Federal Bar Association Newsletter

     The Social Security Law Section of the Federal Bar Association has released its Spring 2015 newsletter. This is the only attorney group with members in private practice as well as members employed by the Social Security Administration.

NADE Newsletter

     The National Association of Disability Examiners (NADE), an organization of personnel involved in making initial and reconsideration determinations on Social Security disability claims, has released its Spring 2015 Newsletter.

More Seemingly Plausible Ideas From House Social Security Subcommittee

     A press release from the House Social Security Subcommittee:

Today, Social Security Subcommittee Chairman Sam Johnson (R-TX) introduced the Improving the Integrity of Disability Evidence Act of 2015. The bill will ensure that the Social Security Administration (SSA) uses medical evidence only from reputable sources when making a disability determination.

“Hardworking American taxpayers expect that honest information is used when making disability determinations,” Chairman Johnson said. “It’s just common sense to say if you can’t participate in Medicare, Social Security can’t consider your medical evidence. Americans want, need, and deserve a fraud-free disability program.”

According to a 2013 report released by the Senate Committee on Homeland Security and Governmental Affairs, some claimant representatives seek out doctors who will provide medical opinions leading to a disability-benefit award without question. The report gives an example of a lawyer who sought out doctors with licensure problems to provide medical opinions to support benefit claims.

The SSA’s regulations already prohibit the agency from purchasing consultative exams from medical providers whose license has been suspended or revoked because of concerns with professional competence or conduct. However, the SSA does not have any similar restrictions on medical opinions provided by a claimant. In addition, to protect beneficiaries and federal health care programs, the Center for Medicare and Medicaid Services is authorized to bar a provider from receiving payment from federal health care programs due to certain actions. By law, doctors who have been convicted of program-related crimes, abused patients, committed health care fraud, or have a felony related to a controlled substance cannot participate in Medicare.

This legislation would prohibit the SSA from considering medical evidence from doctors who are barred from participating in Medicare or who were assessed a civil monetary penalty for submitting false evidence by the SSA.

A similar provision was included in Chairman Johnson’s Stop Disability Fraud Act of 2014 (H.R. 5260) from the 113^th Congress, and in Social Security Subcommittee Ranking Member Xavier Becerra’s recently reintroduced Social Security Fraud and Error Prevention Act of 2015 (H.R. 1419).

     Let me explain why this seemingly reasonable idea is really bad. First, anyone representing Social Security claimants who seeks out doctors with disciplinary problems to examine their clients and give medical opinions is a fool. The reports will carry little weight. If you've got any sense, it's not worth even thinking about doing. Only one example is cited. Is this enough to justify legislation? Second, and more important, what do you do about the claimant who has the misfortune of having as their treating physician someone who runs into disciplinary problems? The patient isn't the one who has done wrong. They have no way of knowing that their doctor is going to run into disciplinary problems or, for that matter, that they have already run into disciplinary problems. Honestly, do you check on this yourself before seeing a new physician? Going ahead with this proposal would cause some very sick people to be denied even though they're done nothing wrong. A physician who has fraudulently overbilled Medicaid has done something wrong and should be punished but don't punish their innocent patients.

Rising Tide Against Redistributive Government Policies?

     Is there a rising tide of opposition to redistributive government policies, such as Social Security, and is the rising inequality in income and wealth in the United States actually fueling that opposition?

Let Them Eat Cake!

    I see posts from one or more people on this blog saying that it's obvious that Social Security should be approving fewer disability claims since there's so many more sedentary office jobs now than there used to be. I think those who make these posts need to answer an important question. Why do people work at low wage, physically demanding jobs instead of higher paying, sedentary office jobs? To me, the answer to the question is obvious. They can't do the higher paying, sedentary office jobs! If you work in an office this may sounds nuts. Of course, anyone can work in an office. It's not that hard. Really? You may not be giving yourself enough credit. It takes at least a modest degree of intelligence as well as at least a moderate degree of social ability and mental stamina to work in an office. Not everyone has those characteristics. A high percentage of disability claims are filed by people who have the misfortune of having a borderline or low average IQ or who have chronic psychiatric problems. Those folks end up working in low paying, physically demanding jobs because they have no choice. Really, why else would anyone work in such employment if they could find an easier job that pays more? In high school, you didn't hang out with the people with low IQs or chronic psychiatric problems. They were almost invisible to you then and they still are but they exist in large numbers. It doesn't take much to disable them because they never had much to offer an employer other than a strong back and a willingness to work. The whole idea that you can take a person off the factory floor and put them in an office job is, for the most part, a "Let them eat cake" solution to disability.  And, no technological changes in manufacturing and in offices haven't helped. The technological changes have increased the cognitive demands of factory work leaving those with low IQs at a greater disadvantage.And, please, don't tell me that because infants can make iPhones do amazing things that anyone can work. That's just ridiculous.

     

Why Age Matters

     I keep seeing comments posted here saying, basically, that it's an outrage that Social Security pays disability benefits to people it knows can work just because they're over 50. This is based upon the fact that if a person is 50 or older, can no longer do work they've done in the past due to their medical condition and are limited to sedentary work, it may be possible to get Social Security disability benefits based upon the "grid regulations."
     The person or persons posting this miss some important points. To qualify for this treatment, you have to be unable to do any job you've done in the last 15 years and you must lack transferrable skills to sedentary work. But, it's still an outrage that Social Security pays disability benefits to people it knows can work? No, they really can't work. The Social Security Act requires the consideration of age, education and work experience in determining disability. Age has been given a prominent place in the consideration of disability because as people age they become less adaptable. When you're 25, making a transition to some entirely different type of work isn't so difficult. At age 50, it may be impossible. So, no, those people really can't work because they can't realistically make the transition to completely different lines of work. If this makes no sense to you, it's probably because you're younger. Wait a few years. If you're lucky, you'll get older and you'll have no difficulty understanding. There aren't any advances in medicine or rehabilitation or anything else that's likely to change this because it's hard-wired into the human aging process.

Why Would They Trust The Obama Administration On This?

     A press release:

Today, Ways and Means Social Security Subcommittee Chairman Sam Johnson (R-TX) introduced H.R. 1800, the Guiding Responsible and Improved Disability Decisions Act of 2015 (the GRIDD Act). The legislation would require the Social Security Administration (SSA) to update the medical and vocational regulatory guidelines for determining disability, which have not been updated since they went into effect in 1979.

Recently, the Social Security Administration’s Office of the Inspector General (OIG) issued a report highlighting one of the problems with these outdated rules for cases in Puerto Rico. The OIG found that these rules favor claimants who are unable to speak English, even though Spanish is one of the island’s official languages.
 Upon introduction, Chairman Johnson said:

"Hardworking American taxpayers expect Social Security to fairly, consistently and accurately decide who should receive disability benefits. That's why it makes no sense that Social Security uses rules from 1979 to decide if someone should receive benefits today! I've been calling on Social Security to update its rules, and the recent Inspector General report just further makes that case. This legislation sends a clear message to Social Security: It's time to update your rules—and now. This is what Americans want, need, and deserve."

House Ways and Means Committee Members co-sponsoring the legislation include Tom Reed (R-NY), Kenny Marchant (R-TX) and Diane Black (R-TN). Other original co-sponsors include Representative Mimi Walters (R-CA).

For more information, click here.

     Here is the entire relevant text of the bill:

As soon as possible after the date of the enactment of this Act, the Commissioner of Social Security shall prescribe rules and regulations that update the medical-vocational guidelines, as set forth in appendix 2 to subpart P of part 404 of title 20, Code of Federal Regulations, used in disability determinations, including full consideration of new employment opportunities made possible by advances in treatment, rehabilitation, and technology and full consideration of the effect of prevalent languages on education.

     If you're sure that passage of this bill would result in fewer people drawing Social Security disability benefits, you don't understand the situation. The number of unskilled jobs has declined dramatically over the last thirty years. Any honest updating of the grid regulations is almost certainly going to result in more disability claims being approved, not fewer. Don't believe me? Read back in this blog about the Occupational Information Development Advisory Panel (OIDAP). There was plenty of tension as Social Security tried to stage manage OIDAP so it could avoid paying more claimants. That didn't work so well. That controversy has gone underground as the responsibility for developing a new Occupational Information System (OIS) has shifted to the Department of Labor but it's going to burst into the open eventually. Pass this bill and you're opening Pandora's box a little sooner.
     This bill is evidence to me that the Subcommittee lacks a Republican Social Security disability policy wonk on its staff.

Nice Idea But It's Not Going To Work

     There's a bill pending before the House Social Security Subcommittee that would require that the Social Security Administration "develop online tools to help beneficiaries assess the impact of earnings on eligibility for and benefit amounts of state and Federal programs." 

     It's a nice idea but I have my doubts that anything developed will be helpful. The problem is that Social Security's work incentives are so incredibly complex that they won't fit easily into an online format. You don't just plug in your earnings for a month to determine the effect upon your benefits. There's far more involved than just how much you earn. Earn $2,000 in the first month you work and there's no effect upon your benefits. Keep working and earn $2,000 a month for twelve months and your benefits probably stop -- and note that I said probably, since there's the separate blind standard, there's the issue of whether it's self-employment which has different standards, there's Impairment Related Work Expenses (IRWE) and there's the question of whether you're performing a made-work or subsidized employment job. Keep working at that some pay rate for a time before stopping and what happens depends upon how long you were working before you stopped. There's no simple way of explaining it because it's quite complex. See the image above from the Subcommittee summary of the bill to get an idea of the complexity. 

     This isn't a partisan issue. I think that virtually everybody familiar with this subject would agree that we need a much simpler system of work incentives. I think that almost all would agree that even with a much simpler system few Social Security disability benefits recipients will return to work. They're too sick.
     The work incentives have gotten so complex because members of Congress over several decades have believed that there must be some way of returning lots of Social Security disability recipients to work. They haven't bothered to study the incentives that already existed. They just kept adding more. Additional incentives or tweaked incentives or better explanation of incentives -- none of it is going to work. The idea that large numbers of disability benefits recipients can ever be forced or enticed to return to work is a fallacy.