It's been awhile since I've last posted here. But there has been so much in the press recently attacking the SSI and SSDI programs, that I felt compelled to write a follow-up post to my previous "Social Security in the Press" post. To say that these pieces had me outraged is an understatement. Ask my husband: as we watched the 60 minutes piece together and he could barely hear the interview because I was yelling so loud over it. It had me angry, that's for sure. I won't link to the actual reports here, as I don't want to give them any more attention than they have been getting! But a quick Google search will likely yield links to both the 60 Minutes segment and the NPR piece that came before it.
Why was I angry? Well, like the NPR piece, the 60 minutes segment was riddled with inaccuracies about our nation's Social Security program. Worse, these inaccuracies seemed to stem from an anecdotal look into an isolated incident which took place in West Virginia involving allegations of collusion between an attorney and one particular judge. I repeat: this incident was isolated. Yet, 60 Minutes seemed to be leading viewers to believe that the program was inherently flawed by pointing the finger at this one attorney -- an attorney who, I can assure you, does not represent the norm.
Earlier this year, I sent a response to the editors and producers of the NPR piece with my thoughts on the inaccuracies and problems with their story, authored by Chana Joffe-Walt. I would like to share that response here. In my response, I chose to highlight those parts of the story I found especially egregious, though my response certainly did not cover all of the problems I had with this piece. In the wake of the 60 Minutes story, I felt that publishing this for all to read would help some understand what the disability program looks like from the perspective of someone who actually works with the disabled every day and has seen first hand how these important government benefits have literally saved lives.
Dear Editors and Producers:
I am writing regarding the recent episode of This American Life entitled Trends With Benefits. As a practicing Social Security Disability attorney, I was disappointed with what I found to be a somewhat skewed and certainly misinformed piece on the federal disability programs.
For example, the author, Chana Joffe-Walt’s fails to mention that while education and job availability -- not just disabling conditions -- were a factor in many of the disability stories she followed, these are factors that Social Security Regulations mandate that judges consider in most cases when making a disability determination. The reasoning behind this is that people over the age of 50 who once worked physically-demanding jobs are less likely to be hired at a sedentary position the closer they get to retirement age. If a judge or disability examiner finds that that such a person has retained a capacity for only sedentary-type jobs (or other less-demanding positions) due to their disability, they are disabled according to Social Security rules. While the author alluded to the theories behind such a rule (in what seemed to be an attempt to point out these types of claims as “loopholes” in the system), she failed to actually recognize that this reasoning was put in place by the Social Security Administration in the first place, for the purpose of protecting those types of workers that Ms. Joffe-Walt talks about in her story. If the author had wanted to argue whether or not these government-implemented regulations should still be in effect, that’s one thing. But to suggest that people are not deserving of benefits because their age, education or past work experience played a role in their decision to apply for benefits is misleading, considering these are the exact criteria Social Security must consider (in addition to disabling conditions) when making a determination in cases where the applicant is over 50. In light of this information, I think author should revisit the idea of baby boomers playing a role int he rise of disability claims, as it would certainly make sense that the more baby boomers who reach the age of 50, the more would qualify for disability under the current rules.
I also found it troubling that the author suggested that there is some inherent flaw in the system if people who are initially denied benefits appeal these denials. Ms. Joffe-Walt blamed this “phenomenon” on an increase in Social Security attorneys pushing people to appeal. In actuality, court precedent from many, many years ago found that people have the absolute right to have their cases heard by an Administrative Law Judge, but only after an initial determination is made. The piece, unfortunately, does not mention that initial disability determinations are not made by judges, but rather by examiners – sometimes not even medical examiners – who never even see the applicant face-to-face. If the claim is then denied, the applicant then has the right to appeal and only then are they able to appear in front of a judge. This is a right I think most readers/listeners would find reasonable. To not mention that initial determinations aren't made by judges or even by face-to-face evaluators certainly skews the facts in favor of the author's overall point that too many people who are denied initially go on to appeal. If you were an applicant, wouldn't you want the chance to have your case be heard by a judge? While I understand that the overall goal of the piece was to cover the rise in claims, and thus, appeals, I do think it unfair to blame attorneys for this rise. I often have clients who are denied multiple times initially before seeing me, not fully understanding that they have the option to appeal their claim and actually appear in front of a judge. I certainly hope the intent of the author was not to criticize attorneys for helping people unfamiliar with an often confusing system better understand their rights. While there may be attorneys out there with financial agendas, of course, that doesn't take away from the fact that in encouraging people to appeal, attorneys are simply encouraging people to pursue their rightful next step in the administrative process. In doing so, applicants have the opportunity to "plead" their case in front of an actual judge, rather than through some remote case evaluator whom they never actually meet.
My main problem with this piece, overall, is that the author used primarily anecdotal evidence from a small segment of the population to paint a picture that somehow undeserving claims have become the rule rather than the exception. The author -- who, in my opinion, evidenced a clear agenda -- masquerades as someone who was simply “curious” about the federal disability program. If that really is the case, I encourage her to continue to explore this curiosity (perhaps outside the confines of Hale County) by speaking with any of the many people who are still unfairly denied benefits and struggle as their disability worsens, while they have no income or health insurance to pay for the rising costs of their care. I encourage her to follow their struggles as they exhaust all savings, often develop severe anxiety and depression (if that's not one of their many health issues already), and at times become suicidal because they are so hopeless. After two years of practicing disability law, these are stories I encounter often. Maybe these will be the stories Ms. Joffe-Walt explores next.
Of course, this is only my interpretation of the piece. Perhaps Ms. Joffe-Walt did not intend to portray Social Security so simply -- as a system that has become overwrought by claimants taking advantage of loopholes and appeal rights. But it certainly sounded that way to this listener. Perhaps my experience with some of the sadder cases I've referenced in this letter has caused me to over-react on this issue, but I do feel strongly that "Trends With Benefits" told only part of the story.
Bethany G. Versical
Michigan Social Security Attorney
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