Social Security is a vast empire. As of March 12, 2018 the Social Security Administration was headless. It hasn’t had a confirmed director in five years, and now it doesn’t even have an acting chief. Social Security provides benefits to more than 60 million Americans and affects almost every family. The Social Security Administration’s acting commissioner, Nancy Berryhill, had no authority to act after mid-November 2017, because the agency is in violation of a federal law regarding vacant positions, according to a report to President Trump by the GAO.
Within this headless juggernaut, I am concerned with the relative placid back- waters of the disability program. The two major areas are:
- Social Security Disability Insurance — SSDI or Title 2
- Supplemental Security Insurance — SSI or Title 16
Each area has its own unique rules for eligibility but shares the identical rules for what constitutes disability. Disability is, “the inability to perform any substantial gainful activity because of a medically determinable condition which is expected to last for 12 months or result in death within 12 months.”
Equally important parts of this universe include:
- Disabled adult children
- Child disability
- Survivors disability benefits
Medical benefits attach to all the disability programs but, are not the same – Medicaid/ Medi-Cal for the SSI community, and Medicare for the Title 2 community. The Medi/Medi, a hybrid for a small cohort who receive less than an aggregate $910.17 per month and are disabled and are U.S. citizens. It is predicated upon a Federal contribution of about $750.00 and $150.00 from the State of California. The SSI community has a dollar-for-dollar reduction for any income, gifts or inheritance. In contrast, in the SSDI community maximum earners can receive $2,788.00 a month plus an additional $1,400 a month for a dependent under the age of 18.
If gravity is the weak force, denial is the strong force in the Social Security universe. Only about 20% of applications for disability benefits are allowed. The appeal cycle has strict rules and timelines. If one takes the long view and squints through the optics of cynicism, the cycle of slow processing and denial results in a winnowing out of less meritorious claims. People drop out. There are no indications whether they join the huddled masses along the Santa Ana River return to work, or move to Nevada.
For those with enough tenacity there are appeal rights. An administrative law judge [ALJ] will perform an independent review and reach a decision based upon the evidence: medical, legal and testimony. The cohort of judges like the cohort of attorneys, demonstrate a wide range of skill, temperament and compassion. In Southern California the allowance rate [reversal of earlier Agency determination] is generally 52% with representation. There are judicial outliers who grant in 2.7 out of 10 claims and others who grant 6.8 out of 10 cases. I will guess you know how I feel about the 2.7ers.
At the hearing step a primordial soup of regulations, rulings and case law provide guidance. The government frequently attempts to stack-the-deck by obtaining one-off forensic reports by physicians (who frequently report out of their area of medical practice) without a review of the medical records and shields them from cross examination. This has been in place for several decades. Social Security provides a block grant to the State of California to perform medical development. California then contracts with a “medical bulk provider” who hires doctors to examine and report on the health of an applicant. Thanks to the miracle of word processing, the whole process can be completed in 10 minutes – Henry Ford take your bow.
The disabled have the burden to demonstrate a medical condition. This places them at a distinct disadvantage if they are in the Kaiser network because assisting a patient by completing questioners, writing reports, answering inquires “is not a covered benefit” or “send your request to legal.” This institutional indifference is not as severe in HealthCare Partners, Molina or the County clinics.
The latest brainchild of Social Security is to allow the ALJs to issue an unarticulated decision…. Really! Until this reaches the Appellate Courts, the regulation now will allow the Judges to adopt an unqualified medical opinion without any analysis. It is not that it is too hard, it is not that the Supreme Court doesn’t exist [Daubert, Levin, Kohio Tires], it just that the Agency must be channeling first level claims adjusters. Imagine if a judge in the Superior Court wrote a decision in which he didn’t weigh or discuss the evidence “casue I don’t feel like it” or in the words of Dick Cheney, “trust me”. There is substantial room for improvement.
The rule change eliminates the presumption of correctness regarding the opinion of the treating physician. Under the new rules, a judge can adopt any medical opinion, no matter how unqualified, even without a review of the medical records! The judge does not have to weigh or explain why he adopted one medical opinion over another more qualified medical opinion. Think of this as the TRUST ME rule. It is unlikely that this new rule which is contrary to decades of published federal court opinions that require the judge to explain how he weighed the evidence will withstand the scrutiny of the District Court or Circuit Court of Appeals.
It will take close to two (2) years for this terrible rule change to reach the Appeals Courts because all claims must first rest and age at the Appeals Council.
A SPOTTERS GUIDE TO SOCIAL SECURITY DISABILITY
- Under age 65
- Off work for 12 months
- Have a medical condition -psyche or soma
- Treatment with a doctor
About the Author
Social Security Attorney Joshua W. Potter has one office in Pasadena California. He has limited his practice to Social Security Disability and Overpayment issues for the last 35 years. He is a graduate of University of La Verne College of Law, the University of London School of Oriental and African Studies and UCLA. He provides highly individualized care to each and every client.
He can be reached at 626-795-0681 or firstname.lastname@example.org.