Eliminate the focus on adjudication, remove the insurance model, and replace it with a rehabilitation and job placement model. Fully fund State VR offices, have all claims referred to actual rehabilitation counselors at State VR offices. Place in jobs (with reasonable accommodations) those who can work. Pay disability benefits to those who are certified by the States as unable to work due to disability.
Have universal health care (or at least cover 31,000,000 uninsured) and disconnect the payment of health care from the disability system.
Pay for all of this by completely eliminating ODAR and the entire State DDS system.
Run a pilot program in six States in 2012 to start the change over. Change over the entire system by 2016.
That should pretty well do it.
Questions? _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
I like your proposal especially the focus on rehab and reasonable acomodation. Additionally, many of our clients, with basic health care, could continue to work at least at the SGA level.
Quote:
Pay disability benefits to those who are certified by the States as unable to work.
My question is: Who will do this certification and what standard will they use, keeping in mind that you are eliminating the adjudicatory model?
Quote:
Pay for all of this by completely eliminating ODAR and the entire State DDS system.
Individual DVR Counselors would certify clients who were unplaceable due to disability. It would be cosigned by the DVR Office supervisor and referred for payment. They know who can and cannot work, they have been assigning case codes and handling caseloads for decades.
Here is the definition of a case closing based upon successful return to work from the Code of Federal Regulations:
Quote:
§ 361.56 Requirements for closing the record of services of an individual who has achieved an employment outcome.
The record of services of an individual who has achieved an employment outcome may be closed only if all of the following requirements are met:
(a) Employment outcome achieved. The individual has achieved the employment outcome that is described in the individual's IPE in accordance with § 361.46(a)(1) and is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.
(b) Employment outcome maintained. The individual has maintained the employment outcome for an appropriate period of time, but not less than 90 days, necessary to ensure the stability of the employment outcome, and the individual no longer needs vocational rehabilitation services.
(c) Satisfactory outcome. At the end of the appropriate period under paragraph (b) of this section, the individual and the qualified rehabilitation counselor employed by the designated State unit consider the employment outcome to be satisfactory and agree that the individual is performing well in the employment.
(d) Post-employment services. The individual is informed through appropriate modes of communication of the availability of post-employment services.
34 C.F.R. § 361.56
It's easy to see that a short section of code defining a person with a disability could be added to 34 C.F.R. It would address those who, considering age, education, and work experience, could not work as defined by 34 C.F.R. § 361.56 (which defines a successful job placement. If a person cannot get a successful job placement and case closure due to disability, certification for disability payments would follow.)
I could write the required proposed code changes in an hour. It would take about another hour to rewrite proposed changes to the Social Security Act. I'll do it for free. If you want a full bill for introduction to Congress amending the Act, I'll have to charge for a day or so of research and writing time. I don't think it would cost the government more than $5,000 for my time to get it set up.
I suppose the changes would make me a darling in the VR circles since it would flood that sector with professional jobs, and revitalize the graduate programs for vocational counselors. Attorneys would not like it too much. But no worries, there are always jobs someplace for good attorneys. We are all good attorneys, right?
By the way, it would also eliminate thousands (tens of thousands?) of other SSA and State jobs. Consider the folks at local SSA offices all around the USA who would never have to consider another disability application or appeal. Consider too the simplification of the payment process, the elimination of training, no more attorney fees to withhold, federal court practice would evaporate, no need for regional counsel offices to handle civil actions regarding disability, Buildings would be sold, leases would end. The Congressional Budget Office would have a great time calculating the savings. All of this would help reduce the budged deficit. That's a good thing.
The best part is what happens to the disabled. No more would they wait years as their claims meandered through an arbitrary disability adjudication process. Many would return to work and start paying taxes again.
I know that State VR programs are hurting now due to lack of funding. But with the massive infusion of money that this would create, the VR offices around the USA would be doing what they should, rather than languishing as they are now. _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
Posted: Wed Mar 17, 2010 11:31 pm Post subject: Any appeal rights?
Quote:
Individual DVR Counselors would certify cleints who were unplaceable due to disability. It would be cosigned by the DVR Office manager and referred for payment. They know who can and cannot work, they have been assiging case codes and handling caseloads for decades.
Suppose someone who is deemed placeable believes they are unplaceable? Is there any appeal under your scheme or is the DVR Office Manager the final word?
Would there be a right to a hearing before a DVR ALJ, then a right to appeal to the DVR Appeals Council and then finally to federal court?
Does your scheme simply replace lawyers and lawyer-ALJ's in the administrative system with DVR employees?
The CFR already has a mediation model built in for disputed VR services. Appeals would be handled the way any State VR appeal is now handled by staff and offices that are already in place. As it is, District Court and State Court litigation is exceedingly rare.
It is especially hard for people who have "grown up" in the adjudication model to see things differently. But consider this. When you have a broken arm, you do not go to a lawyer, you go to a doctor. You do not want litigation, you want medical services. Similarly, when your car is broken, you don't go through an extended litigation process, you go to a car repair shop and get your car fixed.
Similarly, when people are disabled and out of work, they usually don't want a handout, they want to go back to work and health care. I had the pleasure of running an evaluation department that performed vocational evaluations leading to job placement for thousands of people at Goodwill for DVR (a DVR contract with Goodwill) when I worked as a vocational evaluator. Not one case ever went to litigation. Zero.
Consider this: DVR services are designed to be customer oriented and outcome driven. The process includes communication and detailed planning. When the DVR client is a full partner in the process, rather than an adversary, litigation is not the goal for anybody. What would cause a DVR client to not be placed, but not be certified for payment by SSA? Failure to cooperate, unable to be found, turning down jobs, no shows, failure to qualify due to illegal alien status, unavailable for work due to non-disability reasons (such as job training, imprisonment), and dropping out of the system. These are not nuanced concepts. When disputes arise, they are handled by mediation. A remedy of mediation can be to restore the client to DVR services for more training, more placement services, etc.
Contrast that to the goofy adjudication framework at SSA, where what constitutes a "significant number" of jobs is undefined after decades, the DOT is a generation out of date, no data source exists to answer simple hypothetical questions, and DDS office largely fail to follow the most basic of Rulings. SSA is custom-crafted to generate complex and endless litigation of the kind that leaves the Supreme Court wondering whether elevator operator jobs need to really exist and ALJs to pretend there are such things as dowel inspectors. DVR is custom crafted for customer service, rehabilitation, and job placement. The differences could not be more stark.
Here is the DVR review rule at 34 C.F.R. § 361.57. It is the model of clarity and simplicity in comparison to the convoluted and impossibly complex processes and standards of SSA. The plan I propose creates no new bureaucracies. It shifts the focus to the States, and drastically reduces the federal bureaucracy. It's fiscally and politically conservative. (Strange that, coming from me.)
Quote:
§ 361.57 Review of determinations made by designated State unit personnel.
(a) Procedures. The designated State unit must develop and implement procedures to ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the designated State unit that affects the provision of vocational rehabilitation services may request, or, if appropriate, may request through the individual's representative, a timely review of that determination. The procedures must be in accordance with paragraphs (b) through (k) of this section:
(b) General requirements.
(1) Notification. Procedures established by the State unit under this section must provide an applicant or eligible individual or, as appropriate, the individual's representative notice of --
(i) The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under paragraph (e) of this section;
(ii) The right to pursue mediation under paragraph (d) of this section with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;
(iii) The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;
(iv) The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of paragraphs (d) and (f) of this section; and
(v) The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.
(2) Timing. Notice described in paragraph (b)(1) of this section must be provided in writing --
(i) At the time the individual applies for vocational rehabilitation services under this part;
(ii) At the time the individual is assigned to a category in the State's order of selection, if the State has established an order of selection under § 361.36;
(iii) At the time the IPE is developed; and
(iv) Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.
(3) Evidence and representation. Procedures established under this section must --
(i) Provide an applicant or eligible individual or, as appropriate, the individual's representative with an opportunity to submit during mediation sessions or due process hearings evidence and other information that supports the applicant's or eligible individual's position; and
(ii) Allow an applicant or eligible individual to be represented during mediation sessions or due process hearings by counsel or other advocate selected by the applicant or eligible individual.
(4) Impact on provision of services. The State unit may not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and IPE development, pending a resolution through mediation, pending a decision by a hearing officer or reviewing official, or pending informal resolution under this section unless --
(i) The individual or, in appropriate cases, the individual's representative requests a suspension, reduction, or termination of services; or
(ii) The State agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative.
(5) Ineligibility. Applicants who are found ineligible for vocational rehabilitation services and previously eligible individuals who are determined to be no longer eligible for vocational rehabilitation services pursuant to § 361.43 are permitted to challenge the determinations of ineligibility under the procedures described in this section.
(c) Informal dispute resolution. The State unit may develop an informal process for resolving a request for review without conducting mediation or a formal hearing. A State's informal process must not be used to deny the right of an applicant or eligible individual to a hearing under paragraph (e) of this section or any other right provided under this part, including the right to pursue mediation under paragraph (d) of this section. If informal resolution under this paragraph or mediation under paragraph (d) of this section is not successful in resolving the dispute within the time period established under paragraph (e)(1) of this section, a formal hearing must be conducted within that same time period, unless the parties agree to a specific extension of time.
(d) Mediation.
(1) The State must establish and implement procedures, as required under paragraph (b)(1)(ii) of this section, to allow an applicant or eligible individual and the State unit to resolve disputes involving State unit determinations that affect the provision of vocational rehabilitation services through a mediation process that must be made available, at a minimum, whenever an applicant or eligible individual or, as appropriate, the individual's representative requests an impartial due process hearing under this section.
(2) Mediation procedures established by the State unit under paragraph (d) must ensure that --
(i) Participation in the mediation process is voluntary on the part of the applicant or eligible individual, as appropriate, and on the part of the State unit;
(ii) Use of the mediation process is not used to deny or delay the applicant's or eligible individual's right to pursue resolution of the dispute through an impartial hearing held within the time period specified in paragraph (e)(1) of this section or any other rights provided under this part. At any point during the mediation process, either party or the mediator may elect to terminate the mediation. In the event mediation is terminated, either party may pursue resolution through an impartial hearing;
(iii) The mediation process is conducted by a qualified and impartial mediator, as defined in § 361.5(b)(43), who must be selected from a list of qualified and impartial mediators maintained by the State --
(A) On a random basis;
(B) By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative; or
(C) In accordance with a procedure established in the State for assigning mediators, provided this procedure ensures the neutrality of the mediator assigned; and
(iv) Mediation sessions are scheduled and conducted in a timely manner and are held in a location and manner that is convenient to the parties to the dispute.
(3) Discussions that occur during the mediation process must be kept confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.
(4) An agreement reached by the parties to the dispute in the mediation process must be described in a written mediation agreement that is developed by the parties with the assistance of the qualified and impartial mediator and signed by both parties. Copies of the agreement must be sent to both parties.
(5) The costs of the mediation process must be paid by the State. The State is not required to pay for any costs related to the representation of an applicant or eligible individual authorized under paragraph (b)(3)(ii) of this section.
(e) Impartial due process hearings. The State unit must establish and implement formal review procedures, as required under paragraph (b)(1)(i) of this section, that provide that-
(1) A hearing conducted by an impartial hearing officer, selected in accordance with paragraph (f) of this section, must be held within 60 days of an applicant's or eligible individual's request for review of a determination made by personnel of the State unit that affects the provision of vocational rehabilitation services to the individual, unless informal resolution or a mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time;
(2) In addition to the rights described in paragraph (b)(3) of this section, the applicant or eligible individual or, if appropriate, the individual's representative must be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence;
(3) The impartial hearing officer must --
(i) Make a decision based on the provisions of the approved State plan, the Act, Federal vocational rehabilitation regulations, and State regulations and policies that are consistent with Federal requirements; and
(ii) Provide to the individual or, if appropriate, the individual's representative and to the State unit a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing; and
(4) The hearing officer's decision is final, except that a party may request an impartial review under paragraph (g)(1) of this section if the State has established procedures for that review, and a party involved in a hearing may bring a civil action under paragraph (i) of this section.
(f) Selection of impartial hearing officers. The impartial hearing officer for a particular case must be selected --
(1) From a list of qualified impartial hearing officers maintained by the State unit. Impartial hearing officers included on the list must be --
(i) Identified by the State unit if the State unit is an independent commission; or
(ii) Jointly identified by the State unit and the State Rehabilitation Council if the State has a Council; and
(2)(i) On a random basis; or
(ii) By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative.
(g) Administrative review of hearing officer's decision. The State may establish procedures to enable a party who is dissatisfied with the decision of the impartial hearing officer to seek an impartial administrative review of the decision under paragraph (e)(3) of this section in accordance with the following requirements:
(1) A request for administrative review under paragraph (g) of this section must be made within 20 days of the mailing of the impartial hearing officer's decision.
(2) Administrative review of the hearing officer's decision must be conducted by --
(i) The chief official of the designated State agency if the State has established both a designated State agency and a designated State unit under § 361.13(b); or
(ii) An official from the office of the Governor.
(3) The reviewing official described in paragraph (g)(2)(i) of this section --
(i) Provides both parties with an opportunity to submit additional evidence and information relevant to a final decision concerning the matter under review;
(ii) May not overturn or modify the hearing officer's decision, or any part of that decision, that supports the position of the applicant or eligible individual unless the reviewing official concludes, based on clear and convincing evidence, that the decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to the approved State plan, the Act, Federal vocational rehabilitation regulations, or State regulations and policies that are consistent with Federal requirements;
(iii) Makes an independent, final decision following a review of the entire hearing record and provides the decision in writing, including a full report of the findings and the statutory, regulatory, or policy grounds for the decision, to the applicant or eligible individual or, as appropriate, the individual's representative and to the State unit within 30 days of the request for administrative review under paragraph (g)(1) of this section; and
(iv) May not delegate the responsibility for making the final decision under paragraph (g) of this section to any officer or employee of the designated State unit.
(4) The reviewing official's decision under paragraph (g) of this section is final unless either party brings a civil action under paragraph (i) of this section.
(h) Implementation of final decisions. If a party brings a civil action under paragraph (h) of this section to challenge the final decision of a hearing officer under paragraph (e) of this section or to challenge the final decision of a State reviewing official under paragraph (g) of this section, the final decision of the hearing officer or State reviewing official must be implemented pending review by the court.
(i) Civil action.
(1) Any party who disagrees with the findings and decision of an impartial hearing officer under paragraph (e) of this section in a State that has not established administrative review procedures under paragraph (g) of this section and any party who disagrees with the findings and decision under paragraph (g)(3)(iii) of this section have a right to bring a civil action with respect to the matter in dispute. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy.
(2) In any action brought under paragraph (i) of this section, the court --
(i) Receives the records related to the impartial due process hearing and the records related to the administrative review process, if applicable;
(ii) Hears additional evidence at the request of a party; and
(iii) Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.
(j) State fair hearing board. A fair hearing board as defined in § 361.5(b)(22) is authorized to carry out the responsibilities of the impartial hearing officer under paragraph (e) of this section in accordance with the following criteria:
(1) The fair hearing board may conduct due process hearings either collectively or by assigning responsibility for conducting the hearing to one or more members of the fair hearing board.
(2) The final decision issued by the fair hearing board following a hearing under paragraph (j)(1) of this section must be made collectively by, or by a majority vote of, the fair hearing board.
(3) The provisions of paragraphs (b)(1), (2), and (3) of this section that relate to due process hearings and of paragraphs (e), (f), (g), and (h) of this section do not apply to fair hearing boards under this paragraph (j).
(k) Data collection.
(1) The director of the designated State unit must collect and submit, at a minimum, the following data to the Commissioner of the Rehabilitation Services Administration (RSA) for inclusion each year in the annual report to Congress under section 13 of the Act:
(i) A copy of the standards used by State reviewing officials for reviewing decisions made by impartial hearing officers under this section.
(ii) The number of mediations held, including the number of mediation agreements reached.
(iii) The number of hearings and reviews sought from impartial hearing officers and State reviewing officials, including the type of complaints and the issues involved.
(iv) The number of hearing officer decisions that were not reviewed by administrative reviewing officials.
(v) The number of hearing decisions that were reviewed by State reviewing officials and, based on these reviews, the number of hearing decisions that were --
(A) Sustained in favor of an applicant or eligible individual;
(B) Sustained in favor of the designated State unit;
(C) Reversed in whole or in part in favor of the applicant or eligible individual; and
(D) Reversed in whole or in part in favor of the State unit.
(2) The State unit director also must collect and submit to the Commissioner of RSA copies of all final decisions issued by impartial hearing officers under paragraph (e) of this section and by State review officials under paragraph (g) of this section.
(3) The confidentiality of records of applicants and eligible individuals maintained by the State unit may not preclude the access of the RSA Commissioner to those records for the purposes described in this section.
(Approved by the Office of Management and Budget under control number 1820-0500)
34 CFR 361.57 _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
My question is how would you get either major political party to consider something rational like this?
I can't see the Republicans supporting it because they tend to be committed to eliminating Social Security, not making it work better for the people who actually need it.
The Democrats won't support it because it would obviously have an adverse impact on AFGE and other unions.
What will it take before SSA, Congress and other government bodies admit that there are major problems with the way the system currently works and will actually commit to fixing it?
It is not possible to "fix" the current adjudication system. Very bright, informed, and very dedicated people have been trying since the 1970s and they all have failed. Millions have been spent, The clear answer is there no "fix" to be had. The insurance/adjudication model is fundamentally flawed. It's not broken, its the wrong tool for the job.
My plan is fiscally conservative, it reduces the federal bureaucracy, it is states-rights oriented, it increases payments to States, it reduces the federal deficit, it provides better services to the disabled, and it pays for itself. It is pro-veteran, pro-handicapped, pro-small business, and pro-family.
It would increase trade school and university funding via DVR training placement. Working disable people pay taxes and vote.
The question should be, who would not support it? The answer to that is the AALJ union, NOSSCR, NADR, claimants attorneys and non-attorney reps. Also State AFCME unions would freak out. These are the people that SSA calls "stakeholders." They are nothing of the sort. The "stakeholders" are the disabled we serve. SSA has stood this on its head for years.
It seems to me that this is something that would have broad bipartisan support. _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
SSA is custom-crafted to generate complex and endless litigation of the kind that leaves the Supreme Court wondering whether elevator operator jobs need to really exist and ALJs to pretend there are such things as dowel inspectors.
Joined: 11 Jun 2004 Posts: 232 Location: Montpelier, Vermont
Posted: Fri Mar 19, 2010 02:01 pm Post subject:
David, I really like some of the ideas that you have. Their the biggest merit would be to shift the focus onto creating employment that accommodates disabled people, and increasing support for that.
I am less sanguine about the prospects of doing away with adjudication. I do not think that the system you describe eliminates the need for adjudication as much as you think. It may reduce it, which would be a good thing. I am also wary of putting so much power in the hands of vocational counselors. I am sorry to say that the quality of vocational counselors where I live is abysmal. Granted, I deal with them mostly in the context of workers compensation which as it is set up in Vermont is more designed to cost the insurance industry as little as possible rather than putting adequate resources towards returning a person to work. However, even in the context of that system there is one counselor in the whole state that does what I would consider a good job on a regular basis. The rest seem to either spin their wheels, collect payment from the insruance company, providing no real benefit to the claimant. Or, even worse, they actively work to undermine claimant's worker's compensation claim. We had one VR counselor who said in the course of deposition that he considered himself to be working for the insurance company and that his job was to get a person off workers' compensation benefits as quickly as possible. I certainly would not want to trust him with any certification of unemployability.
Furthermore, I have had a number of clients in the state VR system who have very poor relationships with their counselors mostly because they believe that they are disabled but the VR counselor does not. I don't see that you would avoid adjudication in those cases, and I don't see that mediation would solve the problem. For mediation to work you need room for compromise. As it is now, I assume that most of the mediation that you are talking about if for services. I can see room for compromise when it comes to services, but where is the room for compromise with a monetary entitlement? You either get it or you don't. Are the parties going to be able to agree that the person gets only half of their Social Security benefit? Are they going to be able to agree to a lump-sum settlement and forgo future claims for Social Security? Those ideas seem dubious to me.
But that being said, I don't think that the best part of your idea is doing away with adjudication. The best part the idea is trying to creating a system that tries to get a person back to work (and gives them support) prior to adjudicating the claim . That is what is attractive about it to me. I think that is an idea that is worth a trial run.
Joined: 11 Jun 2004 Posts: 232 Location: Montpelier, Vermont
Posted: Fri Mar 19, 2010 04:31 pm Post subject:
I assume that by "valid" you mean that the current system relies on factual fictions with respect to the availability of occupations. The system that you are calling for would put all of the emphasis on a certificate of unemployability. I assume that you believe that this process would not rely on fictitious facts. If that is so, then why would an adjudication on the issue of whether the person is unemployable be invalid? If the certificate of unemployability would also rely on fictitious facts, then how would it be any more valid with or without the availability of adjudication?
As for reliability, adjudication is not 100% reliable for sure. But is there a better alternative to resolving a dispute? How reliable is democracy in reaching the right social policy? In my opinion, not very reliable. But I certainly would not exchange it for a different system, even if I thought I could get a better social policy out of it. If you are going to adjudicate the right "facts", then I have no qualms about relying on adjudication as the last step in deciding a dipute. But you need to be adjudicating the right facts. Your system seems to assume that there are right facts to be considering when addressing unemployability. If that is so, then I would accept the reliabilty of adjudicating those facts.
But these would be issues for the end of the process you have suggested. As I say, what I like about your suggestion is the beginning and the middle.
You assume incorrectly regarding what I mean by valid. Validity asks whether the arrow hits the target. In SSA's cases, where are the studies that show that there is a valid relationship between determinations that a person can or cannot work, and the real world of work? There are none. In the pending OIDAP process, the committee pretends in the final report that there is "face validity" in the process. That's nonsense. The report barely mentions validity. This is no surprise, there is no scientific support for validity in the adjudication process.
The current system is much more flawed than the obvious problem of unreliable and invalid vocational information and make-believe VE testimony. As you well know, how a case progresses often turns on the luck of the draw. By luck of the draw, I mean which ALJ and which ODAR office the claim falls into. There is no inter-rater reliability between ALJs. That's a reliability issue, which affects validity.
I could increase that list of ODAR problems ad-nausum, as could any practitioner who has seen his or her share of arbitrary and unsupportable decisions. See, for example, the discussion of this ALJ's decisions by a frustrated District Court:
Quote:
As a final observation, I note that this is the latest of many opinions in which this court has been critical of Administrative Law Judge Schneider's failure to issue a well-reasoned decision. See e.g. Kurth v. Astrue, 08-cv-0046-bbc, 568 F. Supp. 2d 1020, 2008 U.S. Dist. LEXIS 57969, *31, Opinion and Order, July 30, 2008 (administrative law judge failed to conduct critical review of evidence or build accurate and logical bridge from evidence to conclusion); Mason v. Astrue, 07-cv-0191-bbc, 2008 U.S. Dist. LEXIS 25792, *19, Opinion and Order, March 28, 2008 (administrative law judge's decision was "long on recitation and short on rationale"); Martin v. Astrue, 07-cv-186-bbc, 2007 U.S. Dist. LEXIS 74812, *2, Opinion and Order, October 4, 2007 (administrative law judge "employed questionable logic" in determining plaintiff's onset date); Becvar v. Astrue, 07-cv-136-bbc, 2007 U.S. Dist. LEXIS 69176, Opinion and Order, September 17, 2007 (administrative law judge failed to identify specific listings he was considering, failed to discuss statements of plaintiff's lay witnesses, failed to discuss credibility factors set out in Social Security Ruling 96-7p, 1996 SSR LEXIS 4 and failed to state basis for his conclusion that plaintiff could perform range of sedentary work activity); Vreeland v. Astrue, 06-C-466-C, 2007 U.S. Dist. LEXIS 22727, *28, March 27, 2007 (many reasons for administrative law judge's credibility determination were based on misstatements of record or specious logic) (report and recommendation); Leonard v. Barnhart, 06-C-207-C, 2006 U.S. Dist. LEXIS 88780, *2, December 4, 2006 (administrative law judge failed to build accurate and logical bridge between evidence and credibility determination in fibromyalgia case) (report and recommendation); Olson v. Barnhart, 06-C-204-C, 2006 U.S. Dist. LEXIS 70149, *16, September 25, 2006 (administrative law judge issued "misguided" and unreasoned decision in fibromyalgia case) (report and recommendation). Although the court understands that administrative law judges for the Social Security Administration face staggering workloads, that understanding cannot excuse these repeated failures. To borrow a phrase from the court of appeals, "[d]eference is earned; it is not a birthright." Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007). When the court is left to guess what the administrative law judge was thinking, remand is the likely result.
Hart v. Astrue, 2008 U.S. Dist. LEXIS 61507 (W.D. Wis. Aug. 11, 2008) (Lexis link: http://tinyurl.com/cfejcp ) (emphasis added).
You say that the reliability of adjudication is not 100%. The fact is, nobody knows what the reliability is, because nobody at SSA wants to know. Show me, for example, a peer reviewed study of inter-rater reliability of ALJ (or DDS) determinations of disability. Such studies do not exist. Similarly, there are no studies examining the accuracy of VE testimony in the context of the hypothetical questions asked by ALJs and the actual world of work. How would anybody possibly evaluate that nonsense?
The problem is, of course, not limited to ODAR. I have never seen a Wisconsin DDS determination that complied with the Rulings and regulations. Not one, since I started watching in 1992. The failure to comply with even the basics of credibility analysis, weight to treating source statements, the sequential evaluation process (among other systemic sins) has led to a log jam downstream, with ALJs blamed for backlogs that are systematically dumped onto their desks by capricious DDS practices.
Adjudication is one of least reliable ways to determine facts. Because SSA never asks serious questions about reliability and validly of its adjudication processes, we have to look elsewhere for examples. So, take for instance murder cases. Imagine our surprise when we learned from DNA evidence that so many of these decisions were wrong, some states had to suspend the death penalty. http://www.abavideonews.org/ABA340/
Work evaluation and job placement are not adjudication. They well-established vocational practices that get people back to work. There is no meaningful comparison to a work-oriented rehabilitation program and adjudication at SSA. Do you want face validity for relationship to work? Look at DVR placement statistics. There is no statistical counterpart at ODAR.
To be sure, DVR has been crapped on for decades when it comes to funding. It will take years to get the system up to speed, and full funding is a part of that process. There are Universities, such as U.W. Stout, which have excellent graduate programs for vocational rehabilitation. Funding of these graduate programs, including ramping up Rehabilitation Services Administration grants for tuition, would be extremely helpful for repopulating decimated DVR offices with qualified counselors.
One piece of data that you and I are missing, that should be attainable, are the statistics regarding adjudication and mediation at DVR office nationwide. Rather than rely upon anecdotal experience from one State, SSA could quickly determine the percentage of DVR cases that proceed to litigation. I'm guessing, but I'd be willing to bet you a nice donation of $100 to your favorite charity, that it is nowhere near the volume of adjudication that comes vomiting out initial applications at DDS offices around the USA, which in 2005 was 22 percent. (Not counting the people who wandered away, disabled, broke, and bewildered.)
See e.g.:
I know that readers of this site are heavily entrenched in the current adjudication framework. Some have never seen a different way of allocating benefits to the disabled, which leads to unintended tunnel vision. I have seen another way to allocate resources to the disabled. It worked, it had measurable outcomes, and it put people back to work. It's time to think bigger, better and brighter. There are, after all, lives at stake, as the families of the claimants who have died waiting for hearings at SSA will attest. This is not to say that you have tunnel vision, or that I am more dedicated towards a solution than you, or that I care more for those we serve than you. Consider it, if you will, a statement of my frustration and bewilderment at SSA's blind and unswerving reliance upon the wrong model. Thank you for you nice comments. _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
You can post new topics in this forum You can reply to topics in this forum You cannot edit your posts in this forum You cannot delete your posts in this forum You cannot vote in polls in this forum
Traverlaw, Traver Law, Traver Law Offices, S.C., Traver & Traver, S.C.,
Traverlaw.com, SSAConnect,
Attorneys for the disabled and disadvantaged in all areas of Social Security
disability law, http://traverlaw.com,
http://ssaconnect.com, Connect, SSA Connect, Think Bigger,
Social Security Advice Connect, Social Security Disability Advice Connect,
"Social Security Disability Advocacy, Debate, and Professional News,"
the yellow and orange swoosh image, and the square favicon.ico image,
are trademarks and service marks of Attorney David F. Traver.
For information the about use of our copyrighted and trademarked material please call
262-594-2096.
CONNECT
FAQ
Search
Register
Log in
