By: Brandon Ashburn
Assault on a disabled person is punished more harshly than ordinary assault in North Carolina. See N.C.G.S. § 14-32.1. All other states have similar laws to deter mistreatment of the disabled. Presumably, the legislative intent evinced by such laws is based upon the conventional wisdom that disabled persons are not capable (or not as capable) of defending themselves against harm.
If only someone would inform 60 Minutes anchor Steve Kroft and Senator Tom Coburn that disabled persons deserve a voice notwithstanding their mental or physical imperfections. After all, even our elected legislature– notorious for its tendency to disagree– recognizes that it is uncouth to pick on the disabled. Mr. Kroft and Senator Coburn joined forces on the evening of October 6, 2013, in a 60 Minutes segment entitled “Disability U.S.A.” to bring attention to the “rampant fraud” taking place in the Social Security Disability system at the expense of American taxpayers. What they exposed instead was a blatant ignorance of both the system and the advocates who, like me, work tirelessly to protect the rights of disabled Americans. Even worse, Mr. Kroft unmistakably and haphazardly implied that the disabled among us are to blame for a significant portion of our country’s enormous debt and the recent government shutdown; while Senator Coburn conveyed the popular but unfortunate idea that disability is avoidable and contemptible in our society.
60 Minutes is a made-for-television magazine of investigative reporting and historically the most successful news show in American television. It has, for the most part, stayed true to the tenants of good investigative journalism for decades, seeking to interview parties on both sides of the most controversial issues. To illustrate 60 Minutes’ unwavering dedication to unbiased reporting, the show was heavily criticized in March 2000 for allowing Timothy McVeigh an opportunity to vent against the government while awaiting execution on death row. Critics believed that McVeigh was not worthy of sharing his side of the story, but 60 Minutes maintained that there are two sides to every story.
Also indicative of the show’s unwavering dedication to fair reporting, correspondent Lara Logan issued an on-air apology to viewers on the evening of November 10, 2013, for airing an interview the week prior with Dylan Davies about his purported eyewitness account of the Benghazi raid. 60 Minutes later revealed that Davies had lied extensively about being present. Ms. Logan made clear in her apology that the most important thing to everyone at 60 Minutes is “the truth.” To be sure, 60 Minutes goes to great lengths to portray itself as a source of reliable and neutral information. Why, then, did Mr. Kroft and 60 Minutes neglect to interview a single recipient of disability benefits in connection with a segment intended to reveal all the secrets about a system on which many Americans rely for basic sustenance? And more importantly, why was the segment on the disability system riddled with misinformation and devoid of any fact-based indicators? Indubitably, not unlike Timothy McVeigh, our disabled citizenry deserves a chance to tell their story even if 60 Minutes would not give them one. Alas, 60 Minutes has failed to issue a formal apology like they did for their faux pas on Benghazi, but I write today in a humble attempt to preserve the dignity of my disabled clients.
Again, the “Disability U.S.A.” segment was riddled with misinformation. First, Senator Coburn’s interpretation of the statute defining disability merits strict scrutiny. The statute does not state that a person is disabled only if there is no job in the national economy they can perform, as Senator Coburn told the American people. Instead, the statute defines disability as the inability to perform any substantial gainful activity on account of a severe physical or mental impairment, also taking into account a claimant’s age, education, and past work experience. What that essentially means in practice is that many individuals over the age of 50 with a limited education and severe physical impairments are likely disabled under the law if they cannot perform the same types of jobs they did in the past. Senator Coburn’s imperfect definition further implies that a person is not eligible for disability if there is a single job anywhere in the nation suitable for them. That logic is also faulty. Social Security relies upon the testimony of vocational experts regarding the availability of jobs in the regional economy (i.e., the state where a claimant resides) when considering whether or not there are jobs existing in significant numbers that a claimant can perform despite their impairments.
Second, the system is not “ravaged by fraud” like Mr. Kroft stated. Of course the actual fraud levels in government-run programs like Social Security are nearly impossible to accurately measure. Predictably, liberals say fraud levels are low, while conservatives like Senator Coburn insist they’re astronomically high. Most estimates are between 1 and 10% of the total spending in the Social Security Disability program is fraudulent. That figure is considerably low in light of the percentage of the population receiving benefits from Social Security. Notably, fraud may take on several meanings. In the context of Social Security benefits, fraud means that a person received disability benefits to which they were not entitled or more in benefits than they should have received. The Government Accountability Office conducted an interesting and enlightening study in 2010 on Social Security Disability recipients who were also Federal employees. Of the 4.5 million Federal employees studied, only 1,500 out of the 24,500 eligible for benefits were receiving improper disability payments. That is about 0.03 of 1% of the 4.5 million and only about 6% of those receiving benefits. The GAO chose 20 individuals from that lot of 1,500 for additional analysis and concluded, not surprisingly, that only 5 cases involved fraud on the part of the individual, 11 cases involved some potential for fraud, and 4 more cases did not involve fraud on the part of the recipient but some type of administrative error by the Social Security Administration. Assuming that study is representative of the frequency of individual fraud versus administrative error, Senator Coburn needs to reassign a significant portion of the blame to the government and stop singling out the helpless.
Moreover, Senator Coburn told viewers that his staff audited the cases of 100 disability claimants and their research showed that about 25% of the cases were not deserving of benefits while another 25% of the cases were “questionable.” I have to wonder if Senator Coburn’s staff applied the law on disability as it is written or if they employed the same erroneous standard that Senator Coburn shared on 60 Minutes and in his testimony before the Committee on Homeland Security and Governmental Affairs.  In his opening statement in August 2010, Senator Coburn told his colleagues, “[a]nd if you read the definitions in the Act, you will be astounded because one of the requirements is that you cannot perform any job that exists in the U.S. economy.” The Senator’s testimony in 2010 is equally as deceptive as what he told the viewers of 60 Minutes more than three years later. The footage of the research conducted at Senator Coburn’s direction showed several young interns thumbing through the decisions of administrative law judges. Common sense dictates that a congressional intern lacks the discernment and understanding of an experienced judge- the presiding judge reviews all the evidence, listens to the testimony, evaluates the credibility of witnesses, and applies the law as written. Yet, Senator Coburn believes that his research project lends credence to the theory that the disability system is ravaged by fraud. I can only hope that the American people were not so easily duped given the Senator’s twice-professed unfamiliarity with the law.
Maybe 60 Minutes is the real fraud here. The credibility of the report on Benghazi came into question immediately after it aired. Various news outlets criticized CBS for not revealing that Davies, on whose recollections the Benghazi segment was largely based, was the author of a soon-to-be released book published by a CBS-owned publishing company. CBS is keeping mum on the investigative research or lack thereof which preceded the interview with Davies. Against this backdrop, it is none too surprising that the “Disability U.S.A” segment likewise missed the mark, leaving the story of the disabled American untold.
So what is the real story of the typical disability claimant? The clichéd pseudonym John Doe will play the role of my typical client. Mr. Doe is a 56-year-old married man with an 8th grade education and three grown children. He can read and write, he tells me, but not too well. The various forms he fills out in my office suggest that he writes on a 6th grade level or less. He left school after repeating 8th grade for the second time because his dad left home; someone had to work to support his brothers and sisters. John lucked out and got a job working as a janitor at a large textile mill at age 17. After fifteen years, he worked his way up to shift supervisor. He continued in that capacity for seven more years until the plant closed down. After that, John accepted numerous short-term jobs through a local temporary services agency because no one would hire him to do anything else. He tells me that he woke up an hour or two early to take a long hot shower during the last few months of his employment because he woke up so stiff most mornings that he could barely get dressed.
John always wanted to go to the doctor to get checked out but he never had health insurance. Seeing a doctor, to him, is a luxury for rich folk. One afternoon, John turned the wrong way while working in his yard and he felt a pop in his lower back and then a strange sensation as numbness overcame his left thigh and he could not stand up straight. He herniated a worn-out disc in his lower back. Physicians at the emergency room sent him home with ibuprofen despite John asking for something stronger. One emergency room physician labels John as malingering and pain-med seeking, which I discover later when reviewing the medical records. John is finally sent to a charity orthopedic clinic for further evaluation after pleading with one particularly sympathetic emergency room physician. An MRI study is performed and John gets a bill in the mail a few weeks later for $1,900. The MRI shows the doctor what John already knew- he needs back surgery; he has no insurance to cover the procedure. The bill collectors are calling daily, and John adds the bill for the MRI study to the stack that overtakes the coffee table. He asks me if I want a copy of the bills but I tell him I cannot do anything about them. I suggest that John file for Medicaid for the Adult Disabled, but he has already contacted the Department of Social Services and his wife’s income as a sewing machine operator disqualifies him financially.
Already on the verge of devastation, John asks me how long it will take to resolve his disability case and I hesitate to answer. I hesitate because I know John does not want to hear that the disability appeals process is inexcusably lengthy and trying. I eventually concede that the first appeal will take approximately 4 to 6 months but that only about 10% of cases are overturned as this level. In fact, the same state agency that reviewed his case the first time will review his case and doctors who have never seen him or examined him will again make the decision. In the likely event he is denied, we will request a hearing with an administrative law judge. “About how long does that take,” he inquires. Again I pause before telling him that there are about 12,000 people in the Charlotte region waiting on a hearing, and only about 12 administrative law judges. I explain that the average wait for a hearing is somewhere between 14 and 18 months after the appeal for a hearing is filed. An astute John points out the inevitable truth; “That’s another two years, at least,” he mumbles, his voice fading off from across the table. John wants to know if there is any possibility of getting a hearing sooner or resolving his case without the need for a hearing. I assure him that we will do the very best we can, but that most claimants have to go in front of an administrative law judge because that’s the way the process goes. “If I could work, I’d be at work right now and not here in your office,” John candidly tells me. But John doesn’t have to tell me that- his prior dedication to the work force is proof enough.
At this point I advise John to get as much medical treatment as possible because medical records are the only evidence we will have to prove his case. His puzzled look is understandable since he just finished telling me about his difficulties securing any medical treatment. I shake his hand and see John off. I am ashamed that he came to me for a way out and I could not give him one that was more appealing. John calls me to check in a few weeks later and tells me that they are falling behind on rent because his wife’s hours were cut. Again, I can propose no helpful solutions for his dilemma. I tell him to stay the course but he is losing hope so I recommend that he sees a therapist; but again, he cannot afford one. He fortunately secures treatment with a sliding scale clinic in his community but they are not able to treat his unbearable back pain. Pain, they tell him, cannot be treated at a sliding scale clinic. John becomes noticeably frustrated with me in our subsequent conversations because my work on his case to this point is not evident. I empathize with him and tell him we still have about another year before his case will be heard. He tells me again that he has lost everything he worked his entire life for, and I can only say I understand even if I really don’t. It is difficult to fully appreciate such a delicate situation when you have never been without some source of income for over a year.
About two years after John first comes to me and after he has lost nearly everything, we finally have a hearing in his disability case. The hearing goes well and we wait several more weeks before we get a decision from the judge finding John disabled. A few weeks after that, John finally receives some retroactive pay for the time he was out of work- only about $30,000 for the last two and a half years. The backpay is barely enough to cover the bills he and his wife accumulated, but at least he has a monthly check of about $1,200 and Medicare coverage to look forward to; no doubt a meager attainment for someone who endured so much.
I am humbled every day by clients like John- those who persevere in the face of insurmountable obstacles. It goes without saying that ultimately prevailing in a disability case like John’s is indescribably rewarding. Coming to the defense of my clients when they are snubbed by the media is similarly rewarding. Sadly, John’s story is commonplace. Misleading media reports on the disability program like the one recently aired by 60 Minutes are also regrettably commonplace. I long for a time when our disabled population is not a cheap and easy scapegoat for our nation’s financial crisis. Until then, I will continue diligently representing the John Doe’s of the world despite whatever ill-conceived opinion Senator Coburn and others have of them.
 U.S. Senate, Committee on Homeland Security and Governmental Affairs, Social Security Disability Fraud: Case Studies in Federal Employees and Commercial Driver’s Licenses, Hearing, August 4, 2010 (S. Hrg. 111-871). Washington: U.S. Government Printing Office, 2011. Accessed via: http://www.gpo.gov/fdsys/pkg/CHRG-111shrg63828/pdf/CHRG-111shrg63828.pdf