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PART I
THE PROBLEM OF PAIN
FOR THE
SOCIAL SECURITY
ADMINISTRATION
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The Sociopolitical
Background
of the Pain issue
n the Disability Benefits Reform Act of 1984, pain
. is singled out as a special problem for the Social
Security disability system. For the first time in the history of the
program, the legislation provides a statutory standard for the evalua-
tion of pain. To understand why Congress should fee] called on to
legislate in detail about the medical evaluation of pain, and what
concerns are behind the charge to the Institute of Medicine (IOM)
study committee, it is necessary to understand something of the
history of the Social Security disability programs and their place in
American social policy.
THE LEGISLATIVE BACKGROUND OF THE PAIN PROBLEM IN
DISABILITY INSURANCE
Disability insurance for the general population came relatively late
in the United States. Disability pensions for veterans began soon after
the Civil War. State workers' compensation schemes for on-thejob
injuries came into being in the first two decades of the twentieth
century. Railroad workers and federal, state, and municipal employees
typically had early and generous coverage. Professionals and white-
colIar workers could and did obtain commercial policies as early as the
1920s. In short, groups that were either politically well organized or
economically well off achieved some wage protection against disability
by the early part of this century. Yet the average person, who was either
not a member of one of these groups or was disabled by some reason other
then a work accident, was subject to a devastating Toss of income.
21
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22 THE PROBLEM OF PMN FOR THE SSA
Early History of Social Security Disability
Redistributive social programs and collective arrangements for
income security have always met with strong opposition in American
political culture, and disability insurance was no exception. It took the
Great Depression to provoke passage of the Social Security Act in
1935, providing old age pensions for workers and their dependents.
Disability insurance was not included, although by that time it was an
established part of the Social Security programs of other major
industrial countries.
Nevertheless, the Social Security program was supported by a
staunchly committed bureaucracy and a network of academic social
welfare specialists and labor union advocates. From the beginning,
they were determined to expand the program (Derthick, 19791. For
them, the worthiness of a broad Social Security program was never in
question; only the timing and nature of expansion was a matter of
debate. As early as 1935 President Roosevelt appointed a committee to
study the feasibility of including medical care and disability benefits.
In the following two decades, several citizen advisory councils, with
representatives from labor, business, and the public, were asked to
consider various aspects of federal disability insurance.
The early consensus of these experts and advocates was that,
although disability insurance was a socially desirable program in
principle, in practice its administrative difficulties and potential costs
would be so enormous that delay was the better part of wisdom.
Policymakers and planners understood that the crux of the problem
lay in the definition of disability. In its 1938 report, the Social Security
Board said
The extent to which costs would increase depends on the definition of disability
which could be made effective. If a fairly strict definition were adopted and
maintained, the board believes that additional costs would be kept within
reasonable limits. (Social Security Board, 1939)
An informal committee of the 1937 advisory council tried to come up
with a workable definition of disability. In an effort to constrain
a~ninistrative burdens, the council reluctantly concluded that mental
disability should be excluded from any program because it was too
difficult to determine (Berkowitz, 19761.
By 1948, when an advisory council recommended disability insur-
ance for the first time, program planners understood the likely prob-
lems of the program, because there had been considerable experience
with both private disability insurance and the federal government's
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THE SOCIOPOLITICAL BACKGROUND OF THE PAIN ISSUE 23
own War Risk Insurance program for World War ~ veterans. They
knew that disability insurance was difficult to administer, that a
program's scope and costs were dependent on the definition of disabil-
ity, that any program was likely to expand, that people tend to rely on
disability insurance in times of high unemployment, that the courts
would be a strong force for liberalizing the definition of disability, and
that any program would be sensitive to economic conditions, even if
the formal definition of disability were very strict (see Chapter 51.
The 1948 advisory council, whose report set the basic framework for
the future disability program, made clear that the definition of
disability would be the crucial mechanism for containing costs:
The definition of 'disability' used in a disability program will in large part
determine the feasibility of administration and the costs of the program. The
proposed definition is designed to establish a test of disability which will operate
as a safeguard against unjustified claims. (Advisory Council on Social Secur-
ity, 1948; emphasis added)
The underlying concern of the report was to prevent abuse of the
program. The report repeatedly discussed the need for "strict" tests to
eliminate the possibility of awards based on purely subjective percep-
tions of need. It is full of phrases conveying this concern: "strict test,"
"safeguard," "strict eligibility requirements," and "carefully circum-
scribed and restricted program."
The solution proposed by the 1948 advisory council, and the idea
that gave planners confidence in their ability to contain a disability
insurance program through definition, was to rely on a mecticai
determination of disability:
The Council recommends that compensable disabilities be restricted to those
which can be objectively determined by medical examination or tests. In this
way, the problems involved in the adjudication of claims based on purely
subjective symptoms can be avoided.... The danger of malingering which
might be involved in connection with such claims would thereby be avoided.
(Advisory Council, 1948; emphasis added)
The report went on to say that claimants would have to submit to
medical examinations and periodic reexaminations, and that benefits
should be terminated if a beneficiary refused to submit to medical
reexaminations.
In 1954, Congress passed a "disability freeze," which provided that
workers over age 55 who became totally and permanently disabled
before the age of 65 would not have to make Social Security contribu-
tions during the period of disability in order to remain eligible for an
old-age pension at age 65 (Berkowitz and Fox, 19861. The freeze was
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24 THE PROBLEM OF PIN FOR THE SSA
the equivalent of a waiver-of-premium provision in commercial insur-
ance. Although the 1954 nmen~nents represented a major change in
principIc a legal recognition of disability as an administrative cate-
gory in Social Security- the serious discussion of how to define and
determine disability did not occur until the next year, when the Senate
Finance Committee held hearings on a cash benefit program for the
disabled.
Physicians' Concerns About Medically Determined Disability
In the 1955 hearings, the possibility of objectively Staining
disability by medical examination was a major issue. Physicians from
virtually every state and national medical society, as well as from
many specialty societies, testified. They were overwhelmingly against
government involvement in medicine. More important, a substantial
bulk of physician testimony, and a significant reason for their opposi-
tion to disability insurance, had to do with the profession's belief that
physicians cannot determine disability on a purely "medical" basis.
On this technical objection to disability insurance, physicians mar-
shalled numerous arguments. They insisted that disability determina-
tion is inherently subjective and value-laden, and that honest physi-
cians could legitimately disagree about the existence of a person's
disability. They testified that "medicine Is not an exact science," that
disability is a social and psychological problem, and that judgments
about who should work are political, not medical, questions. As a
representative of the American Academy of General Practice put it:
Unfortunately, medical science has not reached the point of being able to
unerringly state whether or not a man is totally and permanently disabled....
Is the delivery boy who loses both legs totally and pe~-~'anently disabled? Or is
the certifying doctor supposed to point out that he can still run a drill press and
probably make more money? (Senate Finance Committee, 1956)
Physicians spoke from their experiences in certifying people for
other disability programs—commercial insurance, Workers' Compen-
sation, veterans benefits, civil service programs and concluded that
clinical definitions of disability are not workable. Skeptical congress-
men, those In favor of disability insurance, questioned why physicians
could not determine disability for the Social Security program if they
were already doing it for other programs. Physicians tried to illustrate
the problem by using specific examples, such as severe chronic head-
aches, backaches, heart disease, rheumatic disease and arthritis,
alcoholism and drug addiction, and neuroses. They explained that
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THE SOClOPOLlTIC~ BACKGROUND OF THE PIN ISSUE 25
these conditions are frequently but not always disabling, are the most
common bases of disability claims, and yet are also the hardest to
determine and verify clinically. To drive home the point, one doctor
cited a poll of heart specialists on the seemingly simple question of
whether President Eisenhower was "physically able" to serve as
President after his heart attack 114 said "yes," 93 said "no." Even
specialists on a particular disease had no answer to the problem of
determining work ability.
Beyond the technical impossibility of clinically defining and deter-
mining disability, physician testimony indicated other problems with
medical certification, problems that have a direct bearing on the pain
issue. They pointed out the destructive contradiction of a medical
system that simultaneously certifies people as totally disabled and
seeks to rehabilitate them. They voiced concern that the very process
of labeling a person as disabler; could weaken the motivation for
recovery and rehabilitation. They insisted that income awards on the
basis of disability would provide a financial disincentive to rehabilita-
tion, encourage malingering, arid educate people to see injuries as
opportunities for financial gain.
In addition, most physicians testified that the process of certifying a
patient's disability for a government program would be in conflict with
the physician's therapeutic relationship with that patient. Disability
certification for purposes of cash benefits required the physician to
mediate between the patients' and the government's interests. In such
gatekeeping roles, physicians would be "caught in a squeeze," and
forced to "serve two masters." Patients could and would simply shop
around for a doctor willing to provide evidence of their impairments,
and friends and family, as well as patients, would put unbearable
pressure on physicians, reducing their ability to make good clinical
judgments. Introducing such tensions into the doctor-patient relation-
ship would undermine its therapeutic electiveness (Stone, 19841.
Despite such testimony, Senator Alben Barkley of the Senate Fi-
nance Committee expressed a stubborn faith in medicine that was
shared by most of his colleagues:
I am not willing to concede that after all the years of experience and growth
and investigation and practice in the medical profession that they cannot with
some reasonable degree of certainty arrive at a medically determinable point
where a man is totally and permanently disabled. (Senate Finance Committee,
1956; emphasis added)
Thus, the Social Security Disability Insurance Program was built on
the dubious foundation of an old medical model of disease that was not
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26 THE PROBLEM OF PIN POR THE SSA
even fully accepted by the American Medical Association (AMA) at the
time. According to this model, disease always has an underlying
organic or anatomical basis, and "real" disease can be reliably identi-
fied by physicians through clinical techniques. This is a popular
conception of disease and medical knowledge that the medical profes-
sion by and large finds naive (see Chapter 10), but that drives public
policy. The medical model of disability became the core of the Social
Security program at its inception, and the mode] is reinvoked at every
attempt at program reform.
The Concept of Impairment
Central to the definition of disability, as well as to the current legal
controversy over the use of subjective evidence of pain in eligibility
determination, is the concept of impairment. Impairments are anatom-
ical, physiological, or psychological conditions that decrease a person's
ability to function, but are not necessarily related to work ability. For
example, a person may have reduced lung capacity as compared with
people of the same size, but may not be affected in work, social roles, or
activities of daily life. Only those impairments that preclude meeting
the physical or mental requirements of a job and thus cause an
inability to work are deemed disabilities. Both the medical profession
and Social Security administrators consider impairment a medical
phenomenon and disability an administrative/legal one. In theory,
physicians provide the program only with evidence about impair-
ments, and the program's own specialists in disability determination
provide the administrative/legal determination of disability.
In 1958, the AMA, through its Committee on the Medical Rating of
Physical Impairment, began producing"Guides to the Evaluation of
Permanent Impairment." For its purposes, the Social Security Admin-
istration's (SSA) Division of Disability Operations developed a "List-
ing of Medical Impairments," which would automatically qualify
people for the program. The expectation was that most awards would
be made on the basis of these listings, but there was also a provision for
people who did not "meet" the listings (i.e., did not have exactly the
conditions described) but who "equaled" the listings (i.e., had condi-
tions with equally incapacitating results). An advisory committee of
outside medical consultants also suggested that certain nonmedical
factors would have to be considered in some cases: age, education,
training, experience, and other individual factors (see Chapter 31.
Both the AMA's guides and the SSA's listings envisioned an entity
called "impairment" that was located in the individual and demonstra-
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THE SOCIOPOLITICAL BACKGROUND OF THE PAIN ISSUE 27
ble by medical tests. The notion of purely functional impairment,
totally independent of context, is described in the AMA Guides:
permanent impairment cannot vary because of the circumstances of its occur-
rence or the geographic location of the patient at the time. Furthermore, unlike
disability, permanent impairment can be measured with a reasonable degree
of accuracy and uniformity on the basis of impaired function as evidenced by
loss of structural integrity, pathological findings, or pain substantiated by
clinical evidence. (American Medical Association, 1960; emphasis added)
Henry Kessler, a prominent member of the AMA committee and
developer of a widely used disability evaluation system, later wrote
Clearly, so long as the objection e is strictly limited to accurate description of the
damage, the medical "factor" remains distinct from all else and can be reduced
to a scientific procedure of unquestionable validity. (Kessler, 1970; emphasis
added)
This concept of a distinct medically identifiable impairment within
individual anatomical, physiological, or psychological makeup and
totally independent of social, economic, or geographic context is at the
root of the current problem with cases that turn principally on the
applicant's pain. As discussed in Chapter 10, a broad biopsychosocial
model is needed to understand chronic pain. A narrow biomedical
mode] is inadequate because, notwithstanding enormous increases in
our understanding of the physiological mechanisms of pain and our
ability to map the pathways of transmission of neural impulses, many
types of pain simply cannot be explained biologically or documented
with physiological techniques (see Chapter 71. Furthermore, physiol-
ogy cannot tell us how neural impulses are interpreted by the individ-
ual or how the complex interplay of social, cultural, economic, psycho-
logical, and physiological factors shape the pain experience.
The SSA uses its concept of impairment as a proxy test for motiva-
tion to distinguish those who cannot work from those who will not
work. An impairment is supposed to be a condition beyond a person's
control that prevents the person from working. As such, an impair-
ment is considered prima facie evidence of a genuine inability to work.
Thus, the distinction between objective and subjective evidence of
impairments is crucial. The Social Security program has always been
guided by the principle that every impairment in the listings, and
every award of benefits, must be verified by objective evidence.
Clinical medicine has traditionally distinguished between "symp-
toms" and "signs," symptoms being sensations or observations percep-
tible to and reported by the patient, and signs being the manifestations
of disease or abnormalities observable by the physician. It is commonly
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28 THE PROBLEM OF PIN FOR THE SSA
believed that whereas the presentation of symptoms can be manipu-
lated by the patient, signs and laboratory findings are not amenable to
manipulation. Thus, in developing the medical listings, the SSA
sought to build them on signs and laboratory findings rather than on
symptoms. Early program regulations stated
There should be evidence that medically ascertainable anatomical, phys~olog-
ical, biochemical or psychological aberrations exist. Allegations of inability to
work as a result of impairment such as dyspnea, pain, lack of musculoskeletal
function, decreased vision or hearing, decreased memory, etc. should be shown
to result from structural physiological or psychological changes which can be
identified by the use of clinical and laboratory diagnostic techniques. An
alleged impairment is medically determinable only if it can be verified by the use
of clinical and laboratory techniques. (Code of Federal Regulations 404.1510
(a), 1961; emphasis added)
The notion that all impairments should be verifiable by objective
evidence is administratively necessary for an entitlement program.
Yet this notion is fundamentally at odds with a realistic understand-
ing of how disease and injury operate to incapacitate people. Except for
a very few conditions, such as the loss of a limb, blindness, deafness,
paralysis, or coma, most diseases and injuries do not prevent people
from working by mechanical failure. Rather, people are incapacitated
by a variety of unbearable sensations when they try to work.
This fundamental problem with the concept of impairment was first
articulated by William Roemmich, M.D., the Chief Medical Officer of
the Social Security Disability Insurance (SSDI) program for 15 years,
who stated
Most diseases which we encounter in our program prevent work because they
produce in man an uncomfortable sensation when he works. These sensations
are dyspnea, pain, fatigue, or a combination of all three.... There are no
biological techniques at present which can measure dyspnea, pain or fatigue.
There are biological sequelae of physical exercise in health and disease, but so
far these have defied predictable patterns. (Roemmich, 1961; emphasis added)
Thus, pain is a major problem for the disability program because it does
not fit the medical mode] of impairment on which the program rests.
Disability and the Labor Market
In addition to problems with the medical mode] of impairment, the
program has been subject to periodic swings in its congressional man-
date from demanding a strict, tightly controlled program based on
medical identification of the permanently and totally disabled, to de-
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THE SOClOPOLITIC~ BACKGROUND OF THE PEN ISSUE 29
mending a program more sensitive to the social and economic realities of
the labor market, including job opportunities for people with partial
disabilities.
By 1958 it was clear to program officials that medical conditions
and other reasons for unemployment interacted in a complex way.
Employer hiring practices, technological changes in an industry, and
local or cyclical business conditions all might conspire to keep the
person with a medical problem from being hired or retained. Congress-
men, too, were aware of the complicated relationship between disabil-
ity and unemployment, and a major oversight report of the House
Ways and Means Committee in 1960 (the "Harrison Subcommittee
Report") pushed the SSA away from its purely medical concept of
impairment:
It is essential that there be a clear distinction between this program and one
concerned with unemployment.... The Department fof HEW] should make a
thorough study of this situation to see if criteria con be developed which retain
the basic emphasis of the program on major medical impairment but at the
same time allow for a more realistic assessment where there are multiple bars
to employment, e.g. age, employer bias in hiring, and other factors that limit Job
opportunity. (House Ways and Means Committee, 1960; emphasis added)
In the same year, a major appeals court ruling did what the Harrison
subcommittee had asked for. Werner v. Flemming was brought by a
man who had held a variety of jobs as a carpenter, mechanic, furniture
repairman, and salesman and who now suffered from a cardiac condi-
tion, diabetes, and anxiety. He acknowledged that he was able and
willing to do light, sedentary work, but he was unable to obtain a job
because of his medical history. The SSA denied his claim, on the
grounds that he was in fact able to engage in substantial gainful
employment. The appeals court, however, held that the "mere theoret-
ical ability to engage in substantial gainful employment is not enough
if no reasonable opportunity for this is available" (Kerner v. Flemming,
19601. In the next few years, the courts tended to liberalize eligibility
criteria by showing an increased willingness to allow consideration of
the job market, the applicant's occupation and experience, and the
likelihood of he or she getting a job in his or her home state.
In 1967, Congress responded to Werner v. F7,emming and what it
perceived as a judicial attack on the program's boundaries with a new
set of tightening amendments. A person would be considered disabled
only if, because of physical or mental impairments,
he is not only unable to do his previous work but cannot, considering his age,
education and work experience, engage in any kind of substantial gainful work
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30 THE PROBLEM OF PAIN FOR THE SSA
which exists in the national economy, regardless of whether such work exists in
the immediate area where he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work. (Social Security Act
Amendments of 1976, sec. 223(d)~2~(a); emphasis added)
Yet the courts continued to construe the law liberally, and the program
began to grow rapidly.
The number of applications per year increased by approximately 80
percent from 1969 to 1974 (from 725,000 to more than 1,300,000~; the
number of new awards per year increased by about 50 percent during
the same period (Senate Finance Committee, 19821. Observers have
speculated about many reasons for this growth, in addition to judicial
liberalization. Analysts within the SSA's Office of Research and
Statistics cite increased public awareness of the program, especially
after the passage of SST in 1972 (:Lando and Krute, 19761; increases in
SST benefit levels relative to predicability earnings (Lando et al.,
1979~; and a decline in the rate of terminations due to recovery,
rehabilitation, or return to work (Treitel, 19791. The General Account-
ing Once blamed the growth on the SSA's lax oversight of the state
disability determination agencies, inadequate case-processing stan-
dards, insufficient quality review procedures, and a lack of standards
for obtaining consultative examinations (General Accounting Office,
1976, 1978, 1979).
Whatever the reasons for growth, the program just as inexplicably
began to contract in 1975. The number of new applications dropped,
annual new awards declined, and the rate of allowances, which had
never been below 40 percent between 1969 and 1974, fell to 33 percent
by 1979 (Senate Finance Committee, 19821.
Although the growth had already slowed, Congress passed amend-
ments in 1980 mandating more intensive periodic review of benefi-
ciaries already on the rolls: "continuing disability investigations"
(CDIs). The SSA followed its mandate and terminated benefits for
about 500,000 people between 1981 and 1983. The terminations stimu-
lated thousands of legal appeals, mobilized an advocacy network of
lawyers and claimants' representatives, provoked constituency pleas to
congressmen and congressional pleas to the SSA, and generated a great
deal of adverse publicity. Eventually 290,000 of the terminated claimants
(almost 60 percent) were reinstated. Congress was pressured by advo-
cacy groups, constituents, and state governments (29 of which had
directed] their disability determination services to stop conducting CDI
reviews in accordance with SSA policy~to swing the other way
(Mashaw, 19851.
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THE SOClOPOLITIC~ BACKGROUND OF THE PEN ISSUE 31
The 1984 Amendments
In the 1984 Disability Benefits Reform Act, Congress sought once
more to protect the program with the traditional safeguard: medical
criteria. The amendments called for the development of better medical
criteria in three areas that had been the source of controversy in many
of the appeals. The first area was mental disability, in which the CD]
reviews had been concentrated. The amendments called for the SSA to
create a new listing of mental impairments. The second area was a new
"medical improvement standard," which would protect beneficiaries
from being terminated unless the SSA could demonstrate that they
had shown medical improvement. The third area was pain, a symptom
that had led to a multiplicity of conflicting and confusing court
decisions (see Chapter 35.
The nature and scope of the current problem with pain cases in the
Social Security program remains unclear. As is discussed in more
detail in Chapter 4, controversy over pain cases is manifested in the
courts, in the SSA's nonacquiescence policy, in Congress' attempt to
legislate a pain standard in the 1984 amendments, and in the calls for
a pain commission and for this study by the TOM.
Two possible problems posed by the pain cases should be distin-
guished. One problem could be that too many people who are really
able to work are getting onto the rolls and/or that too many people who
are genuinely incapacitated by pain are denied eligibility. The other
problem might be that regardless of correctness, decisions on dispro-
portionate pain cases are so inconsistent across judicial circuits, and
across the various levels of administrative and judicial review, that the
system is perceived as violating norms of fairness. It is possible to
remedy the second problem without affecting the first (e.g., by legis-
lating a national standard, as Congress did in the 1984 amen~nents).
It is too soon to judge the effects of the 1984 legislation, but it may
represent progress. A successful resolution of the consistency problem
could substantially reduce the political controversy over pain, without
restructuring the current SSDI program.
DISABILITY, PAIN, AND DISTRIBUTIVE JUSTICE
All societies have two distributive systems, one based on work and
the other on need. Both systems are necessary: distribution according
to work in order to ensure economic production and stimulate produc-
tivity, and distribution according to need in order to preserve commu-
nity, express compassion, and help ensure human survival. Yet these
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32 THE PROBLEM OF PIN FOR THE SSA
systems coexist in an uneasy tension. The two principles tend to
undermine each other. The policy problem for any society is to decide
when the normal work-based rules of distribution should be suspended
and some form of social aid should take over.
To solve this problem, a society needs rules to determine who
belongs in each system. The rules must express culturally legitimate
rationales for not working. They must use criteria susceptible to
external validation, because their purpose is to distinguish those who
cannot work from those who will not work. In addition, the rules must
be sufficiently restrictive to preserve the dominance of the work-based
system.
The modern welfare state has adopted a categorical resolution ofthis
problem. A person fitting into one of the categories is automatically
entitled to aid, without a further showing of inability to work.
Typically, the categories are childhood, old age, survivorship, illness,
and disability. Three of the categories are relatively straightforward
childhood, old age, and survivorship. To determine whether someone
fits these categories is a very simple matter, because age (for childhood
and old age) and death (for survivorship) are easily determined. IlIness
is more problematic. Not only is it more difficult to define and count,
but the issues of what services a person really needs, and what the
public ought to pay for, are increasingly contentious.
Most problematic is disability, because it concerns the relation
between an individual's physical or mental condition and his or her
ability not only to work, but also to be hired despite limitations.
Moreover, although injury and disease have always evoked sympathy
and charity, they have also long been suspect, precisely because they
excuse people from traditional obligations such as working. Injure and
illness are perceived as more easily feigned than age or other condi-
tions that qualify for social aid.
Thus, although eligibility for disability insurance appears to be a
matter of medical determination, it really concerns the fundamental
question of who deserves social aid. Societies construct definitions to
implement their own concepts of fairness, and even within a society
the definitions change over time. In short, definitions of disability have
strong cultural connotations and reflect the politics and history of their
national context.
In the major program of the United States, the SSDI program,
disability is defined as the inability to earn a fixed amount of
money (about $300 a month) in any job that exists in substantial
numbers in the entire national economy, regardless of whether there
is a job the person can do in his or her community and regardless
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THE SOClOPOtITIC~ BACKGROUND OF THE PIN ISSUE 33
of whether that person would be hired. (It was not until 1967 that
age, education, arid training began to be factored into determina-
tions.) The inability to work must be due to a physical or mental
· .
mpa~rrnent.
This very stringent definition expresses the dominant American
ethos of the primacy of work. It reflects the Tong-standing American
political tradition of minimizing the redistributive role of government.
It expresses our "frontier spirit" to think it appropriate to ask people to
uproot themselves and move around in search of work. Finally, the
insistence on medical "proof" as a prerequisite for insurance benefits
expresses our faith in the ability of science to resolve what are
fundamentally issues of justice and politics.
One aspect of the disability definition in the Federal Republic of
Germany highlights the different ways in which countries impart
meaning to the concept. Like its American counterpart, the West
German Social Security disability program relies on physical and
medical impairments as the basis for awarding benefits. Yet it defines
disability as an inability to earn a fixed amount of money (much higher
than the American amount) by doing one's previous job or any other
job that corresponds to one's education and capabilities and that does
not entail a significant decline in social status (Weaner, 19861. This
definition recognizes that jobs provide both income and a social
identity- they locate people in a hierarchy of prestige. Class has
always been a legitimate criterion in German social policy and
political discourse.
The definitions used for public and private employees in the Neth-
erIands illustrate two more aspects of the cultural components of
disability. There, a person is disabled if he or she is unable to earn what
similarly trained healthy people earn in the same community by
working at the place where the person last worked or in a similar place.
This definition expresses the idea that what matters about the stan-
dard of living is one's means relative to others. In addition, it deems
legitimate individuals' rootedness in communities.
This national variety in the definition of disability for public
programs illustrates that societies have a great deal of choice about
how they define disability and that the definitions express very
different cultural notions of justice. In contemplating refinements of
disability definitions, consideration must be given to the broader
implications for justice that such definitions hold.
The 1984 Disability Benefits Reform Act, like most legislative
reforms of SSDI, relied on more refined medical criteria to determine
eligibility in controversial cases. Yet as efforts to improve the fairness
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34 THE PROBLEM OF PMN FOR THE SSA
of the Social Security disability programs by refining the medical
standards were undertaken, there was a major change in how disabil-
ity was understood outside the Social Security program. Beginning in
the late 1960s, many people (including some disabled people) began to
see disability as a civil rights issue. Physical and mental handicaps are
viewed as conditions likely to lead to discrimination, especially in the
labor market, but also in housing, transportation, education, and other
services and opportunities.
This understanding of disability has been given a great deal of
recognition in other areas of public policy. Most notably, Section 504 of
the Rehabilitation Act of 1973 seeks to protect people with handicaps
against discrimination in the workplace. This legislation offers a
striking contrast to the SSA's definition of disability. Section 504
defines a person as handicapped who:
· has a condition that substantially limits his or her employment;
· has a record of such a condition; or
· is perceived as having such a condition.
The definition acknowledges that in addition to actual bodily condi-
tion, work disability is as much a function of how a person is regarded
and treated by others (especially by employers). By contrast, the SSA's
definition fails to recognize the real barriers to employment of disabled
people. Elaboration of more precise medical criteria, for pain or any
other condition, will not deal with this problem.
The issue of eligibility criteria for claimants who experience dis-
abling pain that is not medically verifiable or that is disproportionate
to clinical findings of disease or injury raises some other questions of
distributive justice as well. Indeed, the difficult questions about pain
cases are simply specific instances of the larger questions of justice
surrounding the program:
· Does a person have a legitimate reason to receive social aid? Is he
or she "deserving?"
· How badly off does someone have to be before society should help?
· Do we give equal recognition to equivalent kinds of suffering?
In SSA disability claims in which pain is the chief disabling
condition, these questions become more specific: Does the claimant
"really have" pain? How much pain is necessary to prevent a person
from working, or how much pain should a person be expected to
tolerate? In addition, should we expect all people to tolerate the same
degree of pain? Even if we could measure pain precisely and be
confident that interpersonal comparisons about degrees of pain were
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THE SOClOPOLITIC~ BACKGROUND OF THE PEN ISSUE 35
valid (neither of which we can Lessee Chapters 7 and 11), the issues
of distributive justice would remain.
Every distributive program will make errors, because distributive
justice is not a matter of technically correct criteria. There will always
be disputes over political and moral judgment. Even if all the errors of
technical misclassification could be eliminated, disputes over moral
judgments (i.e., Does this person deserve aid?) would remain. All
distributive programs go through cycles of political controversy in
which they are accused of making too many errors (of either stringency
or leniency), resulting in reforms introduced to target aid more
"efficiently" to the truly needy. Furthermore, because the Social
Security program makes hundreds of thousands of decisions involving
a combination of medical, social, economic, and psychological factors,
misclassification errors are inevitable. The pursuit of technical accu-
racy should not blind us to the program's other goals: rendering justice,
making speedy decisions, being understandable to claimants, and
maintaining an entitlement rather than an adversarial climate.
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36 THE PROBLEM OP PAIN FOR THE SSA
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Representative terms from entire chapter:
emphasis added
