Now I know the folks up at the Think Tanks can wile away the hours, conferrin’ with the flowers, consulting with the rain … they unravel any riddle for any individ’le in trouble or in pain … but down here at the Dunk Tank … my head I be scratchin’ while my thoughts are busy hatchin’ … if I only had a brain!
In a recent article Surge in Disability Claims Is Gold Mine for Law Firms, Tad DeHaven, a budget analyst with the Cato Institute, makes his most impactful statement in the title, but the article itself is not well thunk through.
Can the Dunk Tank say that about work published by an established Think Tank? Probably not, but here goes nuthin’.
Mr. DeHaven contends that the “federal government’s two main disability programs have experienced rising enrollment and soaring spending in recent years,” but he fails to give any reasons for that rise. Mr. DeHaven explains that the “subjective disability determination process” creates an opportunity for attorneys who specialize in the area of law to “grab a piece of the action.”
By providing no reasons for the increase in numbers of claimants and beneficiaries of Social Security’s disability programs, the subtle message is that there are no good reasons. By omission of facts, and unsubstantiated assertions that claimants and beneficiaries are marginally or moderately disabled, and capable of performing work, Mr. DeHaven disingenuously leaves readers with the idea that this is the cause for the increased numbers. Readers are also left with the sneaking suspicion that ‘hey, I’m the only one out here haulin’ off to work everyday!’
But there are reasons for the increase in the numbers of claimants and beneficiaries of Social Security disability benefits. Good, and innocuous reasons. And the increases were foreseen almost two decades ago by Social Security’s Office of Chief Actuary. Earlier this year, Stephen C. Goss, Social Security’s Chief Actuary testified before the House Ways and Means Subcommittee on Social Security, delineating the factors behind the increased numbers of claimants and beneficiaries of disability benefits.
Mr. Goss explained the factors used to accurately predict the increase: a sizeable increase in the total population; the huge wave of aging baby boomers who are not only large in number, but who are in their disability-prone years; and the increased percentage of the population, primarily women, who entered and stayed in the workforce, paid Social Security payroll taxes, and who are now eligible for disability benefits.
That’s it. Those are the factors. The Office of Chief Actuary did not factor into their accurately predictive algorithm that the American people have become lazy bums because … that is a fiction. Rest assured, you are not the only one haulin’ off to work everyday. We still have rush hours.
That attorneys – competent and well-versed in the complex area of law that is Title 42, U.S.C., Subchapters II, XVI, and XVII – step up to the plate to provide representation to this mass of claimants is simply free market forces at work. There is nothing unseemly about it.
I would have guessed that the Cato Institute would look favorably on the well-oiled functioning of the American free market. Am I missing something? Okay, okay, I can’t even pretend to be that much of a doofus. I get it. It is objectionable even though it is a free market enterprise because it is assisting people who by definition cannot participate in the harsh, survival-of-the-fittest free market. That’s the problem. Also, there is just something vaguely contemptible about poor people, and average people having attorneys represent their interests.
But the nuance lost in Mr. DeHaven’s broad, unconsidered statement that having attorneys representing claimants is bad, is that there are important advantages to the Social Security Administration – and to the taxpaying public – when private attorneys are hired by claimants of Social Security disability benefits.
The services that attorneys provide their clients relieves the Social Security Administration and its work force from having also to provide those same services – at least to those clients. Moreover, attorneys even provide information that Social Security workers are barred from providing that can diminish the work load for Social Security, and costs to taxpayers.
For example, private attorneys are able to dissuade claimants whose claims lack merit from proceeding, whereas Social Security workers are barred from doing so. Social Security workers are required to remain neutral and are prohibited from providing legal advice to claimants. So, a Social Security worker must provide the service of processing an application even if it lacks merit, whereas an attorney can explain to a potential claimant why their claim lacks merit and why an application for disability benefits is inadvisable. Contrary to popular belief, this happens with regularity.
For example, I often receive telephone calls from potential clients who were advised by their physicians “to file a disability claim.” Although the physicians are well-meaning, they do not typically know the legal definition of disability, and inadvertently give incompetent legal advice. Just as I might give utterly preposterous medical advice.
When physicians care for a patient who can no longer perform the duties of his or her past work, they often conclude the patient would qualify for disability benefits. But, that is not necessarily true.
The patient has to show not only that he cannot perform his last job, but also that he cannot perform any other job on a full-time basis as a result of a medical condition. So, while the patient may not be able to continue working as a construction worker lifting 50 pounds of material with three herniated discs, there is not necessarily any reason he would not be able to be a cashier, or a telemarketer, or a security guard – in other words, a job that does not require such strenuous exertion. To be eligible for disability benefits, a lamed-up construction worker would have to show he is unable to do lighter, or even sedentary jobs.
Mr. DeHaven’s article erroneously stated that “[o]riginally, the idea was that people would be eligible for disability benefits only if they could not work at all, but today the standards for ability to work are much looser.” No, sir. In fact, the standards are not looser.
Social Security’s legal definition of “disability” is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” “Substantial gainful activity,” essentially means full-time work.
As an attorney, when a potential client calls, it is my job to determine whether or not their claim is meritorious. When I think it is not, en route to explaining why I will not represent the caller, I explain the legal definition of disability, and why it appears to me that she does not meet that standard, or would not be able to prove she meets that standard. I have received telephone calls from people who had already spoken with several other attorneys who have declined to represent them, because their claims lack merit, and eventually they conclude that if they are hearing that their claim lacks merit from so many attorneys, maybe it’s not worth pursuing. And they drop it.
A few glorious times after I explained the legal definition of disability a caller would declare essentially, “that ain’t me! I ain’t that bad off!” Much rejoicing as the caller realized he or she still had some residual functionality upon which to draw, and there were other employment possibilities to be pursued. Thankfully they had other options because the disabled life is not … optimum.
Furthermore, private attorneys spend innumerable hours explaining program rules to their clients, thereby reducing the need for Social Security workers to provide those same never-ending explanations.
One of the services clients are paying their attorneys for is explaining the complicated statute, regulations and program rules to them in a way they can understand. I could not begin to add up the number of hours I have spent explaining and re-explaining these rules to my clients. To ensure understanding, and to effectively communicate, I developed easy-to-understand handouts, draw on a white board, wave my hands wildly in the air – interpretive dance – whatever it takes. Private attorneys servicing their clients in this way eliminate the need for Social Security workers also to explain and re-explain to these claimants, thereby reducing the Social Security Administration’s work load.
Furthermore, attorneys who request, and are eligible for, direct fee payment are required to electronically file reconsideration and hearing appeals along with the lengthy, required “Disability Report.” This requirement lightens the workload for Social Security workers, at least towards those claimants who are represented by attorneys.
Additionally, private attorneys are required to “develop” their files by submitting all relevant medical and other records for their clients whose cases are at the hearings level. This means that the attorney gathers up-to-date information from clients, requests the records from each medical provider, educational facility, and employer – removing all of those duties from Social Security.
Furthermore, the attorneys also pay for the records – unburdening the Social Security Administration from those expenses completely.
Private attorneys provide an invaluable service to the Administrative Law Judge corp by preparing clients for hearings. To do this, the attorney must explain the legal issues to their clients, and help them understand what is and is not relevant, so that the testimony in a formal hearing is directed at what the judge needs to know. This saves an enormous amount of judge-time, and cuts down on the frustration of claimants meandering about not understanding what information is and is not relevant.
Mr. DeHaven declares that “… the vast majority of applicants who appeal a denial of benefits to an administrative law judge have legal representation,” but without support merely assumes that is a negative. Au contraire, Mr. DeHaven! Taxpayers should hope that most, if not all, claimants are represented by attorneys for the efficiency that provides to the Social Security Administration and to the taxpaying public.
If no claimants were represented by private attorneys, the Social Security Administration would reel under the loss of this privatized workforce that carries much of the burden of processing claims, and does not cost Social Security a penny.