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

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 experts 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. 1362 IOWA LAW REVIEW [Vol. 102:1361 A. T HE H ISTORY AND I NCENTIVE B EHIND THE S OCIAL S ECURITY A CT ...................................................................................... 1364 B. T HE E VOLUTION OF THE S OCIAL S ECURITY A CT ...................... 1366 C. T HE P ROCESS FOR R ECEIVING SSI AND SSDI B ENEFITS ............ 1370 D. W EIGHING M EDICAL O PINIONS .............................................. 1373 III. ISSUES RELATED TO NON-SPECIALIST MEDICAL CONSULTANTS ............................................................................ 1375 A. T HE I MPORTANCE AND Q UALIFICATIONS OF M EDICAL C ONSULTANTS ...................................................................... 1375 B. I NHERENT I SSUES FOR N ON -S PECIALIST MC S .......................... 1378 1. Reduction in the Public’s Trust ................................. 1379 2. DDS Allowance Rate Inconsistencies ......................... 1381 C. A GGRAVATION OF THE I NHERENT I SSUES ................................ 1385 IV. SUGGESTIONS FOR IMPROVEMENT .............................................. 1388 A. S UB -S PECIALISTS AND R EGIONAL S PECIALISTS ......................... 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 E XPLANATION R EQUIREMENT AND D ATA A NALYSIS .......... 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 rate 4 —in 2014, the number of individuals receiving Social Security Disability Insurance (“SSDI”) benefits 5 and Supplemental Security Income (“SSI”) benefits 6 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. 1364 IOWA LAW REVIEW [Vol. 102:1361 reaching impacts on the SSA disability determination process, thereby decreasing those disparities and also mitigating against some of the public mistrust that the past few years of mismanagement have created. Part II of this Note provides background of the SSA and explains how it was created, considers the history behind SSDI and SSI benefits, and briefly explains how a basic SSA disability claim is processed under...