FCEs Are Still Invalid

     There's long been a desire to determine disability with "scientific" tests of functional ability. There are people who designed and administer such tests, usually referred to as Functional Capacity Evaluations or FCEs. In the real world, such testing is usually paid for by insurance companies who are trying to limit how much they pay for workers compensation benefits.  There have been those who want Social Security to use FCEs. You can guess what goal they're trying to achieve.
     The National Academies of Sciences, Engineering and Medicine recently did a study of these function assessments for Social Security. The report is basically an elaboration of what was already known by anyone who has taken a look at these tests -- they're unreliable. The biggest problem is what I'll call the marathon problem. These tests take at most a few hours. Thus, at most, they show what an individual can do over a relatively short period of time. However, work is something you do five days a week every week. Relying upon a short test is like saying that someone who can run 100 meters at a certain pace can run a marathon at the same pace. You can no more determine how fast a person can run a marathon from how fast they run 100 meters than you can determine how a person can work day in and day out from testing them for a few hours.

     This study was a waste of money. It only tells us what anyone who had looked at this kind of testing already knew. FCEs have, at best, highly limited validity and cannot be used as a shortcut for disability determination.

How Do Other Countries Handle Vocational Factors In Disability Determination?

     The most recent edition of the Social Security Bulletin, the Social Security Administration's scholarly journal, contains an article titled Vocational Factors in Disability Claim Assessment: A Comparative Survey of 11 Countries by David Raines and Tony Notaro. Basically, they find what you might expect -- significant differences among the countries. Here's a table from the piece.

Click on image to view full size. OECD is the Organization for Economic Cooperation and Development.

     Here's the authors' summary of how the U.S. compares to other countries:

...[W]e note the following significant differences between U.S. disability programs and those of most of the other sampled countries:

• U.S. programs do not extend eligibility to claimants with partial and/or temporary disabilities;
• Workers in many other countries receive sickness benefits for 1 year or longer before becoming eligible to claim long-term disability benefits;
• Although SSA assesses residual work capacity in the later stages of the five-step U.S. process, many of the other countries conduct their assessment in the initial determination phase; and
• Several other countries involve the claimant's employer in the assessment process.

We also note the following significant attributes that the U.S. disability programs share with those of other countries:

• The assessment is carried out in sequential steps (although agencies in other countries do not always spell out those steps quite as definitively as does SSA); and
• Medical experts are consulted to confirm diagnoses and evaluate disablement....

 To briefly summarize our findings on each VF [Vocational Factor], we observe that:

Age is not used in the disability determination processes of most of the countries we survey. The use of age as an explicit factor in determining whether certain claimants are disabled (as in step 5 of the U.S. sequential evaluation process) is rare. However, age is considered in determining eligibility for certain sickness and partial- or long-term disability programs. In general, advancing age is thought to increase the likelihood of disablement, and therefore increase the claimant's chance to receive a benefit. Sweden uses age in determining program eligibility and Australia uses age in deciding the frequency of reassessment for disability benefit eligibility.

Education is generally not directly considered during disability determination. The United States is the most notable exception, directly considering education in step 5 of its sequential evaluation process. Likewise, Denmark and the Netherlands consider education in determining the claimant's ability to perform other work in the general economy. In the same way, formal schooling or training may suggest a claimant's ability to undertake available vocational or rehabilitative options or employment opportunities.

Work experience is considered in the disability determination processes in each of the surveyed countries. Work experience is a central factor in assessing a claimant's transferable skills, which in turn constitute a central component of the RFC assessment that drives many disability assessment procedures.

Appropriations Bill Moves Forward With Many Directives For Social Security

     The House Appropriations Committee has reported out the bill that includes the appropriation for the Social Security Administration's operations. As expected, it includes a $300 million increase for Social Security. This is barely enough to keep up with inflation. The Senate bill is likely to be worse for Social Security.

     As usual, the Committee report on the bill includes a number of directives for the agency, which start at page 228 of the report. This year's bill includes a high number of these directives. Here's a list:

• Prepare report within 60 days on Administrative Law Judge selection;
• Include more information in Beneficiary Verification letters;
• Prepare report on negotiations with employee unions;
• Encourage proper consideration of headache disorders in determination of disability;
• Prepare update for Committee on agency's information technology modernization;
• Brief Committee on mailing paper statements;
• Prepare report on utilization of Social Security programs by persons suffering from muscular dystrophy;
• Prepare report on occupational information system project;
• Prepare proper research designs for all pilot projects and prepare a report on all such pilots;
• Prepare report within 180 days on improving Disability Determination Services process, including addressing the role of the reconsideration stage;
• Stop the proposal to charge fees for replacement Social Security cards;
• Stop pursuing the plan to consider social media postings in determining disability;
• Strongly urges agency to not proceed with plan for mandatory video hearings;
• Provide report within 90 days on strengthening vocational expert program;
• Strongly urges agency to not go forward with proposed regulations that would eliminate inability to communicate in English as factor in determining disability.

     One thing that didn't make this long list is a directive to strongly consider increasing the cap on fees that attorneys and others can charge for representing Social Security claimants.

The "You Were In The Neighhborhood Where A Crime Was Committed So You Must Be Guilty" Standard

     I had heard that there were allegations of Social Security disability fraud in Puerto Rico. Until recently I was under the impression that this just concerned a small number of claimants. There's now a class action lawsuit that's in the process of being filed against Social Security concerning these cases that tells us that this is huge. Here's an excerpt from the class action complaint (note that this link expires on May 20) that will be filed once a motion to consolidate is granted:

... Starting around 2013, SSA invoked §405(u) to reconsider plaintiffs’ final favorable disability determinations. The impetus was the discovery of a fraud scheme in Puerto Rico involving non-attorney representative Samuel Torres Crespo. Torres Crespo allegedly worked with four doctors—José Hernández González, Wildo Vargas, Rafael Miguez Balseiro, and Erica Rivera Castro (together, the “implicated doctors”)—to submit fraudulent medical evidence in support of some applications for Title II benefits. After a lengthy investigation that started in 2009, the government indicted Torres Crespo and the implicated doctors in 2013. The indictments charged the individuals with making false statements or representations to SSA. Ultimately, Torres Crespo, Hernández González, and Vargas pled guilty to making (or participating in a conspiracy to make) false or misleading statements to SSA. Miguez Balseiro and Rivera Castro each pled guilty to a misdemeanor count of inadequate recordkeeping; their charges for making false statements or representations to SSA were dismissed with prejudice.

After the indictments were filed, SSA initiated redetermination proceedings for nearly 7,000 disability beneficiaries, including plaintiffs, whose files included evidence from Torres Crespo and/or one or more of the implicated doctors.

As a result of these redetermination proceedings, plaintiffs and approximately 1,000-1,500 other beneficiaries in Puerto Rico lost their disability benefits. ...

With respect to members of the Exclusion Class, SSA excluded all medical evidence associated with Torres Crespo or the implicated doctors without permitting the affected
beneficiaries any opportunity to dispute SSA’s allegations that the evidence was tainted by fraud.

With respect to members of the Non-Exclusion Class, SSA initiated the redetermination process based on a preliminary suspicion that evidence submitted by Torres Crespo and/or one of the implicated doctors was fraudulent. Later, however, SSA made a formal finding that there was no reason to believe that fraud was involved in the beneficiaries’ applications. ...

     Note the allegation that some of the claimants were caught up in this not because fraudulent evidence was submitted in their cases but merely because they had been represented by someone who submitted fraudulent evidence in other cases. Social Security acknowledged that there was no reason to believe there was fraud in the case of these individuals but still redetermined their cases and cut off their benefits. It's a standard of "you were in the neighborhood where a crime was committed so you must be guilty."

Yeah, They Really Are Sick

     The most recent issue of the Social Security Bulletin, the agency's scholarly journal, contains an article by Jeffrey Hemmeter and Paul S. Davies on Infant Mortality Among Supplemental Security Income Applicants. The bottom line is that child SSI applicants die at a fairly high rate compared to other children.

Click on image to view full size

You Have To Be Disabled But Not Too Disabled

     From the National Law Review:

An employee who applies for and receives Social Security disability benefits may be judicially estopped from bringing a disability discrimination claim under the Americans with Disabilities Act (the “ADA”) according to a recent Louisiana District Court case. Tanner v. BD LaPlace, LLC. ...

The Court held that Tanner was precluded from bringing an ADA claim because of his sworn testimony provided to the SSA that he was “totally disabled” as of February 10, 2016. Relying on the Supreme Court’s decision in Cleveland v. Policy Mgt. Sys. Corp., 526 US 795, 806 (1999), the court here determined that it was Tanner’s responsibility to explain the contradiction, which he failed to do. ...

Social Security's List Of Top 10 Baby Names For 2019

Rank	Male name	Female name
1	Liam	Emma
2	Noah	Olivia
3	William	Ava
4	James	Isabella
5	Oliver	Sophia
6	Benjamin	Charlotte
7	Elijah	Mia
8	Lucas	Amelia
9	Mason	Harper
10	Logan	Evelyn

From Social Security Administration

Delay In Saul Confirmation?

     There was a Senate Finance Committee hearing yesterday on the nomination of David Black to become Deputy Commissioner of Social Security. The opening statement of Senator Ron Wyden, the ranking Democrat on the Committee, contained this interesting language:

... This morning, while we consider this nomination for SSA deputy commissioner, I also want to remind the committee that Social Security has not had a confirmed commissioner in place since February 2013. Bottom line, that’s far too long for the top position to go unfilled. Just like any government agency or any private business, SSA runs best when it has strong leadership with a vision for how to improve. In my judgement, the Senate should not confirm a deputy commissioner before confirming the commissioner.

Andrew Saul’s nomination to serve as commissioner has been approved by this committee twice. I hope he’s able to get on the job soon. I also note that, in terms of going forward on the Senate floor, it would be appropriate to take up the nomination of the commissioner before taking up the nomination of the deputy commissioner. ...

     Obviously, Wyden wants Andrew Saul confirmed as Commissioner and he's worried that there will be a delay in that confirmation even though he's not expecting delay in Black's confirmation as Deputy Commissioner. I wonder what's going on. Democrats can't hold up nominations in the Senate very long these days. Republicans changed the rules.