The Importance of Specialist Medical Consultants in the SSA Disability Determination Process: Analysis and Proposals

Author:Clare J. Horan
Position:J.D. Candidate, The University of Iowa College of Law, 2017; B.A., Smith College, 2012
Pages:1361-1396
SUMMARY

This Note examines the use of medical experts in the disability determination process for the Social Security Agency's ("SSA") two primary disability programs: Social Security Disability Insurance ("SSDI") and Supplement Security Income ("SSI"). Specifically, this Note focuses on the use of medical consultants at the initial disability determination level and considers how the lack of medical... (see full summary)

 
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1361
The Importance of Specialist Medical
Consultants in the SSA Disability
Determination Process: Analysis and
Proposals
Clare J. Horan*
ABSTRACT: This Note examines the use of medical experts in the disability
determination process for the Social Security Agency’s (“SSA”) two primary
disability programs: Social Security Disability Insurance (“SSDI”) and
Supplement Security Income (“SSI”). Specifically, this Note focuses on the use
of medical consultants at the initial disability determination level and
considers how the lack of medical specialty among these consultants
contributes to the inconsistencies among state Disability Determination
Services (“DDSs”) and Administrative Law Judges (“ALJs”). As a result, this
Note argues that the medical consultants used at the initial disability
determination process lack the necessary, specialized medical knowledge to
adequately and quickly process the increasing number of SSI and SSDI
applications each year. Because these medical consultants are extremely
important in the initial disability determination phase, the SSA should make
specific efforts to train the consultants already employed by the DDSs in
particular medical areas and should make medical ex perts more readily
available at the DDS and ALJ levels of review. Alternatively, this Note
proposes that the SSA should collect and analyze its data regarding medical
consultants and should update its regulations to require DDSs and ALJs to
better explain their use of medical experts in their disability opinions so that
the issue can be better observed and recorded.
I. INTRODUCTION ........................................................................... 1362
II. BACKGROUND ............................................................................. 1364
*J.D. Candidate, The University of Iowa College of Law, 2017; B.A., Smith College, 2012.
I would like to thank the staff of Volumes 101 and 102 of the Iowa Law Review for their help in
developing and editing this Note, specifically Tessa Register for her fantastic suggestions; to Anna
Luberoff for her continued support during the many stages of this Note; and finally to my mother
for her excellent, patient medical discussions, and my father for his continued lessons, both in
life and in the law.
N3_HORAN (DO NOT DELETE) 2/22/2017 11:34 AM
1362 IOWA LAW REVIEW [Vol. 102:1361
A. THE HISTORY AND INCENTIVE BEHIND THE SOCIAL SECURITY
ACT ...................................................................................... 1364
B. THE EVOLUTION OF THE SOCIAL SECURITY ACT ...................... 1366
C. THE PROCESS FOR RECEIVING SSI AND SSDI BENEFITS ............ 1370
D. WEIGHING MEDICAL OPINIONS .............................................. 1373
III. ISSUES RELATED TO NON-SPECIALIST MEDICAL
CONSULTANTS ............................................................................ 1375
A. THE IMPORTANCE AND QUALIFICATIONS OF MEDICAL
CONSULTANTS ...................................................................... 1375
B. INHERENT ISSUES FOR NON-SPECIALIST MCS .......................... 1378
1. Reduction in the Public’s Trust ................................. 1379
2. DDS Allowance Rate Inconsistencies ......................... 1381
C. AGGRAVATION OF THE INHERENT ISSUES ................................ 1385
IV. SUGGESTIONS FOR IMPROVEMENT .............................................. 1388
A. SUB-SPECIALISTS AND REGIONAL SPECIALISTS ......................... 1388
1. Sub-Specialists Overview ............................................. 1388
2. Sub-Specialists Training .............................................. 1389
3. Sub-Specialists and Regional Specialists .................... 1390
4. Sub-Specialists: Advantages ........................................ 1391
B. ALJ EXPLANATION REQUIREMENT AND DATA ANALYSIS .......... 1394
V. CONCLUSION .............................................................................. 1396
I. INTRODUCTION
The Social Security Administration (“SSA”)1 is both one of the largest
governmental agencies in the United States,2 and also one of the most
economically and administratively dysfunctional.3 Although some of the SSA’s
1. When I refer to the SSA throughout this Note, I am referring to the federal
governmental body that administers both Social Security Disability Insurance (“SSDI”) benefits
and Supplement Security Income (“SSI”) benefits to disabled Americans.
2. In 2015, “65.1 million people received benefits from” an SSA-administered program.
SOC. SEC. ADMIN., PUB. NO. 13-11785, FAST FACTS & FIGURES ABOUT SOCIAL SECURITY, 2016, at ii
(2016), https://www.ssa.gov/policy/docs/chartbooks/fast_facts/2016/fast_facts16.pdf.
3. 166 million people contributed to Social Security in 2014. See Drew DeSilver, 5 Facts About
Social Security, PEW RES. CTR.: FACT TANK (Aug. 18, 2015), http://www.pewresearch.org/fact-tank/
2015/08/18/5-facts-about-social-security. Regardless of this large support, it is estimated that by 2016,
the Disability Insurance Trust Fund Reserves (which provides for SSDI benefits) will be depleted, “at
which time continuing income to the DI Trust Fund would be sufficient to pay 80 percent of DI
benefits.” THE BD. OF TRS., FED. OLD-AGE & SURVIVORS INS. & FED. DISABILITY INS. TR. FUNDS, THE 2013
ANNUAL REPORT OF THE BOARD OF TRUSTEES OF THE FEDERAL OLD-AGE AND SURVIVORS INSURANCE AND
FEDERAL DISABILITY INSURANCE TRUST FUNDS 1, 2, 4, 22 (2013), https://www.ssa.gov/oact/tr/2013/
tr2013.pdf. Additionally, Social Security’s cost exceeded both its tax income and its non-interest
income in 2013, which it has done since 2010. Id. at 3. This trend is expected to continue through
2017] SPECIALIST MEDICAL CONSULTANTS 1363
more conspicuous failings have been well documented and adequately
criticized—such as the enormous backlog of cases or the astronomical
Administrative Law Judge (“ALJ”) disability allowance rate4—in 2014, the
number of individuals receiving Social Security Disability Insurance (“SSDI”)
benefits5 and Supplemental Security Income (“SSI”) benefits6 was higher than
ever. Additionally, new SSDI recipients received higher monthly payments
than those individuals already receiving benefits.7
In recognition of what appears to be the nadir of the SSA’s public
standing among taxpayers, Congress, disability claimants, and the general
public, this Note considers a smaller-scale issue arising under the SSA
regulations: the specialty (or lack thereof) of medical consultants (“MCs”),
primarily at the preliminary Disability Determination Services (“DDS”) level.
By principally examining the beginning of the SSA disability process, rather
than the later and more politically charged ALJ hearing process, this Note
illustrates the inherent problems with having non-specialized MCs
performing what can often become medically sophisticated disability
determinations. Specifically, the lack of specialized MCs seriously diminishes
the public’s trust in the accuracy of the disability determination process, while
also creating unacceptable disparities in determination decisions across the
country so that a person’s chance of receiving benefits largely depends on
where they live. This Note demonstrates that requiring DDS MCs to be
specialists in the area of the claimant’s impairment will have positive, far-
2022. Id. As for SSI benefits, it is “project[ed] that SSI program outlays will increase to $60.8 billion in
2039, a real increase of 0.5 percent per year” and that “[b]ecause DI and OASI benefit receipt affect
SSI program eligibility and payment amounts, trust fund reserve depletion has the potential to increase
cost for the SSI program.” SOC. SEC. ADMIN., ANNUAL REPORT OF THE SUPPLEMENTAL SECURITY INCOME
PROGRAM 6, 27 (2015), https://www.ssa.gov/oact/ssir/SSI15/ssi2015.pdf.
4. See, e.g., PERMANENT SUBCOMM. ON INVESTIGATIONS, U.S. SENATE, SOCIAL SECURITY
DISABILITY PROGRAMS: IMPROVING THE QUALITY OF BENEFIT AWARD DECISIONS 14, 14 n.32 (2012),
https://www.hsgac.senate.gov/download/report-psi-minority-staff-report_-social-security-disability-
programs-improving-the-quality-of-benefit-award-decisions (noting that in a 2011 review, the SSA
found that 22% of the hearing decisions had to be remanded for inaccuracy); Richard J. Pierce, Jr.,
What Should We Do About Social Security Disability Appeals?, 34 REG., no. 3, 2011, at 39 (arguing that the
ALJs for the SSA should be eliminated because they consistently grant far too many SSA disability claims
on appeal and cost the SSA upwards of $2 billion per year in unnecessary salaries); David Fahrenthold,
The Biggest Backlog in the Federal Government, WASH. POST (Oct. 18, 2014), http://www.washingtonpost.
com/sf/national/2014/10/18/the-biggest-backlog-in-the-federal-government (detailing how the ALJ
hearing office is 990,399 cases behind).
5. In December 2014, 10,261,268 individuals received SSDI benefits. SOC. SEC. ADMIN., PUB.
NO. 13-11826, ANNUAL STATISTICAL REPORT ON THE SOCIAL SECURITY DISABILITY INSURANCE PROGRAM,
2014, at 11 chart 1 (2015), https://www.ssa.gov/policy/docs/statcomps/di_asr/2014/di_asr14.pdf.
6. In January 2016, 8.3 million individuals received SSI benefits averaging $542 per
month. U.S. SOC. SEC. ADMIN., ANNUAL REPORT OF THE SUPPLEMENTAL SECURITY INCOME
PROGRAM 2 (2016), https://www.ssa.gov/oact/ssir/SSI16/ssi2016.pdf.
7. In 2015, the average monthly payment for a newly disabled worker was $1,270 per
month while an individual already receiving SSDI benefits received an average of $1,166 per
month. SOC. SEC. ADMIN., supra note 2, at 16.

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