The Anti-Disability PR Gains Traction

     David Brooks a a columnist for the New York Times. He projects an image as a moderate conservative. He wrote an op ed piece today sharply criticizing Mitt Romney's comments about people who depend upon government assistance, saying that the Republican candidate "has lost any sense of the social compact." Towards the end of his piece, Brooks says that:

Sure, there are some government programs that cultivate patterns of dependency in some people. I’d put federal disability payments and unemployment insurance in this category. But, as a description of America today, Romney’s comment is a country-club fantasy. It’s what self-satisfied millionaires say to each other. It reinforces every negative view people have about Romney. 

     You note that even someone who wants to project an image as a moderate conservative feels it is safe to say that disability benefits "cultivate patterns of dependency in some people." This is a sign of the depth of penetration of the anti-disability benefits public relations effort. I have no doubt that this is penetrating into Democrat ranks as well. This poses dangers to those applying for or receiving Social Security disability benefits.

Fox News Talks Up Coburn Report

     From Fox News:

The Social Security Administration improperly awarded disability benefits in more than 25 percent of cases examined between 2006 and 2010, according to a new Senate report -- potentially costing taxpayers millions of dollars.

The findings conclude an 18-month investigation by the chamber’s Permanent Subcommittee on Investigations and show that roughly a quarter of the 300 randomly selected disability cases were awarded benefits “without properly addressing insufficient, contradictory and incomplete evidence.” 

Each questionable decision can mean a big taxpayer expense. According to one estimate, the average lifetime disability award is $300,000. 

The investigation was led by Oklahoma Sen. Tom Coburn, a medical doctor and the subcommittee’s top Republican. He said the bipartisan report shows information gathered over the past several years concludes the Social Security Disability Insurance and Supplemental Security Income programs are “teetering on financial bankruptcy.”

     The study wasn't bipartisan. It was anything but scientific. The people doing the study had no idea what they were doing. They had no business second-guessing anyone on disability determination. However, in a sense, none of this matters. All that matters to Fox is that it's easy to convince people, particularly those who lean rightward that people take advantage of a government benefits program.

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.

Presidential Poll

Free Web poll for your Web site - freepolls.com

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.