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PART I THE PROBLEM OF PAIN FOR THE SOCIAL SECURITY ADMINISTRATION
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
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
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
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 programscommercial 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
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
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-
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
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-
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
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.
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
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
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
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
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. REFERENCES Advisory Council on Social Security. Permanent and Total Disability, A Report to Senate Committee on Finance, 80th Cong., 2d sees., 1948. S. Doc. 1621. American Medical Association, Committee on Medical Rating of Physical Impairments. Guides to the evaluation of permanent impairment: the cardiovascular system. Journal of the American Medical Association 172:104~1060, 1960. Berkowitz, E. Rehabilitation: The Federal Governments Response to Disability, 1935-1954. Ph.D. dissertation, Northwestern University, 1976. Berkowitz, E., and Fox, D. The struggle for compromise: Social Security disability insurance, 193~1986. Background paper prepared for the IOM Committee for a Study of Pain, Disability, and Chronic Illness Behavior, 1986. Derthick, M. Policymaking for Social Security. Washington, DC: Brookings Institution, 1979. General Accounting Once. The Social Security Administration Should Provide More Management and Leadership in Determining Who Is Eligible for Social Security Benefits. Washington, DC, August 17, 1976. General Accounting Office. The Social Security Administration Needs to Improve Its Disability Claims Process. Washington, DC, February 16, 1978. General Accounting Once. Controls Over Medical Examinations Necessary for the Social Security Administration to Better Determine Disability. Washington, DC, October 9, 1979. House Ways and Means Committee, Subcommittee on the Administration of Social Security Laws. Hearings on Social Security Amendments of 1960, 86th Cong., 2d sees., March 11, 1960. Kerner v. Flemming, 283 F. 2d 216 (2d Cir. 1960). Kessler, H. DisabilityDetermination and Evaluation. Philadelphia: Lea and Febiger, 1970.
36 THE PROBLEM OP PAIN FOR THE SSA Lando, M., and Krute, A. Disability insurance: programs, issues, research. Social Security Bulletin 39, 1976. Lando, M., Coate, M., and Kraus, R. Disability benefit applications and the economy. Social Security Bulletin 42, 1979. Mashaw, J. The politics of implementation: disability insurance in the age of retrench meet. Paper presented at the Conference on Social Security at 50: A Re-examination. Yale University Institute for Social and Political Studies, New Haven, CT, November ~9, 1985. Roemmich, W. Determination, evaluation, and rating of disabilities under the Social Security system. Industrial Medicine arid Surgery 30:6~63, 1961. Senate Finance Committee. Hearings on H.R. 7225 (Social Security Amendments of 1955), 84th Cong., 2d sees., 1956. Senate Finance Committee. Stay Data and Materials Related to the Social Security Disability Insurance Program, 97th Cong., 2d sees., 1982. Social Security Board. Proposed Changes in the Social Security Act, Report of the Social Security Board to the President and to the Congress of the United States, December 30, 1938, 76th Cong., 1st sees., 1939. H.R. Doe. 110. Stone, D. The Disabled State. Philadelphia: Temple University Press, 1984. Treitel, R. Recovery of disabled beneficiaries: a followup study of 1972 allowances. Social Security Bulletin 42(4), 1979. Wegner, E.L. Cross-national comparisons in social policies regarding disability pay- ments and vocational rehabilitation. Background paper prepared for the IOM Com- mittee for a Study of Pain, Disability, and Chronic Illness Behavior, 1986.