Wednesday, April 27, 2011

Medicare and a Partial Solution

I watched Hardball the other evening.  Matthews played a segment where a woman in Pennsylvania challenged her Congressman who had voted for the Ryan budget over that vote.  Her complaint ... that her adult children would not get the same Medicare that she currently used and enjoyed.  Matthews relished the way the inept Congressman squirmed.

But lets be two things:  honest and clear.  Neither side of the aisle can or will leave Medicare intact as the sacred cow.  The national health care plan makes deep cuts in Medicare.  Fraud and waste will not make up for billions cut from the Medicare budget.  There is fraud and waste, getting rid of fraud and waste is good, but the cost of getting rid of fraud and waste is not zero. So how can we make a dent in Medicare?

The first item of cost is eligibility.  People on disability have to wait 24 months from their first Social Security check to get Medicare.  These are sick and hurting people.  They have been out of work for 30 months before Medicare kicks in.  Compare that to people that turn 65 ... instant Medicare eligibility.  Current full retirement age is 66.  Medicare should get permanently attached to full retirement age.  That would delay eligibility for a year currently and two full years by 2027 when people born in 1960 or later reach full retirement age.

Premiums should also get further indexed to ability to pay.  Currently HHS charges people $555.40 for part A and part B if they have less than 30 quarters of coverage.  Most people either have 40 quarters or are/were married to someone that has 40 quarters of coverage.  For them, part A is free and part B is $96.40 per month.  High income households do pay a little more.

Part A costs $461 alone for people with less than 30 quarters of coverage and $254 for people with 30 to 30 quarters of coverage.  For high wage earners, those continuing to have high income after full retirement age, they should start to pick up part of the part A premium.

Tuesday, April 26, 2011

The Treating Physician Rule

Some Administrative Law Judges think that the courts have gone too far in imposing a treating physician rule on them in the cases that I have litigated over the last 25 years.  The treating physician rule requires that the ALJ give more weight to the opinions of the treating physician than the opinions of one-time consultative examiners and more than the opinions of non-examining physicians.The logic behind the rule is that the treating physician has a greater opportunity to know the person and has the intent to either cure the problem or relieve the patient of the ill effects of the disease or injury.  Murray v. Heckler, 722 F.2d 499, 501-502 (9th Cir. 1983).

The case law is equally clear that in order to determine whether the ALJ gave greater weight to the opinions of the treating physician, the ALJ must give specific and legitimate reasons for rejecting the opinions of the treating physician where the opinions of other physicians disagree.  Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).  The ALJ will complain that the weight afforded the treating physician and the obligation to give reasons for rejecting the opinions of the treating physician hamper his ability to make decisions according to how he views the evidence.  

That ALJ ignores the very real proposition that the Commissioner of Social Security promises claimants for disability benefits that the Social Security Administration will give controlling weight to the opinions of the treating physician where they are well-supported and "not inconsistent" with other evidence in the record.  20 C.F.R. §§404.1527(d)(2); 416.927(d)(2).  The double negative of the "not inconsistent" standard is clearly intentional to mean something that falls between "consistent" and "inconsistent."  The "not inconsistent" standard tolerates a degree of deviation to mean that some disagreement will not run afoul of the standard.  

Even the the treating physician is not entitled to controlling weight, the Commissioner promises claimants for disability benefits that the Social Security Administration will still reject the opinions of the treating physician for "good reasons."  20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). It is apparent to me that a good reason would have to be both specific and legitimate.  If the record does not contain evidence that contradicts the opinions of the treating physician, then a good reason would have to be clear and convincing.  

The Commissioner also demands that the ALJ give consideration and state the weight given to the opinions of the non-examining physicians.   20 C.F.R. §§404.1527(f); 416.927(f).  So in those two instances, the Commissioner binds the hands of the wayward ALJ to give the evidence proper consideration.  

The only real disagreement ... the Ninth Circuit does not allow the ALJ to simply disregard favorable evidence that comes form examining physicians.  There, the courts require the ALJ to give at least specific and legitimate reasons for rejecting those opinions that help the claimant.  The regulations are silent on how to treat its own hired guns.  For now, the public deserves to know that the terms of the social contract do not give the random ALJ carte blanch to deny cases for arbitrary reasons but to give good reasons, whether those reasons be specific and legitimate or clear and convincing. 

Saturday, April 16, 2011

Strauss v. CSSA

Strauss v. Commissioner of the Social Security Administration is one of those "of course" cases.  Simply put, a federal court must find a person claiming disability benefits disabled before ordering the Commissioner to pay disability benefits.  The legal principle is simple enough but bore repeating if only to emphasize that the courts have the power to order the payment of benefits.

What I find irritating is the failure of experienced attorneys to get the name of the parties correct.  I have been involved in cases with the misnamed defendant.  Chavez v. Department of HHS is one.  (That opinion stands for the well-worn proposition that the Commissioner gets to tell the world what his regulations mean and the courts must respect that determination, unless plainly erroneous.)    I didn't file that case, taking it on later in the game.  But come on people, can we exercise just a little care out there?

Friday, April 15, 2011

Pending at the Supreme Court

Lockwood v. Astrue is currently pending before the Supreme Court.  Your erstwhile writer acts the attorney of record.  Lockwood concerns application of the borderline age case for an individual about 1 month from turning 55 but the Administrative Law Judge treats her as 54.  The regulations promise that the ALJ won't do that.  The program operations manual tells SSA to explain why it did or didn't take a flexible approach to age.  At issue is whether the Social Security Administration can promise the public one thing in a policy and procedure manual and then run away from that promise in federal court.

It is the social contract theory in administrative law.  The Supreme Court changed the paradigm in Chevron.  Regulations, not the Courts, get first crack at refining an ambiguous statute.  Auer extends that doctrine.  The agency gets the first crack at refining an ambiguous regulation.  But the Social Security Administration want to defend ALJ decisions in Court more than it wants to defend the right of every federal agency to promulgate regulations and then tell the world what those regulations mean.

Just to make it interesting, the Acting Solicitor General declined to tell the Supreme Court what the executive branch of government thinks about Auer deference.  The SG didn't do that in Parra v. Astrue, when the government told the Supremes that the Ninth had the whole deference thing wrong.