I know there is a lot of misinformation floating around about the current state of the Social Security Administration ("SSA"). Are changes needed at SSA - Yes. Are the problems tantamount to needing a chainsaw to make these changes? No. I would say that surgical precision is a better way to alter the SSA.
I wanted to provide you with SSA's "Press Release" section from their website. As you will see, SSA has released a barrage of press releases over the last three weeks that address some of the changes they are making: https://www.ssa.gov/news/press/releases/. Reading these will help to bring you up to speed.
However, I wanted to make something clear. While the Social Security Administration is far from perfect, the most inefficient and corrupt part of the Social Security Disability application process has nothing to do with the Federal employees, the main problems stem from the State.
You likely do not realize this, but SSA does not perform the medical workup on the Social Security Disability Insurance ("SSDI") or Supplemental Security Income ("SSI") claims at the initial application or reconsideration levels. Once SSA completes the biographical intake of the application, or the initial appeal, the claim gets sent to the Disability Determination Service ("DDS") branch of the Department of Social Services ("DSS") of each State. This, my friends, is what has crippled SSA.
The Federal government has a contract with each State to develop the medical evidence in SSDI/SSI claims. I only handle cases in California, but most DDS branches in California are excessively behind. In fact, most of our local DDS offices are not even assigning analysts at the reconsideration level for 11 to 12 months. After an analyst gets assigned, it will take the analyst 3 to 4 months to develop the case. We know this because there is a form called the "Authorization to Disclose Information to SSA" form, aka the 827 form. DDS is having to call us on almost every case at the reconsideration level and request a new 827, as these forms expire after 12 months. The DDS offices have had to come clean to us about the dire backlog situation because they routinely need a new 827 form. The DDS employees sheepishly admit that my clients' claims have been sitting untouched at their offices for close to a year.
I have no insight as to why DDS has fallen completely apart, but the reason it is taking your cases so long to get a decision at the initial application or reconsideration levels falls on the shoulders of the State employees, not the Federal employees.
Now let me address the State corruption issue...
SSA is being robbed blind by DDS. SSA is expecting DDS to perform the medical development of the cases. What SSA doesn't realize is that DDS is taking Federal money and not following the guidelines that SSA has set up for them. DDS is obtaining medical records from treating doctors. I will give them that. However, most DDS analysts are routinely sending the claimants to sub par medical or mental evaluations in order to manufacture a basis to deny the claimant. These are known as consultative examinations ("CEs").
The Problem With Consultative Examinations
available” OR the evidence is “insufficient” to determine whether a claimant has a disabling
impairment. The reality is the majority of claimants are being sent to the CEs regardless of
whether the file has sufficient evidence in it. DDS is essentially purchasing negative
opinions in the majority of cases, as these evaluations are neither thorough or objective. Below are 5 ways that DDS is not following SSA's mandates when it comes to CEs.
“If your medical sources cannot or will not give us sufficient medical evidence about
your impairment for us to determine whether you are disabled or blind, we may ask you
to have one or more physical or mental examinations or tests. We will pay for these
examinations. However, we will not pay for any medical examination arranged by you or
your representative without our advance approval. If we arrange for the examination or
test, we will give you reasonable notice of the date, time, and place the examination or
test will be given, and the name of the person or facility who will do it. We will also give
the examiner any necessary background information about your condition. 20 C.F.R. §§
404.1517, 416.917.”
The reality: DDS is treating every claim as if there is not “sufficient” evidence in the file. I
am calling DDS on the cases that are stacked with evidence and demanding to know why a CE is
being scheduled. I am being told that the DDS reviewing doctor (called a medical consultant) does not feel there is sufficient evidence in the file and that a CE is being ordered to develop the case. IF, the claimant doesn’t attend, SSA is denied for “noncompliance.” Every evaluation that is scheduled costs the Federal government money.
2. Consultative examiners are not being provided any of the claimants’ evidence in most
cases:
CEs are guided by a resource called a “Green Book.” CEs used to be given about 50 pages of
medical records, selected by DDS analyst, so the CE would have objective findings available
before examining a claimant.
The reality: DDS is no longer sending any evidence to the CE for context. Instead, the CE
report is based on a minimal examination that would not be able to determine disability in
most instances. The physical examinations are akin to what children used to undergo to have
clearance to attend physical education class…reflex check , toe-touch check, old-fashioned
grip strength test…etc. The mental evaluations use a mini mental status examination (“MMSE”)
that really only test if a claimant is delusional. Questions vary, but common questions are:
- Who is the President?
- Name Your State Capital.
- Spell “world” backwards.
- What is the similarity b/t an apple and an orange?
- What would you do if you smelled a fire in a movie theater?
- What would you do if you found an envelope with a stamp on it?
How can a consultative examiner determine whether a patient is disabled if they are not reviewing evidence like MRIs, hospitalizations, NCS/EMGs, blood work, echocardiograms, colonoscopies, and CT Scans? They can't. The answer is that simple.
3. SSA dictates that the preferred consultative examiner for an evaluation is the
claimant’s own treating doctor:
This language is taken DIRECTLY from SSA’s Greenbook
From SSA’s Greenbook: Consultative Examinations: A Guide for Health Professionals
Part III - Consultative Examination Guidelines
“If the evidence provided by the claimant's own medical sources is inadequate to determine
if he or she is disabled, additional medical information may be sought by recontacting the
treating source for additional information or clarification, or by arranging for a CE.
The treating source is the preferred source of purchased examinations when the treating
source is qualified, equipped and willing to perform the additional examination or tests for
the fee schedule payment and generally furnishes complete and timely reports."
The reality: DDS has never reached out to a claimant’s treating doctor for a CE report that I
have ever seen in my 21 years of practice. They always use one of their vendors.
4. CEs evaluations are not complying with the time mandates:
SSA actually issues the length of time each evaluation should last:
Ҥ 404.1519n; 416.919n. Informing the medical source of examination scheduling, report
content, and signature requirements.
The medical sources who perform consultative examinations will have a good understanding
of our disability programs and their evidentiary requirements. They will be made fully aware of
their responsibilities and obligations regarding confidentiality as described in § 401.105(e). We
will fully inform medical sources who perform consultative examinations at the time we first
contact them, and at subsequent appropriate intervals, of the following obligations:
(a) Scheduling. In scheduling full consultative examinations, sufficient time should be allowed
to permit the medical source to take a case history and perform the examination, including any
needed tests. The following minimum scheduling intervals ( i.e. , time set aside for the
individual, not the actual duration of the consultative examination) should be used.
(1) Comprehensive general medical examination—at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination—at least 20 minutes;
(3) Comprehensive psychiatric examination—at least 40 minutes;
(4) Psychological examination—at least 60 minutes (Additional time may be required
depending on types of psychological tests administered); and
(5) All others—at least 30 minutes, or in accordance with accepted medical practices.”
The reality: I am having my clients time the evaluations. The majority of the evaluations last under 15 minutes.
5. CEs are being scheduled even when the claimant meets a Bluebook listing:
SSA uses a 5-step sequential process to determine whether a claimant is disabled. Step 3 is,
“does the claimant meet a Bluebook listing?” If the answer is “yes” the claimant should be
awarded benefits. SSA is not supposed to complete a Step 4 or Step 5 assessment IF the
Claimant Wins at Step 3. Step 4 is, “can the claimant perform his past work?” Step 5 is, “can the
claimant perform other work in the national economy?”
The reality: Even when there is evidence in the file that concretely shows the claimant is
meeting a Bluebook listing, DDS is sending the claimant to a CE to get a residual functional
capacity assessment to determine the claimant’s work abilities. The CE always comes back
saying the client can do some level of work. DDS is ignoring the fact that the claimant meets the
Bluebook Listing and denying the case, citing that the CE indicated the claimant could work.
