House Oversight and Government Reform Subcommittee on Energy Policy, Health Care, and Entitlements Hearing
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I. FROM THE BEGINNING n1: AN INTRODUCTION
The population of
A common explanation for the recent increase in
The ultimate question in an adult
Between 2007 and 2010, the number of
Working or not, disabled or not, people are increasingly seeing
These problems are not merely academic. In fiscal year 2011, the
These are intriguing arguments, worthy of further consideration. They have just one fundamental flaw: the
That is why this Article is different. It does not call for a complete restructuring of the
II. "WILL YOU STILL NEED ME, WILL YOU STILL FEED ME, WHEN I'M SIXTY-FOUR?" n29: REALIGNING THE AGE CATEGORIES IN THE MEDICAL-VOCATIONAL GUIDELINES TO MATCH REALITY
In a
Things have changed, however, in the thirty-four years since the implementation of the medical-vocational guidelines. One change has been that the full retirement age for
One thing that has not changed, however, is the age categories of the medical-vocational guidelines despite the fact Americans live longer, work longer, and collect
The age categories used in the medical-vocational guidelines are a construct of the
III. "
The age categories of the medical-vocational guidelines are not the only factor that is outdated. An individual's ability to communicate in English is included in the medical-vocational guidelines as a vocational factor. n45 "Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language." n46 Accordingly, the claimant's ability to communicate in English is considered when determining what work, if any, he or she can do. n47 For example, an individual who knows enough English to communicate as a hotel maid may not be able to communicate in English for purposes of other jobs. n48 As stated in the
While illiteracy or the inability to communicate in English may significantly limit an individual's vocational scope, the primary work functions in the bulk of the unskilled work relate to working with things (rather than data or people) and in these work functions at the unskilled level, literacy and ability to communicate in English has the least significance. Similarly the lack of relevant work experience would have little significance since the bulk of unskilled jobs require no qualifying work experience. Thus, the functional capability for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals age 18-44 even if they are illiterate or unable to communicate in English. n49
What is interesting is that the
But is the issue of English language ability as relevant in contemporary America as when the medical-vocational guidelines were introduced? Just as people are living longer and retiring later, the demographics of
While the age categories used in the medical-vocational guidelines are not mentioned in the Act, English language ability is specifically addressed in two different parts of the Act. The first reference, found at 42 U.S.C. [Sec.] 423(f), relates to terminating Title II disability benefits. n60 The "lack of facility with the English language" is a factor the Agency must consider along with the physical, mental, and educational limitations of a claimant when terminating his or her disability benefits. n61 The second reference, found at 42 U.S.C. [Sec.] 1383(c)(1)(A), relates to granting Title XVI disability benefits. That provision of the Act, just as with the Title II provision, states the Agency will take into account a claimant's "physical, mental, educational, or linguistic limitation of such individual (including any lack of facility with the English language) in determining" the award of disability benefits. n62 Because these references to English language competency are in the actual Social Security Act, legislation would be required to remove them. The purpose of the change, as with changing the age categories of the medical-vocational guidelines, is not to make it more or less likely that a claimant receive disability benefits, but rather to make the factors considered in the disability adjudication process reflect the America of today and how it has changed since 1978.
As a pragmatic matter, the inability to speak or understand English while trying to find a job could certainly make it more difficult. By the same token, having a felony conviction, being unattractive, or living in
Furthermore, a "'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." n67 The inability to communicate in English would not qualify under these definitions as a "disability" unless the individual had a mental or physical impairment that prevented communication in any language, and not just English. Twelve years ago the argument was raised to abolish the inability to communicate in English as a factor in awarding disability benefits. n68 Since then, the number of non-English speaking workers in
IV. "EVERY BREATH YOU TAKE, EVERY MOVE YOU MAKE, EVERY BOND YOU BREAK, EVERY STEP YOU TAKE, I'LL BE WATCHING YOU" n69: THE FAILURE OF THE SOCIAL SECURITY ADMINISTRATION TO DO MANDATORY CONTINUING DISABILITY REVIEWS
The Act provides a mechanism to ensure that the approximately fifteen million current disability benefit recipients continue to be eligible to receive their benefits. n70 A Continuing Disability Review is "a review of continued eligibility for disability benefits previously awarded" by the
Unfortunately, the Agency does not conduct Continuing Disability Reviews as required by the Act, despite, for example, the proven effectiveness of Childhood Continuing Disability compared with 163,768 in fiscal year 2002. n77 In a 2006 audit conducted by the
Five years later, the Agency did not complete 78.5% of the required Childhood Continuing Disability Reviews as required by the Act--two times worse than in 2006. n81 The failure to conduct these Childhood Continuing Disability Reviews resulted in
The "budgetary constraints" excuse of the Agency is particularly interesting. Since fiscal year 2009, the Agency has requested and received from
Given the inverse results, "budgetary constraints" does not seem to be the real reason for the Agency's failure to abide by the Act and conduct the required Continuing Disability Reviews. If the Agency is not doing Continuing Disability Reviews due to "budgetary constraints," then the sole remaining reason is its emphasis on "other priority workloads." n90 According to the Commissioner of the
The fact the
Unlike the other four suggestions in this Article to restore the integrity to the
V. "TELL ME EVERYTHING" n98: INTENTIONALLY CONCEALING ADVERSE MEDICAL AND VOCATIONAL INFORMATION AND FRAUD
The
Companies that specialize in representing
The purpose of a Social Security Act, however, is to provide assistance for those who cannot work due to a medically determinable impairment. n104 Just as with any other welfare program, the goal is to determine eligibility for benefits. n105 The only way to do this is to consider all of the medical and vocational information, not just the favorable information. The goal of the
The Commissioner of the
The Social Security Act also allows for the Commissioner to suspend or disqualify a claimant representative who refuses to comply with the Agency's rules and regulations. n114 The Code of Federal Regulations, mirroring the Act, forbids making or participating in the making of false or misleading statements, assertions, or representations regarding a material fact or law, with claimant representatives who do so liable to suspension or disqualification from serving as a representative. n115 Additionally, both the
Unfortunately, the Agency has a very poor record of sanctioning representative misconduct. n120 On average, each year 5.56 of the estimated total 31,000 attorney and non-attorney representatives-- or .018%--are suspended or disqualified by the Agency. n121 "The average number of attorneys (as opposed to non-attorneys) suspended or disqualified each year by the Agency is 2.4, or .009% of the estimated total number of attorney representatives." n122 This percentage of suspended or disqualified attorneys is sixteen times less than the number of attorneys disbarred in an average year in either
Accordingly, the commissioner of the
Just as with actually performing the Continuing Disability Reviews, however, there is almost no likelihood the Agency will either enforce the requirement that all evidence be submitted to it or authorize its administrative law judges to sanction representatives' failure to do so, as neither would be perceived as means of reducing the backlog of disability hearings. As the requirement to submit adverse evidence is never enforced, there is no need for claimants' representatives to comply with the requirement. As the available evidence demonstrates that
VI. "WELL I'VE BEEN LOOKIN' REAL HARD, AND I'M TRYIN' TO FIND A JOB, BUT IT JUST KEEPS GETTIN' TOUGHER EVERY DAY" n131:
THE INCONSISTENCY OF RECEIVING STATE UNEMPLOYMENT INSURANCE COMPENSATION WHILE SEEKING SOCIAL SECURITY DISABILITY BENEFITS
When a person applies for
Receipt of unemployment compensation and any effect on a contemporaneous application for
How do you deal with a claimant who is applying for disability but is receiving unemployment? It is SSA's position that individuals need not choose between applying for unemployment insurance and
The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b). Therefore, when evaluating this issue, look at the underlying circumstances rather than the mere application for and receipt of benefits. Has the claimant looked for jobs with physical demands beyond his alleged limitations, during the alleged period of disability? Has the claimant performed various mental and physical activities in order to continue receiving unemployment benefits, such as going on interviews, filling out applications, etc.? These activities may also be relevant factors when evaluating the credibility of the claimant's allegations. 20 CFR 404.1529 and 416.929, and SSR 96-7p. n138
While there is an inherent logical inconsistency of the two positions--saying to one government agency "I can work so I should receive money" while at the same time saying to another government agency "I cannot work so I should receive money"--from a legal standpoint, there is no bar to applying for both for the same time. The problem, from a legal perspective, arises upon the receipt of one or the other benefits. Known in the common law as the Doctrine of the Election of Remedies, it is "[a] claimant's act of choosing between two or more concurrent but inconsistent remedies based on a single set of facts." n139
The beginning of the "Adjudication Tip" is therefore completely accurate; there is no inconsistency in applying for both state unemployment compensation and
As this policy is merely in the "Adjudication Tip," all that would be needed to preclude collecting both state unemployment compensation and
VII. "THIS IS THE END" n142: CONCLUSION
What is the likelihood of the
As long as the Agency's goal is merely to process cases as quickly as possible, preferably awarding benefits so they do not come back as new applications or appeals, the backlog of disability cases will only continue to grow. n143 During the "height of the jobs crisis," 117,000 Americans received both
In the long run, however, the only way to actually reduce the backlog is to have a program that truly determines the issues of disability and ability to work on the merits, and does not merely try to process cases as quickly as possible so that they go away. A
"Ultimately, the taxpaying, voting public will only support need-based welfare programs if they believe that those actually in need of aid are the ones actually receiving the aid." n147 The expectation of the taxpayers who fund the disability programs is that the decision to grant benefits will be correct, not just fast. Each disability case which is improperly paid has huge monetary consequences for the taxpayer: If merely 10% of all
Beyond the monetary cost to the taxpayer, the improper payment of
n* Judge
n1. EMERSON, LAKE & PALMER, From the Beginning, on TRILOGY (Atlantic Records 1972).
n2.
n3. In the year 2000, 1,364,323 disability applications were filed with the Agency. OFFICE OF RESEARCH, EVALUATION, & STATISTICS, SOC.
n4. See, e.g., Disability Payments: The Elephant in the Waiting-room, ECONOMIST,
n5. Merline, 5.4 Million Join Disability, supra note 4.
n6. Id.
n7. Id.
n8. See, e.g., Disability Payments, supra note 4, at 36; Paletta, Insolvency Looms, supra note 4, at A1; Rein, supra note 4, at B4; Mehraba, supra note 4; Grantham, supra note 4; Merline, 5.4 Million Join Disability, supra note 4. Since the ultimate question in a
<p>n9. Social Security Act, ch. 531, 49 Stat. 620 (1935) (codified as amended at 42 U.S.C. [Subsec.] 301-1397mm (2006)).
n10. 42 U.S.C. [Sec.] 423(d)(1)(A).
n11. Heckler v. Campbell,
n12. Disability Payments, supra note 4, at 36;
n13.
n14. Faler, supra note 4.
n15.
n16.
n17. Wolfe & Glendening, supra note 12, at 22.
n18. Id. at 16.
n19.
n20. Securing the Future of the Social Security Disability Insurance Program: Hearing Before the H. Comm. on Ways & Means, 112th Cong. 1 (2012) [hereinafter SSDI Program] (statement of
n21. Faler, supra note 4.
n22. Pierce, supra note 16, at 39 (recommending, inter alia, eliminating non-exertional impairments, such as mental illnesses, from being a basis for disability benefits to eliminating hearings before
n23. See generally Pierce, supra note 16.
n24. Where's the Budget? How the Dems Plan to Win, UNION LEADER (
n25.
n26. See 20 C.F.R. [Sec.] 404.1720(b)(4) (2012).
n27.
n28. Merline, 5.4 Million Join Disability, supra note 4.
n29. THE BEATLES, When I'm Sixty-Four, on SGT. PEPPER'S LONELY HEARTS CLUB BAND (Parlophone Records 1967).
n30. Heckler v. Campbell,
n31. Id. at 461.
n32. Id.; see also SSDI Program, supra note 20, at 9-10.
n33. Heckler, 461 U.S. at 461-62.
n34. 20 C.F.R. pt. 404, subpt. P, app. 2 [Subsec.] 201(f)-(h), 203(c) (2012).
n35. Retirement Age Calculator, SOC. SECURITY ADMIN., http://www.ssa.gov/pubs/age increase.htm (last updated
n36. Id.
n37. Life Expectancy -
n38. Id.
n39.
n40.
n41. Compare 20 C.F.R. pt. 404, subpt. P, app. 2 [Sec.] 200(a) (detailing the medical-vocational guidelines), with Social Security Act, ch. 531, 49 Stat. 620 (1935) (codified as amended at 42 U.S.C. [Subsec.] 301-1397mm (2006)) (making no mention of medical-vocational guidelines as part of the Social Security Act).
n42. 42 U.S.C. [Sec.] 902(a)(5).
n43. Hon.
n44. THE RACONTEURS, You Don't Understand Me, on CONSOLERS OF THE LONELY (Third Man Records 2005).
n45. 20 C.F.R. [Subsec.] 404.1564(b)(5), 416.964(b)(5) (2012); see
n46. 20 C.F.R. [Subsec.] 404.1564(b)(5), 416.964(b)(5); see Pickering, supra note 45, at 609.
n47. 20 C.F.R. [Subsec.] 404.1564(b)(5), 416.964(b)(5).
n48. Pickering, supra note 45, at 609 (citing Minuto v. Sec'y of Health & Human Servs., 525 F. Supp. 261, 265-66 (S.D.N.Y. 1981)).
n49. 20 C.F.R. pt. 404 app. 2, [Sec.] 201(h)(4)(i).
n50. See, e.g., GN 00203.011 Special Interviewing Situations: Limited English Proficiency (LEP) or Language Assistance Required, SOC. SECURITY ADMIN., https://secure.ssa.gov/apps10/ poms.nsf/lnx/0200203011 (last visited
n51. Pickering, supra note 45, at 609.
n52. In the medical-vocational guidelines, sedentary work is defined as that work generally requiring lifting less than ten pounds and requires two hours or less of standing or walking and six hours or more of sitting. See 20 C.F.R. [Sec.] 404.1567.
n53. See 20 C.F.R. pt. 404, subpt. P, app. 2 tbl.1.
n54. In the medical-vocational guidelines, light work is defined as that work generally requiring lifting up to twenty pounds occasionally and up to ten pounds frequently and requires six hours or more of standing or walking and two hours or less of sitting. See 20 C.F.R. [Sec.] 404.1567.
n55. See 20 C.F.R. pt. 404, subpt. P, app. 2 tbl.2.
n56. Press Release,
n57. Id.; see also
n58.
n59.
n60. 42 U.S.C. [Sec.] 423(f) (2006). For a discussion of the types of
n61. 42 U.S.C. [Sec.] 423(f).
n62. Id. [Sec.] 1383(c)(1)(A).
n63.
n64. Pickering, supra note 45, at 609.
n65. 42 U.S.C. [Sec.] 423(d)(1)(A).
n66. Id. [Sec.] 423(d)(2)(A).
n67. Id. [Sec.] 423(d)(3).
n68. Meisburg, supra note 43, at 42, 44.
n69. THE POLICE, Every Breath You Take, on SYNCHRONICITY (A & M Records 1983).
n70. See SSDI Program, supra note 20, at 1.
n71.
n72. Statement of
n73. 42 U.S.C. [Sec.] 1382c(a)(3)(H)(ii) (2006).
n74. OFFICE OF INSPECTOR GEN., SOC.
n75. Hearing Before the S. Fin. Comm., 112th Cong. 11 (2012) [hereinafter Hearing Before Fin. Comm.] (statement of
n76. TITLE II BENEFICIARIES AUDIT, supra note 74, at 7 & n.25.
n77. OFFICE OF INSPECTOR GEN., SOC.
n78. Id. at 2.
n79. Id.
n80. Id.
n81. Id. at 3 tbl.1. Of the 78.5% of the childhood continuing disability reviews not done in accordance with the Act, 93% were never done and 7% were late. Id. at 4.
n82. Id. at 3.
n83. Id. at 8.
n84. See 42 U.S.C. [Sec.] 1382c(a)(3)(H)(ii) (2006); CHILDHOOD CONTINUING DISABILITY AUDIT, supra note 77, at 8.
n85. CHILDHOOD CONTINUING DISABILITY AUDIT, supra note 77, at 6 & tbl.4.
n86. Id. at 6 & tbl.4, 7 tbl.5.
n87. Id. at 7 tbl.5. In fiscal year 2010, the Agency conducted 16,677 Childhood Disability Reviews. In fiscal year 2003, it had conducted 127,444. Id.
n88. See Hearing Before Fin. Comm., supra note 75, at 12 tbl.1.
n89. SEMIANNUAL REPORT, supra note 71, at 22.
n90. CHILDHOOD CONTINUING DISABILITY AUDIT, supra note 77, at 5.
n91. Hearing Before Fin. Comm., supra note 75, at 3; SSDI Program, supra note 20, at 18; see, e.g.,
n92. Hearing Before Fin. Comm., supra note 75, at 5; Rein, supra note 4, at B4.
n93. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-667T, SOCIAL SECURITY DISABILITY: MANAGEMENT OF DISABILITY CLAIMS WORKLOAD WILL REQUIRE COMPREHENSIVE PLANNING 4 (2010) (statement of
n94. See, e.g., Funding Social Security's Administrative Costs: Will the Budget Meet the Mission: Hearing Before the S. Fin. Comm., 110th Cong. 3 (2007) (statement of
n95. Paletta, Disability-Claim Judge, supra note 91. "Critics blame the
n96. Beginning
n97. As opposed to a private insurer, because someone else pays the bills (e.g., the taxpayer), there is no incentive for the
n98. CHEAP TRICK, Tell Me Everything, on WOKE UP WITH A MONSTER (
n99.
n100. DI 2250.006 Requesting Evidence - General, SOC. SECURITY ADMIN., https://secure.ssa.gov/poms.nsf/lnx/0422505006 (last visited
n101. Rains, supra note 99, at 364.
n102. Paletta, Insolvency Looms, supra note 4, at A16. The
n103. Paletta & Searcey, supra note 25, at A16. In 2011, one company that supposedly withholds medical information from the
n104. Heckler v. Campbell,
n105. See generally Swank, Welfare, supra note 15.
n106. See id. at 639.
n107. Rains, supra note 99.
n108. Id. at 390-91.
n109. Social Security Protection Act of 2004, Pub. L. No. 108-203, 118 Stat. 493, 493-541 (2004) (codified as amended in scattered sections of 26 & 42 U.S.C.).
n110. Rains, supra note 99, at 391-94.
n111. 42 U.S.C. [Sec.] 408(a) (2006); see also U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-02-849, SUPPLEMENTAL SECURITY INCOME: PROGRESS MADE IN DETECTING AND RECOVERING OVERPAYMENTS, BUT MANAGEMENT ATTENTION SHOULD CONTINUE 13 (2002), available at http://www.gao.gov/assets/240/235391.pdf.
n112. Rains, supra note 99, at 377.
n113. Id. at 378.
n114. 42 U.S.C. [Sec.] 406(a)(1).
n115. 20 C.F.R. [Subsec.] 404.1740(c)(3), 404.1745, 416.1540(c)(3), 416.1545 (2012).
n116. See OFFICE OF DISABILITY ADJUDICATION & REVIEW, SOC. SECURITY ADMIN., HALLEX: HEARINGS, APPEALS AND LITIGATION LAW MANUAL [Sec.] I-
n117. OFFICE OF DISABILITY ADJUDICATION & REVIEW, SOC.
n118. Id. [Sec.]
n119. Id. [Sec.]
n120. Swank, Conditioning and Colluding, supra note 19, at 519;
n121. OFFICE OF THE INSPECTOR GEN., SOC.
n122. Swank, Condoning and Colluding, supra note 19, at 520.
n123. See, e.g., THE ATTORNEY GRIEVANCE COMM'N OF MD., 33RD ANNUAL REPORT:
n124.
n125. Of those attorneys suspended or disqualified by the
n126. See 42 U.S.C. [Sec.] 902(a)(5) (2006).
n127. 19 C.F.R. [Sec.] 210.4(d) (2012).
n128. See, e.g., 16 C.F.R. [Sec.] 3.42(d) (2012); 29 C.F.R. [Sec.] 18.36(b) (2012).
n129. See 5 U.S.C. [Sec.] 3105 (2006).
n130. Swank, Condoning and Colluding, supra note 19, at 520 & n.77; Swank, Welfare, supra note 15, at 638-41.
n131.
n132. F. Scott Fitzgerald Biography, BIOGRAPHYBASE.COM, http://www.biographybase.com/ biography/Fitzgerald_F_Scott.html (last visited
n133.
n134. 42 U.S.C. [Sec.] 423(d)(1)(A), (d)(2)(A) (2006).
n135. DI 25501.001 Onset of Disability and Blindness, SOC. SECURITY ADMIN., https://secure.ssa.gov/poms.NSF/0/d1e09a50c224cb678525754c0006ac5b (last visited
n136. ALA. CODE [Sec.] 25-4-77(a)(3) (2007);
n137. ALA. CODE [Sec.] 25-4-77(a)(3); ARK. CODE ANN. [Sec.] 11-10-507(3)(A); CONN.
n138.
n139. BLACK'S LAW DICTIONARY 558 (8th ed. 2004).
n140.
n141. See 42 U.S.C. [Sec.] 902(a)(5) (2006).
n142. THE DOORS, The End, on THE DOORS (
n143. Paletta, Disability-Claim Judge, supra note 91, at A14.
n144.
n145. Beginning
n146.
n147. Swank, Welfare, supra note 15, at 639-40.
n148. See SSDI Program, supra note 20, at 1.
n149. Merline, 5.4 Million Join Disability, supra note 4; Merline, Labor Force Shrinks, supra note 4.
n150. Merline, 5.4 Million Join Disability, supra note 4.
n151. Id.
n152. Swank, Welfare, supra note 15, at 638; see Grantham, supra note 4.
n153. Swank, Welfare, supra note 15, at 639.
n154. Id.
n155. Paletta, Insolvency Looms, supra note 4, at A16.
n156. Faler, supra note 4.
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