Consultative Examinations Still Suck

A very small diabetic foot ulcer.  Not my client's foot.

 

    Social Security recently sent one of my clients for a consultative medical examination. She's a diabetic. At the time of the examination she has an ulcer on one of her feet. The consultative doctor records this fact that she told him about the ulcer. The claimant was and is complaining more than anything else about her feet, not just the ulcer but other quite significant foot problems as well. There's no mention in the report of an examination of the feet. The client confirms that she was never asked to remove her shoes and socks.

     There's a message tacked to the wall in the examining rooms at my physician's office telling diabetics to remove their shoes and socks since the physician will examine their feet. Probably, there's a similar message in the examining room where you're seen. That's standard medical practice. I'm a lawyer but I know very well that failing to examine the feet of a diabetic is bad medical practice even when the patient is not complaining of an ulcer on her foot. When a diabetic patient is complaining about her feet and specifically mentions a foot ulcer, failing to examine the feet is enough to make one's jaw drop in any situation other than a Social Security consultative examination. It's sort of what you expect in a Social Security consultative examination, though.

This Is Your Best Argument?

     From the testimony of  Dr. Philip R. de Jong, a Dutch professor, called by Republicans to testify before the Senate Budget Committee (emphasis added):

The reformed Dutch DI scheme purports to cover only those that have hardly any productive capacity left, and to provide other workers with disabilities with strong incentives to remain active. The results for the first nine years of the operation of the new scheme show that inflow rates have dropped substantially to levels that are reasonable by international standards, and showed to be robust against the deep recession of 2008-2013. The incentive structure that steers the behaviour of employers and long-term sick workers proves to work.

     Even though de Jong presents the Dutch Social Security disability program as only covering those who "have hardly any productive capacity left", 8.3% of the Dutch population receives disability benefits while only 5.9% of Americans receive the benefits! The Netherlands only achieves its low rate of disability by requiring employers to spend large amounts of money on rehabilitation. The United States gets to a much lower rate of disability by a simpler route; it just denies most disability claims, imposing economic hardship on huge numbers of disabled people.

Future Funding Debate

     John Fritze at the Baltimore Sun has written a good summary of yesterday's Senate Budget Committee hearing. The hearing was supposed to focus on Social Security's Disability Insurance Trust Fund but often seemed to be a debate over future funding of the nation's entire Social Security system. A short version of the Republican position would be that the Social Security trust funds are going to run out of money in 18 years which would result in significant cuts in Social Security benefits so it's vital that Congress enact significant cuts in Social Security benefits today. A short version of the position of the Democrats would be that there's no need for any cuts in Social Security benefits if we just eliminate the cap on wages covered by FICA, a loophole that only benefits wealthy people.

Does This Look Out Of Control?

From Acting Commissioner Colvin's Testimony Before Senate Budget Committee

Acting Commissioner Expects Re-Nomination

     At today's hearing before the Senate Budget Committee, Acting Social Security Commissioner Carolyn Colvin was asked about her nomination for a term as Commissioner of Social Security. She said that she had not been re-nominated since the new Congress began but that she expected to be re-nominated.

Off Topic: Can Anyone Replace Jon Stewart?

     I'd say that no one can really replace Jon Stewart at The Daily Show. John Oliver has certainly proven that he can do it for the short run but I doubt that anyone can do it for the long haul. What do you think?

Just Ignore The Claimant's Wishes?

     I'm seeing and hearing of instances where Social Security is trying to schedule video hearings or assigning cases to remote hearing offices which could only hear a case by video despite the claimant's previously expressed desire not to have a video hearing. Is this just happening around here or is it happening in other parts of the country as well? Is this just a series of mistakes or the result of deliberate decisions made at higher levels? I wonder if trying to ignore the claimant's wishes is the agency's way of dealing with the fact that its effort to discourage resistance to video hearings is actually encouraging resistance.

OMB Clears Proposed Rule On Submission Of Evidence

     Just in time for tomorrow's hearing before the Senate Budget Committee, the Office of Management and Budget (OMB) has cleared Social Security's proposed rule requiring the submission of all evidence in Social Security disability claims. We can only hope that the agency made dramatic changes after this was originally published because the original proposal was completely unworkable.

     After OMB clears a regulatory proposal, the Commissioner has to sign off on it before it is published in the Federal Register. Typically, the Acting Commissioner has been taking a few weeks to review these before signing off on them. However, she can sign off immediately if she chooses. So far, the Office of Federal Register doesn't show the receipt of the final regulations. After publication, new regulations typically go into effect in 30 days. 

     I cannot emphasize too much how unworkable the original proposal was. Requiring the submission of "everything" sounds great but imposing this requirement without defining what "everything" means could bring about the collapse of representation of claimants. That would not just be bad for attorneys or their clients. The Social Security Administration is not prepared to cope with hundreds of thousands of unrepresented claimants, nor, for that matter, is Congress since that's where claimants turned before attorney representation of Social Security claimants became widely available. I speak from experience. I was around when there were few other attorneys doing this kind of work.