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4 Conflicts and Contradictions in the Disability Program A s discussed in Chapter 2, multiple forces co- AaTesced to produce the Social Security disability program, and many participants at several levels are responsible for determining eligibility for the program. Multiple forces continue to operate, some working to keep the program within its established boundaries and others pushing against these boundaries, such that there is continual tension among various elements within the program as well as between various external forces and the program (Stone, 19841. This chapter examines the tensions and inconsistencies among the statutory, regulatory, medical, judicial, and programmatic perspec- tives on disability, highlighting those aspects that relate most directly to the claimant whose chronic pain is not fully substantiated by objective clinical evidence. By so doing it further elucidates the complexities of the issues and provides a more complete context for drawing conclusions about the way in which chronic pain complaints are evaluated in the program and for making recommendations for changes. There are at least four major reasons why disability determinations will always be subject to differences of opinion and will always contain an important element of subjectivity. First, disability is a complex phenomenon. The inability to work is determined not simply by anatomy, physiology, or mental status, but also by the interplay of these factors with an individual's education, work experience, psycho- logical predispositions, social situation, and the available fob opportu- nities. Judgments based on a combination of so many factors are necessarily open to wide variation. 66

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CONFLICTS ~D CONTRACTIONS 67 Second, some of the inconsistencies in how the statutes and regula- tions are interpreted and applied to individual cases clearly derive from the number of people and offices involved at various levels of review. There are more than 1,300 district and branch offices with more than 19,000 people to help claimants complete the proper forms to file their claims. The actual initial and reconsideration decisions are made in more than 100 offices across the country by about 4,300 disability examiners and 1,400 physicians under contract to the Social Security Administration (SSA). For those cases that are appealed there are more than 130 hearing offices with approximately 700 administrative law judges (ALds) and as many or more decision writers to assist them. The 20-member Appeals Council is assisted by 324 analysts. Federal quality review of disability decisions is carried out in 10 SSA offices by more than 500 examiners and medical consultants. Finally, there are the federal district courts. With so many people involved in making decisions about anything, there are bound to be inconsistencies, even if the nature of the decisions were relatively objective. In determining eligibility for disability benefits, even the most carefully delineated standards and decision-making rules cannot eliminate all of the inconsistencies because there will always be an element of human judgment required. Third, some of the inconsistencies and tensions derive from differ- ences in the institutional perspectives of the various participants in the decision-making process, either because of the nature of their stake in the decision or because of their disciplinary training and biases. For example, program administrators are likely to have a very different set of goals and underlying rationales for their behavior than physicians, who are oriented to serving their patients/clients (Mashaw, 19831. Thus, although the basic rules are the same at all levels of review, the perspectives of the participants and the nature of the evidence at each level differ enough to cause inconsistencies. Thus, tensions are created among the various levels and between the SSA and Congress. Finally, in determining eligibility for disability the basic decision is inherently value laden: to what extent does this claimant deserve social aid? No matter how much we try to reduce this question to well-specified medical and vocational criteria, the moral dimension remains. "[T]he question in the end is a value conflict about the distribution of resources. The question is not just what the claimant's skills, impairments, experience, and so forth are, but whether persons with that particular set of characteristics ought to have access to public support" (Mashaw, 19831. In recent years there has been considerable discussion, especially in the health insurance arena, about the role of

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68 THE PROBLEM OF PMN FOR THE SSA personal responsibility and eligibility for benefits. Some people believe that certain potentially health-compromising behaviors, such as smok- ing, should be cause to charge higher premiums or even to deny coverage for health problems associated with those behaviors. In the disability arena, too, some people believe that certain individuals inflict problems on themselves or that they can control their problems. Alcoholism, drug addiction, and other mental health problems are sometimes viewed in this way, as are incapacitating symptoms in the absence of clinical signs of disease. At one end of the spectrum of value-laden opinion, some people believe that individuals suffering from these problems should be excluded from receiving benefits. At the other end of the spectrum is the view that personal responsibility for one's disabilities is irrelevant to the need for benefits, and that decisionmakers should base determinations on the current status and capacity of the individual, without regard for the cause and etiology of any condition. CONGRESS AND THE SOCIAL SECURITY ADMINISTRATION The SSA is a bureaucratic entity whose existence and jurisdiction has been mandated by Congress. Like other agencies, its job is to implement government programs fairly through the agency functions of investigation, rulemaking, and adjudication. Although Congress establishes the parameters of bureaucratic activity in statutes, the agencies develop the rules and regulations by which the program mission is to be carried out. The policy implementation role of agencies requires interpreting and translating congressional intent into workable administrative policies and procedures that can be applied to individual cases through adjudication. In executing these functions, there is often room for agencies to exercise their own discretion. In the case of the authorizing statute for the disability program, Congress linked medical condition to employability but did not distinguish clearly between those who cannot perform work functions because of their conditions and those who might be able to work but are unemployable because of their conditions (Mashaw, 19831. Thus, interpretation of the statute, coupled with the necessarily pragmatic orientation of those charged with developing administrative guidelines for the day-to-day program op- eration, may result in agencies viewing or carrying out their missions somewhat differently than Congress intended (Cofer, 19851. Periodically Congress chastises the SSA for awarding too many claims and for allowing too much subjectivity into the decision-making

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CONFLICTS ED CONTRADICTIONS 69 process. Yet the statutory definition of disability is ambiguous enough to allow many interpretations. Furthermore, at every step in the decision-making process, judgments are called for an element of human judgment is built in. Mashaw (1983) notes that the judgments become more and more discretionary as one moves through the sequential evaluation from "meets the listings" to "equals the listings" and on to the assessment of vocational criteria. The listings themselves contain a mixture of objective standards ("fixation of the spine at 30 or more from neutral position"), criteria requiring some judgment ("ab- normal apophyseal articulations as shown by x-ray" [emphasis added]), and highly discretionary criteria ("appropriate sensory or motor Toss" Lemphasis added]~. There was very substantial growth in the proportion of disability awards made on the basis of the more judgmental categories between 1960 and 1975 (going from about 30 percent to 70 percent of awards being based on "equals" the listings and vocational factors (Subcommittee on Social Security, 19761; after 1975 the trend reversed, and today about half the awards are based on these categories). The increased reliance on discretionary criteria paralleled the growth in the disability program's expenditures during the same period, and hence became an easy target for criticism of the SSA by Congress. Other factors that have influenced both the overall increase in applications and awards and the basis for them include population growth (particularly among the elderly) and rising unem- ployment rates that make it more difficult for marginally disabled people to find jobs (Heaney, 1984; Howards et al., 19801. TENSIONS WITHIN THE PROGRAM Medical Definitions Versus Functional Concept Within the disability program itself there are two major sources of tension. The first stems from the fact that medical evaluations are relied on to draw conclusions about work capacity. The "listings" discussed in Chapter 3 are essentially medical diagnoses and clinical findings, and most of the evidence used to determine eligibility for disability benefits is medical. A presumption about occupational fit- ness and employability is made by program a~ninistrators based on data provided by physicians, usually in the absence of an actual assessment of work-related functional capacities. As discussed in subsequent chapters of this report, there is substan- tial individual variation in terms of tolerance for pain and other symptoms and in terms of the amount and nature of dysfunction

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70 THE PROBLEM OF P~N FOR THE SSA caused by the same level and severity of symptoms. Many factors interact in complex ways to influence individual tolerance, motivation, and functional capacities such that some people are able to work in the face of severe symptoms and others are unable to work when con- fronted with less severe symptoms. Thus, the presumption of a simple relation between medical signs and symptoms on the one hand and the ability to work on the other will always result in some errors of judgment. Some people who can work will be found eligible for disability benefits and some who cannot work will be denied benefits. Income Support Versus Rehabilitation The second major tension is between the income maintenance and rehabilitation goals of the program. The report of the HHS Commis- sion on the Evaluation of Pain (U.S. Department of Health and Human Services, 1987) notes that although "the primary mission of the disability program is to pay monthly benefits to those found to be disabled, a subsidiary objective is to help restore disabled individuals to productive activity." As an income support program, disability insurance must take care not to undermine work incentives. For this purpose the eligibility criteria must be strict (see Chapter 2~. As a rehabilitation program, disability insurance must take care not to undermine the potential for effective rehabilitation. For this purpose, eligibility determination should occur as soon as possible after the onset of illness or injury and should encourage claimants to view themselves as able to work, rather than as totally unable to work. The SSA's definition of disability is deliberately restrictive. The Social Security disability system is not designed for partially disabled people or for people who are expected to recover quickly. Yet within the program there exist numerous rehabilitation provisions. These provi- sions are presumably designed to encourage and facilitate rehabilita- tion and yet they seem at odds with the basic definition of disability. There appears to be a serious "catch-22"to be eligible for disability benefits a claimant must prove that he or she is unable to engage in any substantial gainful employment that exists in the national econ- omy because of a medical impairment that is expected to either last for at least 12 months or to end in death. To be eligible for rehabilitation, a claimant must demonstrate both the potential for work and that rehabilitation would be beneficial. In light of these conflicting require- ments, it does not seem surprising that the rehabilitation provisions are rarely used and that few people ever go off the disability rolls by returning to work. Furthermore, the same claimant can be found both

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CONFLICTS ^D CONTRADICTIONS 71 not disabled according to SSA criteria and not eligible for rehabilita- tion services because he or she is too impaired to profit from them. The rehabilitation provisions themselves contain some conflicting messages to the state agencies charged with providing services. The SSA pays state vocational rehabilitation agencies by the case for services rendered to people who subsequently return to work for a continuous period of 9 months. Given the stringent eligibility criteria to receive disability benefits and the often long delays between the application for and granting of benefits, it would seem that as a group these people are a poor risk for rehabilitation. Under these conditions, there is little incentive for state agencies to accept the risk of payment after the fact for successes only. As the Pain Commission (U.S. Department of Health and Human Services, 1987) stated, the need to vigorously "prove and re-prove" one's disability under the current system works against the rehabili- tation provisions. The beneficiaries themselves may have little incen- tive to try to be rehabilitated after being found "disabled." Not only have many of these people had to work hard to produce the necessary evidence for their cases, but they have also typically waited a long time for the process to be completed. The elapsed time between initially filing a claim and eventually being found eligible for benefits can easily exceed 2 years if there are appeals. During this time the claimant's health may have deteriorated. At that point, the likelihood of successful rehabilitation may have significantly diminished, even in those whose motivation has remained strong. Physicians, Claimants, and Administrators Clinical assessments play a very different role in medical practice than they do in eligibility determinations. The physician's role and relationship to the patient in a purely clinical situation is to diagnose and treat the patient. By contrast, in a gatekeeping situation, the physician's job is to evaluate a patient for an employer (e.g., to determine suitability for a job), for a private insurance company (to assess actuarial risk), for the at services (to determine suitability for military service), or for a public program dispensing money on the basis of medical criteria (Stone, 1979~. The SSA uses physicians in three different ways, each with different formal relationships to the SSA bureaucracy. First, the SSA relies on information from a patient's own physician. Most claimants have seen one or more physicians for their condition before they apply for benefits, and the medical records are a crucial part of the claimant's

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72 THE PROBLEM OF PIN FOR THE SSA file. Other than filling out forms, these physicians usually have no relationship with the SSA. These doctors are selected by the claimant, and are generally paid by the patient or the patient's insurer. The second tier is made up of consultative physicians. These are doctors in private practice who examine applicants at the SSA's request to provide additional medical evidence deemed necessary for a decision that is not available in the treating of physician's records. Consultative physicians are not full-time or salaried employees of the SSA; instead, they are paid by the SSA for each examination. Some of these physicians perform just one or only a few examinations each year. Others do an extensive amount of work for the state Disability Determination Service (DDS), however, so there is often a continuing relationship between the state agency and the consultative physician; there is rarely a continuing relationship between an applicant and a consultative physician. Third are the physicians directly employed by the state DDS who serve on the disability determination teams. These physicians never see applicants in person; they only review the records of examinations from the treating and consultative physicians. From these records, staff physicians, in collaboration with other members of the dete~-~i- nation teams, make eligibility decisions. Physicians in these three roles have different relationships with SSA administrators and with patients/cIaimants, and may have different perspectives on disability issues. This variation is a source of tension among physicians, between physicians and patients/claimants, and between physicians and the program a~ninistrators. Treating physicians, like claimants, have no inherent interest in the overall size or expenditures of public programs. Because theirs is an individualistic view, there is no reason to expect that treating doctors have taken broad programmatic interest into account in assessing the patient's medical condition and functional levels. Unlike program administrators for whom "reliance on nonrepli- cable, nonreviewable judgement or intuition [is seen] as a singularly unattractive methodology for decisions" (Mashaw, 1983), health care professionals routinely are expected to exercise informed judgment. Decision making in the absence of complete facts and intuitive assess- meets of patients based on observation are integral to the practice of medicine. As discussed in Chapter 2, medical professionals have been given a central role in the disability determination process that is articulated in law and defined in regulations. Yet some observers worry that treating physicians may too easily consider patients im- paired, because their first priority is to help and be an advocate for

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CONFLICTS kD CONTRADICTIONS 73 their patients. Whether they are too lenient or not depends on one's point of view; that physicians are advocates for their patients' well-be- ing is as it should be. From the perspective of the treating physicians, "disability decisions fare] viewed not as attempts to establish the truth or falsity of some state of the world, but rather as prognoses of the likely effects of disease or trauma on functioning, and as efforts to support the client while pursuing therapeutic and vocational pros- pects" (Mashaw, 19831. One countervailing force that may operate to make some physicians conservative in their judgments of disability is the damage such a label can do to a person. Especially in the SSA disability system, where disability is defined as the total inability to work and has an implied permanence, such a label might undermine further medical efforts and the patient's will to improve. Although intuition would suggest that personal physicians are more lenient and the SSA's consultant physicians more stringent in their judgments, there are few data to support this claim. In fact, one study found that consultative physicians thought 48 percent of a sample of disability claimants could work, whereas treating physicians thought that 55 percent of the sample could work (Carey and Handler, 1986~. Regardless of the evidence, physicians and administrators within the SSA believe that treating doctors do not understand the program criteria adequately and that they are more lenient. These beliefs are the source of some further strain between the medical community and the SSA. What is known empirically is that just as some claimants shop for doctors in an effort to find physicians to certify their disabil- ities, so too do some program administrators (public and private) seek consultative examinations to find reasons for not certifying claimants as disabled (Stone, 19841. The nature of the disability may also exert a differential impact on the judgment of treating physicians and SSA personnel. Patients with cardiovascular problems, for example, appear to elicit higher levels of perceived legitimacy than those with low back problems or mental disability. In a study by Nagi (1969), the vast majority of coronary disease patients judged disabled by a clinical team were also found unfit for work by the disability examiners, but less than half of the patients with Tow back problems similarly judged by the clinical team were found disabled by disability examiners. Furthermore, Nagi found that among patients with modest physical impairments, those with minimal psychological limitations were more likely to be found dis- abled than those with severe psychological limitations. Physicians who work for the SSA (like company doctors and those

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74 THE PROBLEM OF PAIN FOR THE SSA employed by HMOs and other organizations) may have conflicting loyalties. As members of the medical profession, they have been taught to promote their patient's welfare. Even if they only see the patient once for a consultative examination, physicians may feel an obligation to serve the patient well. On the other hand, because they are paid by the SSA, they may fee] some loyalty to their employer and to the system as a whole. Like disability evaluators generally, physicians employed by the SSA in whatever capacity may be influenced by the political and bureaucratic climate, especially as that affects the quality assessment reevaluations of their cases. Whether the emphasis is on too many allowances or too few, or on too much time being taken to process the claims, all of these messages affect the context within which judgments are made. Furthermore, being in a gatekeeping role may compromise (or be seen as compromising) autonomy and profoundly affect the doctor- patient relationship, transforming it from one based on mutual trust to one permeated with mutual distrust. When serving a gatekeeping role to disability benefits, doctors are believed to be more likely to question the claimants' credibility and motivation than when they are in only a clinical role (Stone, 1979, 19841. This transformation (or even the potential transformation) of the doctor-patient relationship has impor- tant ethical implications. Limits on trust as a result of the perception of dual loyalties on the part of providers, or as a consequence of the fact that medical consultations are required rather than chosen, electively eliminate informed consent as a means of protecting those who must enter into a system of medical screening and eligibility determination. Administrative Law Judges Versus Program Administrators A claimant who has been denied benefits at the initial acid recon- sideration levels of administrative review can request a hearing before an ALE. This level of review differs in many important ways from both the lower and the higher levels of review. Most significantly, only at the ALd hearings is the claimant seen face to face by a decisionmaker. Both the Tower levels of administrative review and the higher levels of judicial review in the federal courts rely on the written record alone in making determinations about eligibility for benefits. Other differences derive from the training and expertise of the more than 700 ALds, the nature of the hearing and the evidence allowed, and the multiple roles and concurrent pressures on the judges. AL~Ts are federally appointed and permanently assigned to an agency. Permanent assignment is controversial for what appear to be

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CONF'LICTS ED CONTRACTIONS 75 contradictory reasons. Although it is meant to ensure that the judges have the in-depth expertise necessary to understand the agency's functions and rules, some observers worry that permanent appoint- ment, without fear of firing or concern about reelection, encourages independent decision making. Others have worried that being perma- nently assigned to an agency may compromise the Alms' impartiality and independence, because they become loyal to the agency and because they are financially dependent on it as their effective employer (Cofer, 19851. The ALds have a Circuit task that involves juggling three roles simultaneously. Their job is not only to represent the agency's interest, but also in effect to represent the claimant and to be an impartial decisionmaker by equitably balancing the competing interests of the claimant and the agency. Typically when disability cases come to the ALds the records are so incomplete that there is an inadequate basis for decision making. Thus, one of the important tasks of the ALds and their staffs is developing the record; it is in this sense that ALds serve as the claimant's advocate. A considerable amount of tension exists between the SSA and the ALls in part because the rate of reversal at this level averages about 50 percent and because of substantial variation in the rates of reversal among the judges themselves. The inconsistencies among the ALds (reversal rates range from 10 to 90 percent) are most troublesome because there is no obvious explanation for such wide variation other than to attribute it to differences in personal opinion and values (Cofer, 19851. The high average rate of reversals is also of concern. In both instances, observers worry that inappropriate subjectivity enters into decisions; hence, there is an implicit questioning of the accuracy and appropriateness of the judges decisions (Mashaw et al., 19781. As emphasized throughout this report, pain is subjective and there is no entirely objective way to measure it (see Chapters 7 and 11 especially). The real issue should not be how to eliminate subjectivity from the assessment process, but how to factor subjective elements into the determination process in a more reliable and valid manner. Although subjectivity is clearly one reason for the high reversal rate, there are several other reasons as well. First, when cases arrive before the ALds they are frequently incomplete. In developing the cases and completing the record, it is not unusual for the judges to uncover new evidence evidence that was not considered or was not available at the state determination level. Second, in the time that elapses between the reconsideration and the ALd review (which often exceeds one year), claimants' conditions can,

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76 THE PROBLEM OF PIN FOR THE SSA and often do, deteriorate. Third, the cases heard by the ALds are unlikely to be straightforward or easy to adjudicate. "The ALds principally hear cases which lie close enough to the statutory defini- tion of disability to require human judgement to make the determina- tion. Therefore, accuracy becomes less empirical, and more subjective, in these cases" (Cofer, 19851. Given that the cases reviewed by the ALds are close to the line, and given the further development of the evidentiary record, face-to-face encounters, and elapsed time between the lower denial and the ALIT hearing during which the impairment may have progressed, it is not surprising, or necessarily inappropriate, that a substantial proportion of decisions are overturned (Mashaw et al., 1978). THE FEDERAL COURTS AND CHRONIC DISABLING PAIN Congressional debate on the Social Security Disability Benefits Reform Act of 1984 (P.L. 98-460) included discussion about the way the federal district courts handled allegations of chronic pain and how the rulings were creating tensions between the courts and both the Congress and the SSA. Several concerns were aired during this debate: first, some members of Congress thought the courts were exercising excessive influence in defining standards by which to assess chronic disabling pain; second, pain decisions varied widely from circuit to circuit, suggesting that the law was not being uniformly interpreted or applied; third, the courts were accused of going beyond what Congress intended by giving too much weight to claimants' allegations, thereby broadening and redefining statutory definitions; and fourth, by com- parison, some members of Congress thought the SSA's rulings were too restrictive, such that some pain claimants were being improperly denied benefits (Subcommittee on Social Security of the Committee on Ways and Means, 1981; Collins and Erfle, 19851. As described in Chapter 3, in an effort to clarify its intent; and as part of the 1984 amendments, Congress legislated a statutory standard for evaluating chronic disabling pain. Once having exhausted all administrative remedies, a claimant can appeal an unfavorable disability decision for federal court review. Ordinarily, the federal district court is a trial court; however, for Social Security disability cases the federal district court acts as an appellate forum. As such, the federal court carries out a "paper review" of the record as it was developed in lower levels; the judge never sees the claimant face to face and therefore is precluded from making a first- hand assessment of the claimant's (or the witness') credibility. The role

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CONFLICTS ED CONTRACTIONS 77 of the federal district court in Social Security determinations is not to readjudicate the facts, but to examine the record and assess what is essentially a single (albeit often multifaceted) legal issue: is the Secretary's decision supported by substantial evidence? In actual practice the evidence is often reexamined. What is required for a federal judge to overturn an ALd's decision is the invalidation of the process used by the ALJ to evaluate the specific facts of the situation. Once the process of assessment is negated, then the facts are left open for the application of relevant statutory interpretation by the federal judge. Claimants' ads ocates must present the legal arguments regarding substantial evidence. Because the most effective arguments tend to be tightly interwove en ~ ith and supported by the facts of the case, the federal judge is gin en the unofficial opportunity to review the evidentiary record, while articulating a decision founded in legal . . prlnclp e. Significant controversy can develop among the courts, the Congress, and the SSA when federal courts repeatedly overrule ALds' decisions. Often new policy is developed through incremental changes progres- sively articulated in case lax (see Chapter 31. Although the court's only function is to interpret and apply existing law, not to rewrite it, continuing interpretation necessarily leads to expanded application of statutes, which may go beyond Congress' original intent. Conversely, it has been argued that the SSA has been excessively restrictive in promulgating internal rulings and agency regulations that allegedly ignore congressional intent. This is a constant theme in the political discussion of all judicial behavior, not only in disability benefit adjudication. In this respect the disability area only manifests what is a much larger, more enduring tension between the legislative and judicial branches. Another type of tension is created when a federal court bases its decision on earlier case law that interpreted relevant statutes, regu- lations, or rulings differently from the Secretary's stated policies. In recent years the Secretary has agreed to implement the decision rendered by the court for the particular claimant, but has refused to apply that decision to other claimants. Therefore, each claimant with a similar impairment or disability has had to appeal his or her case through federal court. This policy of the Secretary, termed "non- acquiescence," was the official position of the Secretary until the 1984 amendments. Finally, conflict is created between the judiciary and the SSA because of inconsistencies in decisions from the various U.S. Circuit Courts of Appeal. Each federal judicial circuit operates as an autono-

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78 THE PROBLEM OF PIN FOR THE SSA mous unit to the extent that it is not in conflict with the Supreme Court. Although claimants' advocates often quote the law of other circuits and one circuit may find another's decision satisfactory and opt to use it as precedent, no circuit is required to adopt the case law decisions of another circuit. Adoption of a particular new standard is entirely discretionary by the court. This situation, coupled with the agency's policy of nonacquiescence, wreaks havoc on disability program adminis- trators. In the absence of common, consistent disability determination standards, federal circuit court judges have attempted to articulate what they consider to be workable and fair guidelines. Thus, at the federal court level, as at all the other levels of review, human judgment plays a part. COMPENSATION AND INCENTIVES In addition to the tensions that are specific to the SSA disability system, there is a controversial question associated with transfer payments of all kinds: do monetary payments undermine motivation? A pervasive conventional wisdom (at least as old as sixteenth-century English poor law) holds that income maintenance payments in any formpublic assistance, industrial injury insurance, veterans pay- ments, or disability pensions undermine the motivation to work, and therefore reduce the labor supply and ultimately national productiv- ity. In terms of disability payments, three types of incentive effects are often postulated: I. that the availability of disability benefits acts as an incentive for workers with marginal disabilities to drop out of the labor force and seek disability benefits instead; 2. that the receipt of disability benefits acts as a disincentive for the recipient to return to work; and 3. that the receipt or potential receipt (e.g., a pending application) of disability compensation acts as a disincentive to rehabilitation. If disability payments have any of these negative effects, then there is a conflict between two competing social goals: (1) providing economic security to disabled people, and (2) both returning as many people as possible to productive work through rehabilitation and keeping as many people as possible in the work force. This topic generated considerable discussion in our committee meet- ings. The intensity of the debate is indicative of its centrality in larger questions of social philosophy (see Chapter 21. Although committee members agreed that the general theory plays a dominant role in

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CONFLICTS ED CONTR~ICTIONS 79 public policy precisely because it amounts to a conventional wisdom, members disagreed about the correctness of the theory of disincentives in general, about the three specific propositions, and about the quality of social science evidence supporting or refuting any of the proposi- tions. In the economic choice framework, nonmonetary incentives are viewed as relatively less important than monetary rewards. This model assumes that "the individual rationally compares Ethel elected income flows Efrom disability benefits and from work] and selects the option which maximizes his elected income" (Haveman et al., 19843. A worker who is potentially eligible for Usability benefits (because of a condition that might meet the eligibility requirements) faces a choice between continu- ing in the labor market or applying for disability benefits. In the second version of the theory, a worker already on the disability rolls faces a choice between keeping the level of income provided by the program or returning to the labor force. In the third version, in which the impact of disability benefits on rehabilitation is at issue, no such model of conscious choice is specified, but the underlying assumption in this version is that the financial gains from remaining disabled exert a negative influencc- perhaps unconsciously~n the patient's desire to regain skills and functional abilities. A number of economic studies find some support for these theories (Luft, 1978; Berkowitz et al, 1976; Parsons 1980a,b; Leonard, 19791. (See Chapter 5.) This same theme is found in the literature on the rehabilitation of chronic pain patients. Many studies use some form of "compensa- tion" as an independent variable to test the hypothesis that receiv- ing benefits impedes rehabilitation. Whereas several studies find that rehabilitation outcomes are less good for people who are receiv- ing benefits or have claims pending (Krusen and Ford, 1958; Herman and Baptiste, 1981; Guck et al., 1986), other, often more methodo- logically sophisticated, studies do not (Rosomoff et al., 1981; Trief and Stein, 1985; Chapman et al., 1981; Brena et al., 19811. As discussed in detail in Chapter 12, virtually all of these studies suffer from severe methodological shortcomings that render the findings . inconc usage. In a society such as ours in which the work ethic is strong and a sense of personal worth derives from work, it is likely that most people would prefer to work than to receive "handouts." Thus, al- though it seems clear that economic forces influence work-related behaviors (including disability), the committee was not satisfied that a narrow theory of incentives focused exclusively on income adequately accounted for the observed behaviors. In fact, most econo-

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80 THE PROBLEM OF PIN FOR THE SSA mists postulate that behavior is influenced by a more sophisticated cost-benefit calculus that takes account of the broader work environ- ment. Importance of Job Satisfaction The majority of people who report themselves as disabled do work (Wolfe, 19791. Therefore, what needs explaining is why some workers, for whom disability benefits might represent a net economic gain, remain in the labor force while others do not. Many committee members felt that certain types of unpleasant or low status jobs push people out of the labor force at the first opportunity, rather than disability benefits exerting a "pull" on people. This is borne out in several studies from the United States and abroad (see Chap- ter 61. A study by Yelin and his associates (1980) found that work disability for people with rheumatoid arthritis was predicted by social characteristics of the workplace more than by any other factors, including medical factors and physical demands of the job. Control over the pace of work was found to be especially important. Swedish data indicate that monotonous, boring work is significantly related to job dissatisfaction and disability rates (Svensson and Andersson, 1983). The econometric and rehabilitation studies do not distinguish blue- from white-collar jobs, much less more refined categories of occupa- tional characteristics or worker satisfaction. Committee members pointed out that a common pattern among professionals is to continue working long past the date when relatively generous retirement benefits are available. The decision to leave the labor force, therefore, probably depends as much on the more intangible benefits (or lack of them) a job provides as on the monetary rewards. Program Rules as an Explanation of Labor Supply For recipients of Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), program rules constraining work effort could account for the low rates of return to work as well as the putative attractiveness of disability benefits. A person earning more than $300 per month not only loses disability benefits but eventually also loses Medicare or Medicaid coverage. For people living at a bare subsistence level (which includes most disability beneficiaries), the risk of losing both income and health insurance may be too great a gamble (Berkowitz, 19811. Although the trial work period represents

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CONFLICTS ED CONTRADICTIONS 81 an attempt to deal with this problem, very few people take advantage of it. It simply may not address the basic disincentives and constraints on returning to the work force we have identified. Other rules that could explain much of the increased rate of application to the Social Security disability programs are the require- ments of many state general assistance and Aid to Families with Dependent Children (AFDC) programs. During the period from the mid 1960s to the early 1980s, many ofthese programs began to require that applicants for general assistance and/or AFDC file an application with the Social Security disability programs; these state programs were eager to shift costs out of the state budgets and onto the federal treasury. Hence, some (perhaps large) portion of the increase in disability applications in the period when benefit levels were also increasing must be attributed to government-mandated behavior rather than to individual choice. Employment Opportunity as a Determinant of Labor Supply A critical factor that is often overlooked in discussions of disability benefits and work disincentives is whether, in fact, jobs are available. Although economic analyses include attention to employment oppor- tunity, econometric studies typically use national or regional unem- ployment rates as an independent variable. Few studies control for the availability of jobs reasonably near home for a person with a particular handicap. It may well be that people do not participate in the labor force only when they cannot get in. In that case, they are not "choosing" a disability benefit over a potential wage, but rather they are forced to accept disability benefits because they simply cannot get a job. There is substantial evidence that people with nondisabling medical conditions are less likely to be hired than healthy workers, and that people with chronic conditions and severe handicaps have a much lower likelihood of finding employment (Weinstock and Haft, 1974; Rothstein, 1983; Stone, 19871. From the employer's perspective there are perceived risks in hiring or reemploying impaired people, which may include higher insurance premiums. In summary, economic and rehabilitation studies show an aggregate effect of compensation and other factors on labor force participation. This erect is complex and its causes are difficult to sort out. In the absence of more detailed and precise studies, the committee found that the available data could neither adequately explain the observed relation, nor unequivocally answer the question of whether disability benefits are a disincentive to work and rehabilitation.

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82 THE PROBLEM OF PAIN POR THE SSA CONCLUSIONS It Is clear that the task of determining eligibility for disability is generally difficult and that making such decisions on the basis of symptom complaints, such as pain, that are not fully substantiated by clinical findings is especially difficult. These difficulties derive from the inherent elusiveness of the concept of "disability," from deliberate ambiguities in the statutory definition, from the multiplicity of per- spectives and goals at each level of review and appeal, from the limitations of medical science, and from the necessary and appropriate reliance on human judgment. Taken together, these elements of the decision-making process explain why there are inconsistencies and conflicts between and among the individuals ant] institutions charged with making disability determinations. The committee believes that the goal should not be to eliminate the tensions and inconsistencies, because to a large extent these are evidence that an appropriate system of checks and balances is operat- ing. Instead, the goal should be to ensure a decision-making process that is as accurate and fair as possible. Human judgment and subjec- tivity are inherent in that process and appropriate to determinations that require a combination of so many different kinds of information- medical, psychosocial, functional, and vocational. However, even sub- jective determinations can be made more valid and reliable (see Chapter 11~. Furthermore, although subjectivity is an easy target for criticism, as this analysis illustrates, it is only one of many contribu- tory factors to the observed inconsistencies and strains in the system. REFERENCES Berkowitz, M. Disincentives and the rehabilitation of disabled persons. In: Annual Review of Rehabilitation, Vol. 2 (Pan, E.L., Backer, T.E., and Vash, C.L., eds.). New York: Springer, 1981. Berkowitz, M., Johnson, W., and Murphy, E. Public Policy Toward Disability. New York: Praeger, 1976. Brena, S.F., Chapman, S.L., and Decker, R., Chronic pain as a learned experience: Emory University Pain Control Center. In: New Approaches to Treatment of Chronic Pain: A Review of Multidisciplinary Pain Clinics and Pain Centers (Ng, L.K.Y., ed.). NIDA Research Monograph 36. Washington, DC: U.S. Government Printing Once, 1981. Carey, T.S., and Handler, N.M. The role of primary physicians in disability determina- tion for Social Security insurance and workers' compensation. Annals of Internal Medicine 104:70~710, 1986. Chapman, S.L., Brena, S.F., and Bradford, A. Treatment outcomes in a chronic pain rehabilitation program. Pain 11:256-268, 1981.

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CONFLICTS AND CONTRADICTIONS 83 Cofer, D.P. Judges, Bureaucrats, and the Question of Independence: A Study of Social Security Administration Hearing Process. Westport, ON: Greenwood Press, 1985. Collins, K.P., and Erfle, A. Social Security Disability Reform Act of 1984: legislative history and summary of provisions. Social Security Bulletin 48(4):5 32, 1985. Guck, T.P., Meilman, P.W., Skultety, F.M., and Dowd, E.T. Prediction of long term outcome of multidisciplinary pain treatment. Archives of Physical Medicine and Rehabilitation 67:29~296, 1986. Haveman, R.H., lIalberstadt, V., and Burkhauser, R.V. Public Policy Toward Disabled Workers. Ithaca, NY: Cornell University Press, 1984. Heaney, G.W. Why the high rate of reversals in Social Security disability cases? Hamline Law Review 7(1):1-17, 1984. Herman, E., and Baptiste, S. Pain control: mastery through group experience. Pain 10: 79~6, 1981. Howards, I., Brehm, H.P., and Nagi, S.Z. Disability: From Social Problem to Federal Program. New York: Praeger, 1980. Krusen, E.M., and Ford, D.E. Compensation factor in low back injuries. Journal of the American Medical Association 116:112~1133, 1958. Leonard, J. The Social Security disability program and labor force participation. Working Paper No. 392. Cambridge, MA: National Bureau of Economic Research, 1979. Luft, H. Poverty and Health. Cambridge, MA: Ballinger, 1978. Mashaw, J.L. Bureaucratic Justice: Managing Social Security Disability Claims. New Haven, CT: Yale University Press, 1983. Mashaw, J.L., Goetz, C.J., Goodman, F.I., Swartz, W.F., N7erkuil, P.R., and Carrow, M.M. Social Security Hearings and Appeals. Lexington, MA: Lexington Books, 1978. Nagi, S. Disability and Rehabilitation: Legal, Clinical, and Self-Concepts and Measure- rnents. Columbus: Ohio State University Press, 1969. Parsons, D.O. The decline in male labor force participation. Journal of Political Economy 88:117-134, 1980a. Parsons, D.O. Racial trends in male labor force participation. American Economic Review 70:911-920, 1980b. Rosomo~, H.L., Green, C., Silbert, M., and Steele, R. Pain and low back rehabilitation program at the Miami School of Medicine. In: New Approaches to Treatment of Chronic Pain: A Review of Multidisciplinary Pain Clinics and Pain Centers (Ng, L.K.Y., ed.). NIDA Research Monograph 36. Washington, DC: U.S. Goverrunent Printing Office, 1981. Rothstein, M. Employee selection based on susceptibility to occupational illness. Mich- igan Law Review 81:1379-1496, 1983. Stone, D.A. The resistible rise of preventive medicine. Journal of Health Politics, Policy, and Law 11:671-696, 1987. Stone, D.A. The Disabled State. Philadelphia: Temple University Press, 1984. Stone, D.A. Physicians as gatekeepers. Public Policy 27:227-254, 1979. Subcommittee on Social Security of the Committee on Ways and Means, House of Representatives. Social Security Hearings and Appeals: Pending Problems and Proposed Solutions. Washington, DC: U.S. Government Printing Once, 1981. Subcommittee on Social Security of the Committee on Ways and Means, House of Representatives. Disability insurance. Legislative issue paper 17, 1976. Svensson, H.O., and Andersson, G.B.J. Low-back pain in 40 47 year old men: work history and work environment factors. Spine 8:272-276, 1983. Trief, P., and Stein, A. Pending litigation and rehabilitation outcome of chronic back pain. Archives of Physical Medicine and Rehabilitation 66:9~99, 1985.

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84 THE PROBLEM OF PMN FOR THE SSA United States Department of Health and Human Services. Report of the Commission on the Evaluation of Pain. Washington, DC: U.S. Government Printing Office, 1987. Weinstock, M., and Haft, J.I. The effect of illness on employment opportunities. Archives of Environmental Health 29:79~83, 1974. Wolfe, }3. Impacts of disability and some policy implications. Discussion Paper No. 53~79, Institute for Research on Poverty, University of Wisconsin-Madison, 1979. Yelin, E., Nevitt, M., and Epstein, W. Toward an epidemiology of work disability. Milbank Memorial Lurid Quarterly/Health and Society 58:386~15, 1980.