Are You Sure You Want To Incorporate The ADA Into Social Security Disability Determination?

     Not long after the passage of the Americans with Disabilities Act (ADA), the Social Security Administration decided that it would not try to incorporate the ADA requirement that employers afford reasonable accommodation to those with disabilities into Social Security disability determination. We now hear rumblings that this was the wrong decision and that Congress should force the agency to acknowledge that with the "reasonable accommodation" provided for in the ADA that many more disabled people can now work and should not be drawing disability benefits from Social Security.
     There a couple of simple responses to this idea. One is that employer attitudes towards the disabled have always been irrelevant in determining disability under the Social Security Act so that passage of the ADA was pretty much irrelevant. The second is that the ADA hasn't wrought any revolution for disabled people. In fact, it's had virtually no impact upon the hiring of disabled people, particularly since it's largely been interpreted out of existence by the courts.

     But let's put those arguments aside and try to game how incorporating the ADA into Social Security disability determination would play out. The terms "disability" and "reasonable accommodation" have been extremely troublesome in interpreting the ADA. Try to incorporate the ADA into Social Security disability determination and you inevitably end up with a lot of federal court litigation to try to define what these terms mean., not in the Social Security Act but in the ADA. On the one hand you would have Social Security insisting that a Social Security disability claimant has a "disability" as that term is defined in the ADA but is not "disabled" as that term is defined in the Social Security Act because of the "reasonable accommodation" afforded by the ADA. On the other hand, you would have the claimant arguing that he or she is "disabled" as that term is defined in the Social Security Act but that he or she does not have a "disability" as that term is defined in the ADA -- and believe it or not, given how the ADA has been interpreted that will often be a strong argument -- or because the accommodation needed so that he or she could return to work would go beyond what is reasonable Holdings in Social Security litigation over the meaning of the ADA would inevitably affect employers but all of this litigation -- thousands, perhaps tens of thousands of cases a year -- would proceed without an employer or the Equal Employment Opportunity Commission (EEOC) being a party. 

      I think that would be madness.
     By the way, it would be impossible for Social Security to go down this road without legislation. Social Security has already told the Supreme Court that its interpretation is that passage of the ADA had no effect on Social Security disability determination. An agency can't change its mind about this sort of thing after making that formal a declaration. Trust me on this. I'm a lawyer.

Using The Death Master File For Vote Suppression

    From the Cox Newspapers:

Two months before the presidential election, thousands of registered Texas voters are receiving letters asking them to verify they are not dead.

The nearly 77,000 letters, called notices of examination, were sent out by election officials to comply with a 2011 law passed by the Legislature requiring the secretary of state’s office to cross-reference the voter rolls with the Social Security Administration’s enormous death master file to determine if a voter could be deceased. ...

Texans receiving a letter have had either a strong or weak match between their voter registration information and the data in the death file. Because of the size of the death file, the Social Security Administration does not guarantee its accuracy.

A match is strong if the last name, date of birth and all nine Social Security numbers are identical. A weak match occurs when two records have either the same nine digit Social Security number and same date of birth, or the last four Social Security numbers, the same birth date and one matching name component. A voter’s registration will be canceled automatically if the match is strong, but not if the match is weak, according to the Travis County voter registrar. ...

In Harris County, the voter registrar sent out more than 9,000 letters, but, after receiving complaints from voters, decided to take no further action, according to the Houston Chronicle. The Secretary of State’s Office has threatened to cut voter registration funding to the county if it does not comply, the newspaper reported.

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The Day Social Security Was Found To Be Constitutional

Charles E. Wyzanski, Jr., the attorney who argued for the government before the Supreme Court in the case of Helvering v. Davis which established the constitutionality of Social Security. This photo was taken shortly after Wyzanski learned of the Court's decision. (Pictured leaving the Supreme Court building?)

Rehab Pushed At Congressional Hearing

     Here are some excerpts from two of the written statements for today's hearing before the House Social Security Subcommittee:

• Richard Burkhauser:

In sum, SSDI growth has primarily been driven by factors other than an aging workforce, health declines, and the increasing SSDI coverage of women. Loosening of program rules in the 1980s has made it more difficult for gatekeepers to judge eligibility and increased the likelihood that applicants facing rising replacement rates or declining economic opportunities will apply for SSDI benefits. A growing number of individuals being allowed onto the rolls could work in some capacity and would do so if they were not judged eligible for benefits.

     Burkhauser's evidence to support the proposition that age is the cause of increasing claims for disabiliity benefits is the fact that increasing age didn't cause an increase in the incidence of disability in the time period 1983-2003. Of course, that was before the baby boom generation started hitting their 50s, making it irrelevant in my opinion.

     Burkhauser's solution is to adopt the emulate Holland which "required all Dutch firms to fund the first two years of disability benefits to their workers and to pay an experience-rated disability tax based on the number of workers they subsequently moved onto the long-term Dutch disability insurance program."

• Daniel Bertoni of the Government Accountability Office (GAO):

Although giving broad consideration of assistive devices and workplace accommodations may be difficult to incorporate into the current disability criteria and process, SSA may be missing opportunities to move further in this direction. Officials we spoke with from an organization of vocational examiners expressed frustration with having seen young individuals who could work with minor accommodations being provided disability benefits likely throughout their working life, rather than receiving support to pursue work.

ALJ Financial Disclosure Forms To Be Posted

     Federal Administrative Law Judges (ALJs) have long been required to file financial disclosure forms. I suppose one could make a Freedom of Information Act (FOIA) for one but it never occurred to me to request them. I am now hearing that Social Security intends to post online next year the financial disclosure forms filed by its ALJs. I hope this isn't coming to pass.

     I don't see the point of this. It's hard for me to imagine finding anything on one of these forms that would display a conflict of interest for a Social Security ALJ. This looks like an unwarranted invasion of privacy which could deter good people from becoming ALJs. When told of this plan one attorney I know  responded "Oh HELL no! I would never, ever want that information made public. Are they serious!!? If I ever had even slight aspirations of being an ALJ in my old age…I don’t anymore…."

     I hope this receives more consideration.

     Update: This is not the doing of the Social Security Administration. It is required by the Stop Trading on Congressional Knowledge (STOCK) Act. I do not understand why a scandal over members of Congress trading on inside information would require posting on the internet the financial disclosure forms filed by civil servants. That just punishes innocent people and makes it harder for the government to recruit talent. Just yesterday, a federal judge temporarily blocked implementation of the STOCK Act.

Senator Coburn Finds The Gold Standard For Determining Disability

     I thought that Senator Coburn had Social Security's Office of Inspector General (OIG) make a study a Social Security Administrative Law Judge (ALJ) decisions on disability claims. How wrong I was! He had the subcommittee's Republican staff make the determination of whether the ALJ decisions were good or bad. I always wondered what the gold standard was in determining disability. Now, I know. It's untrained Congressional staffers but not just any Congressional staffers. Those staffers must be Republicans working for a Senator with a right wing agenda.

     Here's an example of the sort of thing that Coburn's staff found outrageous:

This 59 year-old claimant sustained a crush injury to his foot at work in January 2006, underwent a partial foot amputation, and received a prosthesis that should enable him to walk. The medical record documented that his wounds were healing well when the agency awarded benefits at the reconsideration level. By law, disability benefits may only be awarded to individuals with an impairment “which has lasted or can be expected to last for a continuous period of at least 12 months.” In this case, an award was made on October 26, 2006 – only ten months after the injury. Nothing in the record suggested that the claimant would suffer from permanent restrictions.

     At ten months out  from the date of a very severe injury one cannot possibly predict that a claimant will be disabled for a year or more? I got news for you, Senator Coburn. This one should have been approved almost immediately. It was a crush injury. Only part of the foot was amputated. Crush injuries heal very slowly. The claimant was 59. Healing happens even more slowly at age 59 than it does for someone in their 20s. The problem here is not that the claim was approved but that it took so long to approve it.

     Time and again, Coburn's staff is outraged that a claimant is approved when the medical evidence of disability is contradictory. There's usually contradictory evidence. The adjudicative process exists to weigh the evidence and resolve the contradictions. Coburn's staff appears to believe that any evidence that would justify a denial must be followed and any contradictory evidence must be ignored. Any other result is outrageous.

     Time and again, Coburn's staff is outraged that an ALJ approved a claim even though it had been denied at the initial and reconsideration levels. His staff appears to believe that ALJs should exist only to rubberstamp prior denials.

     The report talks of a "flood" or Social Security disability claims and increasing backlogs at Social Security but does not recommend additional funding for the agency, except for more funding for government representation at hearings. Here are the recommendations made (footnotes omitted):

1. Require Government Representative at ALJ Hearings. To ensure key evidence and issues are properly presented, reduce instances in which SSA ALJs overlook evidence indicating a claimant is not disabled, and increase consistency and accountability in ALJ decision-making, a representative of the agency should participate in all ALJ disability hearings and decisions. Including a government representative at the ALJ Level has long been a recommendation of both the Association of Administrative Law Judges and the Social Security Advisory Board. Congress should specifically designate funds for such a program.
2. Strengthen Quality Review Process. The new ALJ review process initiated by the Quality Division of the Office of Appellate Operations should be expanded and strengthened by conducting more reviews during the year and developing metrics to measure the quality of disability decisions. Such information should be made available to Congress.
3. Close the Evidentiary Record. To eliminate the confusion, inefficiencies, and abuses associated with the current practice of allowing medical evidence to be submitted at any point in a disability case, the evidentiary record should close one week prior to an ALJ hearing, with exceptions allowed only for significant new evidence for which exclusion would be contrary to the public interest.
4. Strengthen Use of Medical Listings. SAA should provide additional training to ALJs on the use of SSA Medical Listings, and direct ALJ decisions to identify how a claimant meets each required element of a listing, citing objective medical evidence and not just conclusory statements by an expert.
5. Expedite Updated Job List. SSA should move more quickly to ensure the Occupational Information System can serve as a usable replacement for the Dictionary of Occupational Titles to identify jobs that claimants with limited disabilities can perform in the national economy.
6. Focused Training for ALJs. The Office of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of determinations that involve both obesity and drug and alcohol abuse. This training should emphasize the proper way to analyze and address these issues as required by law, regulation and agency guidance.
7. Strengthen Consultative Examinations. Because many disability claimants do not have sufficient funds to obtain detailed medical evidence of their conditions, SSA should determine, with input from ALJs, how to improve the usefulness of agency-funded Consultative Examinations (CEs), including by requiring an explanation of any significant disparity between the CE’s analysis and other evidence in the case file.
8. Reform the Medical-Vocational Guidelines. The medical-vocational guidelines should be reviewed to determine if reforms are needed. Additional study should be conducted to evaluate whether the current guidelines utilize the proper factors and if they appropriately reflect a person’s ability to work.

     Coburn doesn't want to put a thumb on the scales of justice. He wants to stomp on them.

Congress Demands Better Service But Isn't Willing To Pay For It

     The House of Representatives has passed a bill to improve customer service at federal agencies. The bill provides that:

The Director of the Office of Management and Budget shall develop—
(A) performance measures to determine whether agencies are providing high-quality,timely customer service and improving service delivery to customers of the agencies; and 
(B) standards to be met by agencies in order to provide high-quality customer service and improve service delivery to customers of the agencies, including—
     (i) specific milestones and performance targets for continuous service improvements and efforts to modernize service delivery; and
      (ii) where appropriate, target response times for telephone calls, electronic mail, mail, benefit processing, and payments.

     However, the bill also provides that "It is the sense of Congress that no additional funds should be appropriated to carry out this Act." The problem is that without additional funds, Social Security isn't going to provide better service to the public. In fact, lack of adequate funding is placing the agency on a trajectory that leads to much worse customer service.