Eli Baumwell Comment

Publication Date
March 8, 2013

I've been an attorney representative exclusively for Social Security claimants for two years. It goes without saying that the disability adjudication process is desperately in need of revision. The length of time that the process takes often leaves claimants in worse condition than when they applied. They may not be able to afford the specialists, or even basic care to manage and control their conditions. It's common knowledge that even purely physical claims usually wind up with a mental component due to the financial stress of being without income for so long. I would like to see the rules revised at the initial and reconsideration levels to give greater weight to a claimant's subjective complaints. I believe that the burden-shifting should go like this: if the claimant can demonstrate objective medical evidence of conditions that could reasonably be expected to cause the alleged limitations, then the burden should be on the government to prove that the conditions are not as limiting as alleged. This should take more than the causual, rote Review of Systems in medical reocrds, or a blatent misinterpretation of a claimant's Function Report. More broadly, I believe a greater restructuring is in order. I believe we spend too much money on reviews and not enough actively engaging with people who need help. I believe we should give people the benefit of the doubt, and work with claimants to get them back into the workforce. I would rather see people get benefits more quickly, before their conditions worsen. I would rather pay vocational experts to rehabilitate than assess, and I would rather pay physicians to treat than to perform consultative examinations. I would rather see examiners from state agencies categorize claimants in one of 6 categories than denying them outright: Disability Level 5: For claimants who, based on their age and condition, are very unlikely to recover. Claimants found disabled in this category will be presumed permanently disabled. Files may still be reviewed at random. Disability Level 4: For claimants who are unlikely to recovery. Claimants in this category are unlikely to regain the capacity for work. Anyone found disabled at this level will be subject to a 3-year review. After 3 reviews, the claimant must be either upgraded or down-graded. Disability Level 3: For claimants who have a clear, demonstrable disability, but a good prognosis. Claimants at this level will have their claims re-evaluated after 12 months. They must show continued treatment and compliance. After 3 consecutive years in this category claimants must either be upgraded or downgraded. If upgraded, they will be treated as if they will only be subject to 2 reviews at Level 4. Disability Level 2: For claimants who have clear, objectively demonstrable conditions, but who allege limitations more severe than expected. They must show regular treatment and medical compliance by a physician approved by the state (which may be their regular treating physician). They must also have, at least, an assessment by a vocational expert, and based on the circumstances, may be required to complete a work-hardening program, and demonstrate good faith attempts to find appropriate employment. Claims will be re-evaluated after 12 months, and the opinions of the state-approved physician and vocation expert will be considered. A claimant may only be classified in this category for one year, and then either elevated to a higher category or refused futher benefits. Disability Level 1: For claimants who allege disabling conditions but where there is not sufficient medical evidence, there is concern they are malingerers, or there a behavioral choice is matieral to the disability. Claimaints in this category may be eligible for benefits, but continued benefits are contingent on regular treatment with a 1) state-approved physician, who must take all reasonable steps to identify the cause of any alleged impairments, 2) a vocational expert who will work with the claimant in work-hardening, developing marketable skills, and applying for jobs, and 3) if necessary, counseling for behaviors that may contribue to a disabling condition. After 12 months the claim will be re-evaluated. Opinions regarding the capacity for work will be pulled from all required treatment programs. After 12 months the claim must either be elevated to a higher category or refused further benefits. Disability Level 0: Where there is sufficient medical evidence to conclude that there are no objective medical conditions, or that the limitations alleged bear no relation to objective medical findings, or where the limitations alleged still allow the capcity for substantial gainful activity. Claims at this point will be denied. It's acknowledged that many more people would get benefits under this regimine, but for people with good claims, they will not have to go through the prolonged administrative fight. This will save costs for claims that are going to get paid anyways. For people with questionable claims, they are given the opportunity to get quality medical treatment which may identify underlying conditions validating the limitations they allege. Or the medical treatment may help them overcome conditions that may continue to be limiting and progressive if left to their own devices. Others will be given the opportunity to work with a vocational specialist who will help them identify and procure work they can perform, or develop skills to procure work. This will mean rather than having questionable claimants' claims be decided, eventually, by the sympahty of an Administrative Law Judge, where a sympathetic claimant may then receive benefits for the rest of their lives, we focus on rehabbing, and getting them back into the workforce.