He Doth Protest Too Much

Ocean County Observer

April 4. 1983

It took John A. Svahn, Commissioner of Social Security half a page of rebuttal (Op Ed, Times Observer March 30) to confirm what I have been saying all along. That disability cases are decided by a doctor and a vocational guidance counselor who never see the patient; that they make a determination that is often crucial to the life of a claimant anonymously, privately and from dry data culled from the files of the patient’s doctors; that the opinion of the patient’s doctors are neither solicited nor considered; that after the state Disability division of the State Department of Labor makes the determination a to whether or not the patient is disabled, the file goes to the Social Security office (a federal branch) for the final decision; that the final decision is merely a pro forma act mandated by law; and that the claimant is informed of the decision by not exactly a form letter, but by a word processor “and stock language is sometimes used”.

Furthermore, the adjudicator (state) and doctor (state) only use phrases such as “the beneficiary can lift and carry -- certain weights, sit stand a walk – certain lengths of time” after they have determined that the claimant is not engaging in substantial gainful activity (SGA) and has an impairment which though severe does not equal the medical criteria in the Social Security regulations. Then if the claimant is not performing SGA but does meet the regulatory medical criteria, “the medical consultant translates the individual’s symptoms, signs and laboratory findings into work-related terms in an assessment of residual functional capacity. (RFC).

The adjudicator subsequently compares the RFC with the physical and mental demands of the individuals past relevant work.”

In other words the patients’ miseries are somehow translated into his or her leftover capacity to do work, and this is then translated into the demands of the job – all without seeing the patient at all.

Mr. Svahn claims that the magical state-employed doctor who performs the intellectual legere de main must remain anonymous to maintain patient confidentiality. Nonsense.

In the first place if the patient’s doctor wants to know who the doctor is so s/he can talk and explain to him or her, this defense of confidentiality is patently ridiculous. The patient’s doctor is the source of the “confidential” material. Furthermore, in the case of my patient, a release was signed long ago, but no names have been forthcoming. But in the final analysis medical records cannot be translated and scored and analyzed the way the law demands. Health and disability have objective and subjective components that do not compute. The individual claimant must at the very least have personal review by impartial doctors. The way things stand the only time the patient is ever seen by the disclaimers is at appeal. At this point the patient must endure the cost of an attorney.

I think Mr. Svahn has done us all a great service. The law is not his doing. He simply explains and defends it. But the law in this case stinks and fouls our constitutional nest. Congress should change the law to permit confrontation, to permit the opinion of the patient’s doctor to be solicited and considered. It should speed up the appeal process which now can take at least a year. But the congress won’t do anything unless prodded by the public. Why should it?