement our commonsense bill that would relieve families from burdensome reporting requirements.  I thank Social Security and the Department of Justice for moving quickly to request this relief.” 

Subcommittee Ranking Member John Larson (D-CT) added:

“I am pleased that the Court has affirmed the intent of our bipartisan legislation, which strengthened Social Security’s Representative Payee program for vulnerable beneficiaries who are unable to manage their own funds. The ruling allows SSA to fully implement the new law, which lifted a burden on families caring for their children and refocused SSA’s resources on those beneficiaries most at risk for exploitation, including by supporting protection & advocacy groups like Disability Rights Connecticut that exist in every state. I’d like to thank Chairman Johnson for his tireless efforts on behalf of the country’s vulnerable beneficiaries.”

Supreme Court To Hear Social Security Attorney Fee Case

     The Supreme Court has issued a writ of certiorari (meaning they'll hear) Culbertson v. Berryhill on the issue of:

Whether fees subject to 42 U.S.C. § 406(b)’s 25-percent cap related to the representation of individuals claiming Social Security benefits include, as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold, only fees for representation in court or, as the U.S. Courts of Appeals for the 4th, 5th, and 11th Circuits hold, also fees for representation before the agency.

     This will be coming up in the Supreme Court's next term, which begins in October.

OIG Report On Disability Claimants Being Overpaid After They Return To Work

     From a recent report by Social Security's Office of Inspector General (OIG):

Using data extracted from the eWork system, we identified 4,504 beneficiaries from 1 segment of our data who completed a TWP [Trial Work Period] in Calendar Year 2012 and whose re-entitlement period ended in 2015.6 From this population, we selected a random sample on which to conduct detailed analysis. ...

Of the 200 sampled beneficiaries, SSA determined 97 had earnings that exceeded SGA after the TWP. Of the 97, SSA incorrectly paid 77. The Agency also incorrectly paid one beneficiary because it erroneously determined earnings had not exceeded SGA. In all, SSA incorrectly paid these 78 beneficiaries almost $1.3 million. Of the overpaid amount, SSA incorrectly paid

• almost $446,000 because of its own processing delays and errors and
• over $823,000 because of beneficiaries’ reporting failures. ...

We estimate SSA overpaid more than $571 million to over 35,000 beneficiaries who completed a TWP in 2012. Of the $571 million, SSA incorrectly paid almost $201 million because it failed to process work CDRs correctly or within its processing time goal and almost $371 million because beneficiaries failed to report their earnings, as required ...

     The OIG report assumes that if a claimant reported to Social Security that they had returned to work that the agency would have kept a record of that report. They're certainly supposed to but anyone who has experience in this field knows that many claimants insist that they did tell Social Security even though Social Security says that there's nothing in their records recording that. It's impossible to know for sure in each individual case but there are so many reports like this that no one at Social Security should feel confident about their process of recording reports of return to work. For a sign of the agency's fallibility, just look at how frequently they failed to act promptly even when they did record the report of return to work!
     I doubt that there's a foolproof solution to this problem. However, simplification of Social Security's work incentives would help. What's happened over the decades is that some member of Congress gets the bright idea that Social Security could reduce the number of people drawing disability benefits if they just gave them an incentive to return to work. Staffers try to tell the member of Congress gently that work incentives already exist but the member of Congress doesn't bother to study what already exist. They just insist that the staffers come up with a plan for new work incentives in the naive belief that one more work incentive will do the trick. That's how we end up with Expedited Reinstatement on top of the Extended Period of Eligibility on top of the Trial Work Period, supplemented by the concept of Impairment Related Work Expenses, not to mention Subsidized Employment, Unsuccessful Work Attempts, the separate blind standard for determining Substantial Gainful Activity and the near impossibility of determining whether self-employment is Substantial Gainful Activity! What did I leave out? Oh yes, there's some separate SSI work incentives. How many claimant understand any of this? For that matter, how many Social Security employees really understand this?