AMERICA'S WAR ON THE DISABLED: 1975-1992:(A History of the Social Security Disability Reviews of the 1980's)

by Tennise Broeck Morse

SECTION TWENTY-FOUR: CHAPTERS SIXTY THROUGH SIXTY-TWO

Chapter Sixty

In February of 1984, I finally got legal help. Mrs. Haines was a paraprofessional. Her name had been mentioned to me before, but after my poor experience with Legal Aid, I wanted a "real" lawyer. Well, I had two "real" lawyers, and they both lost vital aspects of my case. Now I wanted someone who understood the system. I made an appointment to see Mrs. Haines at the "Help Center" where she worked.

Ten minutes after I met her, I knew I was in the right place. Social Security was Mrs. Haines's area of expertise. My intuition told me to trust her judgment, and I committed myself to following her advice. That advice was not only substantial, but remarkably concrete. Soon I was very busy, and my yellow pad began to fill with notes again:

2/84:

3/84-4/84:

"Sure," I chuckled to myself. "Sure, why shouldn't you ask for a sixty-day delay because you can't find my file. Guess what? I'll even give it to you. Makes me look cooperative to the Judge."

As I sat scheming a way to turn this latest event to my advantage, I had no conscious awareness of how my years of fighting had changed me. I didn't even realize that - in a mean-spirited and embittered sort of way - I actually enjoyed the fight. But then, I'd been forced into making my disability case the focus of my life. Nothing else - not Jimmy, not the children - mattered as much.

Once I believed in peace. Now I gloried in the war. On the attack this time, I was suing my government in Federal District Court. Every battle increased my blood lust. Each step I took forward, even just filing the papers, was a victory. Every victory made me feel stronger. And strength was what I needed - strength to go on living with Jimmy and two children in a one-room apartment on $592 a month as Jimmy's behavior steadily got worse.

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Chapter Sixty-One

At the end of March 1984, my benefits had been terminated for almost three years. Robert Pear had a new article in the Times - "Reagan Reported Prepared To Stop Cuts in Disability." The Journal echoed this news in its May 26 article "U.S. May Halt Reviews of Disability Eligibility."

According to my calculations, Reagan "spokespeople" had made this announcement at least twice a year since 1982. Once again, the plans were "tentative." And limited. This time the Times article stated, "The Reagan Administration has tentatively decided to stop reviewing and cutting of Social Security disability benefits for 18 months."

"Reagan Reported..." noted that in "20 states the program is operating under Federal court orders with rules that differ from the national guidelines." Also, "governors in 9 other states, including New York, have halted the termination of disability benefits on their own initiative." So, "White House officials and aides to Mrs. Heckler said she was prepared to announce an 18-month moratorium next week, possibly Monday." Once again, this announcement was meant to head off congressional legislation. Because, "the House of Representatives is scheduled to vote on Tuesday on a bill that would make comprehensive changes in the disability program."

Mrs. Heckler did announce a 19-month suspension of new reviews. The House did pass, by a vote of 210-1, its medical improvement bill. Thus, the April 19 Times editorial announced there was "Sunshine, at Last, for the Disabled." Perhaps the Reagan administration had "finally stopped trying to cut benefits for the disabled under the guise of reducing fraud," but nobody seemed to notice that people whose benefits had already been cut weren't making much headway in getting them restored.

Still, someone at the Times was clearly experiencing as much frustration as I was. The paper's language had never been so vitriolic. The disability reviews were characterized as having been based "on the Darwinian theory that those who really deserved support would fight their way through a complicated appeals process." The editorial's author noted that "while a great many won vindication," many others were "too destitute or mentally confused to appeal." Now the editorial stated that the "Social Security agency didn't dare submit the brutal policy to the normal publication and comment process." Therefore, "it was stealthily applied."

"Sunshine, At Last..." noted that Secretary Heckler had "urged Senator Dole to release a variation of the House bill that had been pinned down for months in his Finance Committee." Both bills would "require Social Security to show that the medical condition of anyone dropped has actually improved." But as far as I could see, the "good news" no longer applied to me. My case was languishing in Federal District Court. And, as Robert Pear reported in the Times on May 13, "U.S. Flouts Courts in Determination of Benefit Claims."

Simply put, Social Security was still refusing to comply with lower court rulings except on a case-by-case basis. Every claimant who appealed was forced to fight an individual lawsuit. According to Pear, "officials say they do not even have to apply the court's ruling to similar situations in the same state or judicial circuit." Pear's article mentioned the moratorium on new disability cutoffs but stated "the moratorium does not apply to the thousands of people with cases pending in Federal courts." Thus, the argument over the disability reviews was far from settled. Once or twice a month through 1984, the papers continued to follow up on the issue's progress - or lack of it.

In May, "Court Voids Deadline for U.S. in Disability Claims Reviews." In June, Alfonso A. Narvaez reported "U.S. Courts Are Jammed By Caseload." And at the end of July, there was a Times editorial "The Right Reform For Disability."

In September 1984, there was finally a breakthrough. A few days after the Times ran Robert Pear's September article "Court Rejects Judges' Suit Over Disability Policy," Pear broke the long-awaited news that "Conferees Agree On Bill To Revise U.S. Disability Law." Subtitled "Eligibility Is Liberalized; Issue Is Seen as the Focus of Democrats' Charges That Policies Are Not Fair," the article had substantial news to present under the headings "Emotional Political Issue," "48,000 Cases Pending," "Benefit Cutoffs Suspended," and "Standards For All Reviews."

"House and Senate Conferees" had reached agreement on a Bill to "overhaul the Social Security disability program." This agreement would "liberalize eligibility standards and make it harder for the Government to remove people from the rolls." For once, this news actually applied to me. Rudolph Guiliani, the United States Attorney for the Southern District of New York, was reported to have refused "to defend the government in two dozen cases." Mine was not one of them, but perhaps it would be now.

As usual, this concern with the process resulted from personal experience with it. As the Times noted, "United States attorneys have expressed dismay at the rapidly growing volume of Social Security cases." In fact, "Social Security officials said there were now 48,000 disability cases pending in Federal courts around the country." One of them was mine. Now the conferees agreed, in effect, to applying a medical standard. And "the standards in the bill would apply...to many disability cases pending in Federal courts."

There was some bad news. "Individual court cases and people in certified class actions would be sent back to the Social Security Administration for review under the new medical improvement standard, Congressional aides said." Sent back, for a re-review? Now what exactly did that mean?

Well, it meant that once again the Administration decided to support "liberalizing" disability standards to head off something worse. In this case, they "were worried that a nationwide class-action suit might be filed on behalf of all the people who had been improperly removed from the disability rolls." Such a suit might well have demanded, and gotten, instantaneous reinstatement instead of re-review.

Still, a victory was a victory. Or was it? The Times reported "Decency, at Last for the Disabled" on September 21, and "U.S. Official Curbs Disability Actions: Jersey's Federal Attorney Says Handful of Benefits Cases Appear Indefensible" on September 23. But more somber news was soon to break. The Reagan administration was still holding every inch of ground it could. On October 16, 1984 Fay S. Joyce reported, "Bush Backs Policy on the Disabled: Blames Congress for Removal of 500,000 From the Rolls of Social Security Plan." And on November 5, Robert Pear informed us that "New Benefits Law Provokes Dispute."

With the ink hardly dry on the compromise Bill, "a law newly enacted in an effort to end three years of bitter dispute...has spawned more conflict." Although "the measure was passed....to correct what legislators viewed as the improper denial of benefits," the Administration had "been urging courts to interpret it in a manner that would restrict the payment of benefits granted by court rulings to thousands of people."

Now "government attorneys, citing the new law," had "asked the United States Court of Appeals for the Second Circuit, in New York, to curtail benefits the court had previously granted to 50,000 mentally disabled people in New York State." In appeals, these 50,000 people's benefits had been restored. In addition, "100,000 more nationwide" who remained "involved in lawsuits" could well be affected.

Incredibly, "in briefs filed in courts across the country in the last three weeks, Justice Department attorneys...have interpreted the law in a restrictive manner, saying it should wipe out benefits granted by Federal judges in recent court cases," because "such rulings, based on findings of unlawful conduct by Social Security officials, were, in many cases, more generous to beneficiaries than the new law."

The new law, after all, only promised to send cases back to Social Security to be re-reviewed in light of a medical standard. It did not promise to reinstate your benefits outright, or to pay back benefits due.

And so it went. A well-publicized victory, and then the Reagan Administration found a way to make it a defeat. I could no longer get excited by Robert Pear's December 9, 1984 Times article "Proposals for Mentally Disabled Ease Eligibility for U.S. Benefits." Didn't the public realize that Reagan wasn't giving up?

Apparently not. Not even when there was a report on artificial heart patient Barney Clark. He took the occasion of a phone call from President Reagan to complain about not being able to get his disability benefits started. In a matter of days the check was "in the mail." Roy Benavidez's benefits were also reinstated shortly after his story hit the papers. But for many of us the check was lost in limbo, as our cases continued to grind on.

If one kept the proper attitude, one could see this as a very interesting war. A clever war, between politically clever people. Point and counterpoint. Advance and retreat. En garde. Touche', "Jane, you ignorant slut." It was all so civilized, as politicians and government representatives argued over the number of limbs you would need to be missing before your impairment was "severe."

Still, in 1984, the tide was turning. Unfortunately, I wasn't in much of a position to appreciate it. Through all of 1984, most of my time and energy was taken up by my Monty Python Disability Case.

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Chapter Sixty-Two

Spring 1984:

In the last month I've been scheduled for three examinations by disability doctors, on three different dates. One exam was physical, a response to my request for a New Benefits Period. Two were psychological, the result of Mrs. Haines' claim that I'm psychologically disabled. The last two occurred at the same location a week apart, and duplicated each other, with the exception that one of the doctors involved was not a primary English speaker.

At my first psychological exam, I opened my mouth and poured my feelings out in one vast primal scream. Tears flowing freely, hands clenched at my sides, I sent the story of my years of review into the examiner's tape recorder, expecting no response.

"There is no treatment for multiple sclerosis!" I screamed. "Now all I want is enough money to feed my children, to live with my children, and watch them grow. Is that too much to ask?

I looked at the examiner and saw that his face was white, his hands were shaking. "I'll help you," he said suddenly. I couldn't comprehend it. Was I dealing with a representative of the Social Security system? At home, exhausted, lying in the corner while the kids watched "Sesame Street," it came to me. In all my recent actions, I was once again dealing with New York State. And New York State now realized it had a vital interest in seeing my benefits restored.

I couldn't forget Mr. Harris and his assessment of my "residual functional capacity." I still had the letters sent to me on New York State stationery, letters that informed me I had been treated and my condition had improved. But New York State was on my side now, or at least the State Agency that made Social Security recommendations to the federal government.

This was good news, yet it confused and angered me. I felt as though a foot that had been asleep for a long time was waking up, and I resented the painful feeling of life returning. How dare a governmental representative turn into a human being and offer to help me? Didn't he know that hope would weaken me when I most needed strength to fight?

The problem was, nothing was simple any more. New York was my friend, if I tried to enter a Class Action Suit or apply for a "new benefits period." But the office of Rudolph Guiliani, the United States Attorney for the Southern District of New York, defended the government against my legal case. It was already asking me for more delays.

The winds of political change were blowing my way. But I'd lived in a restricted world so long - a world where there was nothing but Jimmy, the coupons, the children, the scavenging, and fighting my case - I couldn't accustom myself to "real" life, with all of its complexities again. Still, I knew that - if only for the children's sake - I had to try.

5/84-7/84:

In July, Jimmy informed me that, henceforth, I would always address him as James - in public, in private, and in front of the children. To make his point, he took out a camping axe and chopped a scavenged jewelry box to pieces as I watched. Amazingly, it was easy to comply. I never spoke to him again as Jimmy. The man I'd run away with long ago was Jimmy. This man was a clever, cowardly stranger. I couldn't tape-record his statement for forwarding to the "proper authorities," nor promise to help him. It was years too late for that.

8/84:

Got a letter today, which stated I didn't qualify for Medicare benefits because I'd only been disabled since March. Phone calls established that the letter should have said my application for a New Benefits Period had been approved. But Social Security set the "onset Date" for March, 1984 when I applied, instead of for July, 1983, just after I lost my hearing. Then, they mistakenly imposed a six-month waiting period for new applicants, although the booklet enclosed with my acceptance letter stated that no waiting period would be applied if I previously received Disability benefits in the last five years. This means my acceptance for a New Benefits Period has come at the same time as the Judge's order that my benefits be reinstated while Social Security looks for my case file. In other words, I've received two conflicting acceptances, under different regulations, through two different routes, at exactly the same time.

9/84:

In September, I insisted that James and I file for new birth certificates for the children, giving them James's last name and listing him as their father. "Hey," he said, "I'm not going to give anyone a copy of my birth certificate. You know how I feel about official papers." "You won't need a birth certificate," I said. "All you have to do is have this form notarized. The notary needs identification, and I've gotten some for you, a copy of my credit union card in your name. You do it, James, or you get out tonight."

I understood by now that he wasn't getting out, that I'd probably have to call the police to ever get him out. What an advantage that his name wasn't on the lease.

I'd called his bluff and, furiously, he agreed. I went with him to the notary, ignoring the hatred in his eyes. At three, our son was getting old enough to understand the meaning of last names. Now, James would never have to hurt him or his sister by insisting he wouldn't recognize them because they just weren't good enough.

10/84:

12/84:

The Federal Court Judge remanded my case to Social Security. My review begins again from scratch.

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