In 480 BC, an outnumbered Greek force of 300 Spartans, along with others in the alliance of Greek city-states, attempted to stop the advance of the Persians to conquer Greece at Thermopylae. King Leonidas of Sparta led the 300 Spartans, to their and his death. At the end of the battle, the Persian King, Xerxes I, in a fit of rage ordered that the head of Leonidas be cut off and his body crucified.
In September, 2012, the Permanent Subcommittee on Investigations, part of, bizarrely, the Committee on Homeland Security and Governmental Affairs, released a report on “Improving the Quality of Benefit Award Decisions” in Social Security Disability cases. Link here.
The methodology used by the Committee was, it appears on the face of it, benign enough: randomly select 300 favorable Social Security Disability decisions to determine if the decisions were supported by the evidence. Sure; why not?
There is, in fact, a “why not.” The “why not” is that it has been the practice, long and routine, that the Administrative Law Judges [ALJ’s] and the administration have never taken the same (or, truly, even much) care in the writing of the decisions in cases favorably decided, as it have with cases unfavorably decided. The reason for that was simple: no one would appeal a favorable decision, so the thoroughness in the detail and in the recitation of the evidence and in the careful explanation of the bases for the decision were just not necessary. Having made a decision that the claimant was disabled, the ALJ’s intent was to get the favorable decision out rapidly, so the disabled person, who had waited fifteen, eighteen, twenty months, and then some, for their case to be heard and decided, would be put out of their deprivation. This was not a dirty secret; it made sense to focus the Administration’s limited resources and time to using the care with unfavorable decisions and not wasting those limited resources on those decisions that would not be read, almost, after the words, “Fully Favorable.”
Not only were the results of the Subcommittee “study” not surprising, the results could have been predicted by any person familiar with the administrative process, including disability examiners, ALJ’s and practicioners.
Now, what the Subcommittee decided based on the obvious, was that the decisions it examined (300 decisions that no one spent any particularly substantial time drafting, crafting, and documenting), were not well drafted, crafted or documented [“The result was a large number of poor quality decision…”]. They were not intended to be well-drafted, crafted or documented. However, the Subcommittee took it one step further and took this lack of careful craftsmanship to mean that the 300 people may not have been disabled […”raising questions about whether they were decided correctly”]. The second part does not follow the first. Lack of careful craftsmanship of the decision does not either mean or suggest that the decision was wrong. However, the Subcommittee decided it did; that’s what they wanted to decide because, as we all know, there is a War on the Poor in this country now.
So, what has the result been since this report was released in September, 2012? The result has been that the ALJ’s are spending the same amount of time writing favorable decisions as they are the unfavorable. That means that claimants are waiting an additional one, two and three months for the decisions. That means that if some goofy medical report states, “Patient fell off a snow plow”, when the patient, in fact, fell on a snow pile [real life story], that the ALJ has to spend one or more paragraphs explaining why the claimant was not, in fact, working as a snow plow operator.
The Subcommittee has, in a rage like Xerxes, cut off the head and crucified the body of the ALJ’s for doing nothing more egregious than looking kindly on disabled people.
There are two wonderful quotations from the Battle of Thermopylae (and we all know they may be apocryphal, but to that I say, “Nuts”). The first is Leonidas, when asked if he will lay down his arms, was to have said, “Molon labe” meaning, “Come and take them.” Not particularly apt to this posting, but I like it too much not to mention it, despite it having been unfortunately appropriated by the gun lobby. The second was Leonidas’ General’s response to the prediction that the shower of the Persian arrows would block out the sun: “Then we shall have our battle in the shade.”
The Subcommittee has released a second report, about which I will say more in a later posting, in October, 2013, that purports to show systemic corruption. The plan is to make it increasingly difficult for the Administration to award benefits to disabled people.
We see it happening daily in our practices.
We shall have our battle in the shade, it seems.