SOCIAL SECURITY AND THE 47% OR IS IT 50%?

This is what I know: no mother whispers into her child’s cradle to her sleeping infant, or to her cooing baby, in her arms, “When you grow up, you’re going to be disabled and go on Social Security.” This is also what I know: no child, when a teacher or another adult asks, “What do you want to be when you grow up?” EVER responds, “When I grow up, I’m going to be disabled and collect Social Security Disability” or, even more absurdly, “When I grow up, I’m going to fake being disabled and collect Social Security Disability.” No mother wishes such a fate for her child. No child dreams of a future other than becoming a fireman, doctor, teacher, nurse, policeman, lawyer, astronaut, or President. Those are the shared dreams of all mothers and children. There is nothing less than those dreams.

But, sometimes something happens along the way. Sometimes it happens early in the form of childhood illnesses, or severe learning disorders. Sometimes it is a product of mental illness, made worse by poverty or neglect or abuse. Sometimes it happens very late in life, after years of working and working through multiple illnesses or injuries and then the final blow–the injury or illness from which the worker cannot recover.

I am always struck, when I meet potential Social Security Disability clients for the first time, that despite what the plutocrats may think, how sad, scared and profoundly hopeless these people are. The last place they want to be is sitting in a lawyer’s office, talking about the most private aspects of their lives. They are terrified of their futures. They are embarrassed to be speaking of their past and present. They are humiliated by their poverty. They are intimidated by a system that they do not understand, that is so complex that they can never understand, and they are intimidated by a lawyer whom they think is “judging them.”

This is also what I know: but for some unpleasant and unfortunate exceptions, the Administrative Law Judges in front of whom it has been my privilege to appear for over 32 years, are thoughtful, smart, decent jurists. They crave understanding the case and understanding the medical aspect of a claimant’s case and how those medical conditions affect the claimant’s ability to function both in the workplace and outside the workplace. They are not “soft touches”; they demand the highest level of practice from attorneys and demand the evidence supporting the claim. But, they are also (again but for those outliers–those characters out of Dickens, and I do not mean Little Dorrit) not the enemy.

As I listened to the “testimony” at the Congressional Hearing on September 13, 2012, it was very clear that Congress was not declaring war just on the disabled, but also on the Judges who hear the cases of the disabled. The very premise of the inquiry, made the result inevitable. The committee examined 300 favorable decisions. They did not look at one unfavorable decision. The Committee simply didn’t care if people were mistakenly denied benefits. The Committee’s purpose was to “prove” its premise that the undeserving poor are getting a free ride.

It is more than just discouraging that pressure is being placed on these Judges to decide cases by statistics. It is clear that the politicians are insisting that the measure of these Judges be the number of people to whom they deny benefits. The core of due process is an independent fact-finder. A judiciary that is told that they must deny at least 50% of the applicants, regardless of the merits of the cases, is not an independent judiciary. But, that is clearly the intent of Congress. The How MI Doing initiative, is an ongoing “report card” system that does nothing more than show the percentage of grants and denials, in comparison with other judges. There is nothing subtle about the intent of that initiative.

The Congressional “inquiry” recommended several measures, but the first two are the most telling. The first requires that a government representative be present at all hearings “to reduce instances in which SSA ALJs overlook evidence indicating a claimant is not disabled”. That is a verbatim quotation. Quite clearly, congress wants a policeman to patrol the Judges. The second is an ALJ “review process”. Presumably, the new policemen will also act as a government plant to critique the Judges.

Put all three mechanisms together: an on-going report card, a police man and a “review” process, and what is clear is that Congress’ sole purpose is to ensure that ALJ’s hearing a case can no longer judge the case without interference, and they judge favorably at their peril.

Congress has, apparently, decided that it does not have the power to stop people from becoming disabled, or stop them from applying for the benefits guaranteed the disabled under law, but it sure as heck can intimidate the Judges whose job it is to apply the law.