Commissioner Says Attorneys Have No Obligation To Submit Adverse Medical Evidence In Social Security Disability Cases

     I posted last week about Social Security Commissioner Michael Astrue's testimony before the Senate Finance Committee. I wrote that Astrue said emphatically that attorneys who represent Social Security claimants are under no legal obligation to submit adverse medical evidence. (While I agree that there is no legal obligation, it is my practice to submit adverse medical evidence and I encourage other attorneys to do so but I won't detail my reasons now.)

     I wish I could get a video clip of Astrue's testimony just on this subject but so far I haven't. If anyone has the video editing software and experience to do it, this testimony is about one hour into the hearing. I think a lot of people would find it interesting if it were posted on Youtube. 

     At least, now we have this transcript:

In response to a question from Senator Thune (R-SD) regarding the December 2011 Wall Street Journal article re withholding evidence, the Commissioner responded:

Commissioner Astrue: Senator, I'm afraid I am going to have to disagree with a number of the assumptions of your question. First of all, I am familiar with the Wall Street Journal article. We did not take no action - we did refer that to the Office of the Inspector General. If you have questions about the progress of that, I would encourage you to talk to the Inspector General.

But that article was relatively thin in terms of the content of allegations. There really was not, in my opinion, very much there. It's also based in part on the misassumption that there's a requirement for all relevant evidence to be provided to the judge. Right now, that is not the law. The previous two Commissioners tried to make that the law and my understanding is that they received a lot of opposition and not much support here in the Congress for that.

First of all, the Wall Street Journal had it dead wrong on what the law is. And second, there wasn't much in the way of allegations. Third, it would be unprecedented to go back and review all cases by a law firm on evidence anywhere near this thin. If you had proof of real fraud, and I have no information from the Inspector General that suggests that we have that, then it would be totally unprecedented to do that. Any court that would look at that would throw it out. It would be an enormous waste of the taxpayers' dollars for me to do that.

Sen. Thune asked the Commissioner whether he could summarize the Inspector General's findings. He responded that there is no report yet and he testified:

Commissioner Astrue: I don't have much more than that. But certainly, my expectation ... Again, Senator, read that Wall Street Journal article very carefully. When you realize, first ofall, that there is not a legal obligation to present every bit of evidence to the Agency because our rules are not written that way, there is a factual error underlying that whole article. Past that, there is not very much very specific in terms of evidence: there is unsupported hearsay, that type ... It may be true. But in order for us to take action, we've got to have some proof and evidence. The Wall Street Joumal article did not provide very much for the Inspector General to go on.

Romney And Marx Agree That The State Will Wither Away

     From the Center for Budget and Policy Priorities:

Governor Mitt Romney’s proposals to cap total federal spending, boost defense spending, cut taxes, and balance the budget would require extraordinarily large cuts in other programs, both entitlements and discretionary programs, according to our revised analysis based on new information and updated projections.

For the most part, Governor Romney has not outlined cuts in specific programs. But if policymakers exempted Social Security from the cuts, as Romney has suggested, and cut Medicare, Medicaid, and all other entitlement and discretionary programs by the same percentage — to meet Romney’s spending cap, defense spending target, and balanced budget requirement — then non-defense programs other than Social Security would have to be cut 29 percent in 2016 and 59 percent in 2022...

The cuts that would be required under the Romney budget proposals in programs such as veterans’ disability compensation, Supplemental Security Income (SSI) for poor elderly and disabled individuals, SNAP (formerly food stamps), and child nutrition programs would move millions of households below the poverty line or drive them deeper into poverty. ...

      In practical terms for the Social Security Administration, there would not be enough money to pay SSI benefits by 2016 but, then, the agency wouldn't have enough money to administer SSI anyway. By 2022 there would not be enough operating funds to administer just Title II of the Social Security Act.

Saipan Wants In

     The Northern Marianas Islands (NMI) is (are?) a U.S. commonwealth, like Puerto Rico, with a population of around 50,000. Unlike Puerto Rico, employment in the NMI has not been covered by Title II of the Social Security Act. Now, the NMI government is trying to get its citizens covered by Title II of the Social Security Act and to do so retroactively for ten years. Social Security only wants to go back five years. Apparently, discussions have been taking place on this subject since 2006. The NMI's own Social Security system is going bankrupt. Anyway, read the article for yourself and try to figure it out. It confuses me. It's probably a headache for Social Security management as well. It sounds like things are coming to a head. I don't understand how the Social Security Administration could approve this without legislation but I do not pretend to understand the legal relationship between the NMI and the U.S.

A New Idea That's Going Nowhere

     This idea is going nowhere but Ezekiel Emanuel authored an op ed piece in the New York Times yesterday advocating that full retirement age for Social Security be raised on some sort of sliding scale based upon "lifetime wealth" which he defines basically as lifetime earnings covered by the F.I.C.A. tax. Full retirement age stays where it is for lower income people but raises for higher income people.

     I see few Democrats interested in this since it is a back-handed way of means testing Social Security and means-testing Social Security would undermine its support. I see few Republicans interested in this since it discriminates against high income individuals. Republicans already have problems with the graduated income tax.

     By the way Ezekiel Emanuel does not seem to know that full retirement age is already set to rise to 67 under current law. And also by the way, yes, Rahm Emanuel is his older brother and the two frequently disagree.

In A Rare Moment Of Unanimity, Supreme Court Rules Against In Vitro Posthumous Kids

     From the New York Times: "Children conceived with a dead father’s frozen sperm are not entitled to Social Security benefits if they were not eligible to inherit property from him under state law, the Supreme Court ruled unanimously on Monday."

     Note that the children might have qualified had another state's law applied.

     Update: This case may not be over. From a footnote in the opinion:

Because the Third Circuit held that posthumously conceived children qualify for survivors benefits as a matter of federal law, it did not definitively determine “where [Robert] Capato was domiciled at his death or . . . delve into the law of intestacy of that state.” 631 F. 3d, at 632, n. 6. These issues, if preserved, may be considered on remand.

The National Council On Disability Needs To Meet More Disabled People

     I have written recently about the attitudes towards the Social Security disability programs that exist within what I'll call the ADA community, a group of people, many of them in wheelchairs, who are committed to the notion that literally anyone can and should work, regardless of the severity of their disability. They believe that the Americans with Disabilities Act (ADA) changed everything, despite the abundant evidence that it changed almost nothing. The ADA community seems to regard the existence of Social Security disability benefits recipients as a sign of a great failing, by society  They believe that all those recipients should be working and would be working if only something -- they don't know what -- were changed. The ADA community seems to think that every disability is much the same as being in a wheelchair, something that a well-motivated person who has a bit of help should overcome. If you think I'm exaggerating, take a look at these excerpts from an announcement by the National Council on Disability (NCD), an independent federal agency: 

Notice of Funding Opportunity 

NCD-02-12

NCD seeks an individual or entity to undertake a project to analyze the various options for SSDI [Social Security Disability Insurance] and SSI [Supplemental Security Income] reform, including what measures could facilitate people currently receiving SSDI and SSI benefits in being able to work, what measures could decrease the likelihood of needing such benefits, and what financing options exist to extend the life of both programs. ...

Suggested Framework for Research

The National Council on Disability is interested in answering the following questions:

1. What would a fundamental restructuring of the SSI and SSDI system require to align it with the goals of the Americans with Disabilities Act, i.e. eliminate the requirement that an SSDI applicant declare themselves unable to work in order to be eligible for benefits; provide job retention supports to working people with disabilities who are at risk of job loss as a result of their disability; assist people with disabilities who are at risk of job loss because they are not receiving reasonable accommodations.
2. Given the extremely diverse populations served by the SSI and SSDI programs, how might different reform strategies disproportionately impact – either positively or negatively – particular segments of the disability community?
3. Based on the most current evidence-based research, does the Medicaid buy-in opportunity impact work activity?  How should it be modified to promote work opportunities for people with disabilities?
4. To what extent has the Ticket-to-Work initiative been evaluated?  What lessons can be drawn from the challenges the Ticket to Work program has faced in realizing its intended goals?  If sufficient information is available to make a determination, what reforms to the Ticket to Work program are recommended?
5. Did the research reveal any changes to other federal programs that would have a positive impact on the health and effectiveness of the Social Security Programs and work opportunities for SSDI and SSI beneficiaries?
6. Could an incentive mechanism be used to encourage employers to make more efforts to accommodate employees with disabilities and to avoid employees with disabilities going on to SSDI rolls, e.g. an experience rating system whereby employers, whose employees have a lower rate of SSDI retirements, pay lower SSDI payroll taxes?
7. Could an incentive mechanism be developed to encourage states to supplement the SSI program with state funds?
8. Could an incentive mechanism be used to encourage more employers to offer private disability insurance policies that would supplement the SSDI program?
9. Are there other changes to the SSDI or SSI programs that would promote work activity, preserve benefits for those who need them, and secure the fiscal integrity of these programs?

     These proposals come despite the fact that the Congress has again and again fallen for the siren call of the ADA community and stuffed the Social Security disability programs with every imaginable incentive for recipients to return to work, so many incentives that keeping them all straight is a huge challenge. The only thing left is to stop with the incentives and try compulsion -- time limited benefits. That would be an enormous mistake but there is literally nothing left to try if you really believe that all those disability recipients should be put back to work. By this point, the ADA community is a positive menace not only to Social Security disability recipients but to the Social Security Administration and Congress. They are pulling policy making in a potentially calamitous direction.

CDI Unit Active In Utah

     This is from an piece, which mostly concerns allegations of workers compensation fraud, posted by a Utah television station:

People who feign disabilities in Utah can get away with millions of dollars – money you pay into social security and money employers pay to cover accidents on the job. ...
 
Workers compensation is a private insurer that began as a state agency. On the federal level, the Social Security Administration provides disability benefits. 

It has a "Cooperative Disability Investigation Unit" - operating in Salt Lake for roughly a year – which tries to stop fraud before it starts.

In a recent 3 month period, the local CDI unit, as it's called, says it confirmed 42 cases of fraud or "similar fault."

Lack Of Health Care Access A Big Problem For Disability Claimants

     From Improving Access: Expanding Acceptable Medical Sources for the Social Security Administration Disability Determination Process, a report by the National Law Center on Homelessness and Poverty:

Currently, the process for obtaining SSI [Supplemental Security Income] and SSDI [Social Security Disability Insurance] can be cumbersome and, too often, there are unnecessary delays. Allowing nurse practitioners, physician assistants, and licensed clinical social workers to provide diagnostic evidence of certain medical conditions would streamline the process for obtaining benefits, ensuring that eligible individuals gain access to these critical benefits in a timely manner.

For individuals who are homeless, such expansion would have an especially meaningful impact. Currently, many people who are homeless and who are generally uninsured have great difficulty accessing assessment, treatment, and care from physicians and, for mental health problems, psychologists and psychiatrists. Programs and services dedicated to serving homeless people are increasingly overwhelmed by the tremendous need for treatment and services, and many programs cannot meet this rising demand.

     This will only get poor people so far. There's no way you can get around it. Decision-makers aren't going to give as much weight to CNAs, PAs and LCSWs as to MDs.
     I represent a fair number of homeless people. Lack of access to medical care is a huge problem for this population. So many of these people would get on disability benefits quickly if they just had medical insurance. I expect that a lot of people who work at Social Security would agree. Obamacare should do that before long if the Supreme Court doesn't get in the way.