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-SEVEN: CHAPTER SIXTY-NINE AND AFTERWORD
Chapter Sixty-Nine
In 1987, my part in the Social Security disability reviews was finally over. Or was it? It was hard to tell.
Although the government ultimately told me, "Never mind!" I could not leave the review years in the past. Perhaps because Social Security warned me that the past would one day be my future: "your health may improve. Therefore, we'll review your case again."
Long years ago, I filed an insurance claim and found myself trapped in a system designed to abuse anyone unfortunate enough to have to use it. Now, after years of my government calling me a liar and a cheat, I'd won my case.
Of course, my "win" had strings. I understood the message of the "we'll review your case again" paragraph perfectly well. I was allowed to return to my normal life, as long as I took no action that called attention to my case. After all, one never knew what Social Security might consider potential evidence of medical improvement. For years, I was afraid to move, not knowing what effect filing a change of address might have on the status of my claim.
And then one day I realized I was living in fear, and I had to do something to confront it. I had to find some way of fighting back. Now, on "well" days, I visited the midtown library. I brought home photocopies of magazine articles and New York newspaper columns from 1977 through 1986.
When I began, I had some vague idea that I'd refer to them when I finally found a way to tell my story. But as I read them I came to understand that I was wrong. The Social Security reviews were the story.
The government was right, after all. I was only a number. For six long years my personal life had only existed as a small part of the background of national events.
Yes, I had a story to tell. But it was only peripherally "my own." That thought made me bitter. What other things might I have done with those lost years?
Certainly nothing "productive" enough for my government. But then, disabled people always seemed to be getting in their government's way. As I recall, Hitler's Germany conducted disability "reviews." His government terminated the people instead of the benefits. As far as I could see, that didn't give America any claim to moral superiority.
Kill the people, or take away their money and their medical coverage and let them starve to death in front of your eyes - what's the difference in the long run? Of course, that was a jaundiced point of view. Some of us lived to fight another day, and win. Still, there were days in my struggle when I wasn't sure which system I preferred.
Now I knew that I only had one Social Security appeals process in me. God help me when the government "reviewed" my case again.
Some nights, as I lay in bed not sleeping, I wondered what America had learned from this exercise in governmental power. Had "the system" improved? Well, no, not really. On June 9, Stuart Taylor, Jr. reported in the Times that "Justices Uphold Regulation Limiting Disability Benefits." The Supreme Court had just decided that Social Security could use its "severe impairment" criteria, looking only at medical evidence, without regard for a claimant's age, work experience, or education.
However, the court also "interpreted the regulation so narrowly, while criticizing the government for using it improperly against qualified applicants," that the ruling ended as a stalemate. When I thought about it, I agreed this was a fitting resolution. In politics there are no ultimate victories. There's only choosing sides.
Thus I was not surprised to read, on October 16, 1987, a Robert Pear article entitled "New Reagan Policy to Cut Benefits For the Aged, Blind and Disabled." Apparently the Reagan Administration had found a new way to "reduce welfare benefits for many elderly, blind and disabled people who receive free food, shelter, firewood or winter clothing from churches and charitable organizations."
"Such non-cash assistance," Pear reported, "must be counted as income under the new policy, Administration officials said today." As usual, there'd been no "public announcement." Instead, "Rhoda M.G. Davis, an Associate Commissioner of Social Security, declared the new policy in a confidential 'emergency instruction' to Social Security field offices last month."
Once again, "Members of Congress, church groups and advocates for the homeless" were expressing "outrage at the new policy." Sharon M. Daly - of the United States Catholic Conference - was quoted as saying "The more we help these people through local parish programs, the poorer they will be."
It was late morning. I was taking a few quiet minutes to read the newspaper before my daughter's nursery school was finished for the day. Now, as I got up from the table and dropped the folded newspaper into the trash, I found myself thinking of one of the final lines from Theodore Sturgeon's science fiction novel Venus + X: "They're at it again, the idiots."
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Afterword
In the late 1980's, the disability "reviews" finally ended. They left little behind but bitter memories. Or so I thought. Then a year after I declared bankruptcy and moved my family to New Mexico, a friend sent me a clipping from the New York Times. Dated April 18, 1992, it was an article by Robert Pear.
As I opened the envelope and began to read, I had the odd feeling that I'd slipped backwards in time. Although the clipping was dated 1992, the article was titled "U.S. To Reconsider Denial Of Benefits To Many Disabled: Reagan Policy Reversed: Settlement in New York Likely to Set Precedent and Bring Large Back Payments."
Eleven years after Reagan's disability policies began, "Federal officials" now "agreed to reopen tens of thousands of cases" in New York. This agreement came as the result of an ongoing New York State lawsuit "involving more than 200,000 people." Included in the 200,000 were all those who'd been "denied benefits at any point in the 11 years since the Reagan Administration began a systematic campaign to purge the Social Security disability rolls."
It was impossible to determine how many "review" cases were lumped together with people who'd filed new applications during the 1980's and been denied. But if only ten percent of the cases in New York represented "reviews," that could mean there were as many as 200,000 still unresolved "review" cases nationwide.
I put the clipping down on the kitchen table and sank into a seat. For years now - as I immersed myself in the history of the "reviews" - I assumed that most cases had eventually been settled like mine. As for the other disability issues, they must have been more or less satisfactorily resolved.
Oh, once I'd been sure that those who had the misfortune to become disabled during and after the Reagan years would be out of luck. I even comforted myself - during the bad times - by telling myself the common man would wake up some day when he realized he couldn't collect his benefits. But the common man hadn't awakened. There'd been no public outcry about the ongoing administration of Social Security's disability insurance. I concluded that Reagan must have contented himself with squeezing his "savings" out of the 500,000 cases he'd managed to "review" before the shit hit the fan.
Now it finally sank in. The government had used its "review" techniques against the newly disabled. And with such an unsophisticated population, probably with devastating success. The "reviewees" at least could claim the moral and legal high ground of having once proved their claims to Social Security. We'd also gained experience in dealing with the system. Our special status eventually won us important legal recognition when Congress passed its Medical Improvement law. But new applicants, still used to trusting their government, would be more likely to walk away when they got a letter informing them they did not meet Social Security's criteria for disability.
How had the conspiracy of silence continued? For years, I'd lived with the figure 500,000 - 500,000 people plus their dependents - a number I knew came out to more than one million people whose lives had been altered by Reagan's disability policies. In 1985, Robert Pear reported that of the original 491,000 people reviewed, 200,000 had won reinstatement. That only left 300,000 cases unaccounted for. One of the excuses I made for America's continuing indifference was that the number of people affected - as time wore on - was statistically small.
Now I asked myself, how many new applicants had been illegally rejected during the last eleven years? In 1982, the Times reported that total disability applications for 1981 had been 1.1 million. This figure represented an unprecedented ten percent decrease in new claims. Of this 1.1 million, 345,300 were accepted, a little more than one in three.
Over eleven years, we were speaking of almost 12 million applicants, with approximately eight million rejections. How many of those eight million Americans had been denied their right to collect benefits from a policy they'd been required to pay premiums on their entire working lives? And how could millions of disabled citizens drop so completely out of America's consciousness?
How had our government's disability policies been so successfully kept a non-issue? Even I was lulled, as the years went by without an outcry. Now it seemed clear that even out of my small "privileged" group of reviewees, hundreds of thousands of wrongful decisions were never reversed. As "U.S. To Reconsider Denial of Benefits..." noted, "of the people initially denied disability benefits, fewer than 6%" had been able to "persist in their appeals long enough to get into a Federal Court." And even this figure was inflated, because "some have died while waiting for court decisions."
So Reagan and his advisers won, after all. For more than a decade, the government succeeded in denying the disabled the insurance benefits they were "entitled" to. Why, then, should the government be willing to settle now? And if there was a reason, why should we believe that this settlement "should set a pattern for government conduct in other parts of the country"?
The answer to these questions was, as usual, that the current settlement offer was an effort to avoid something worse. In this case, a "court order that could have been more burdensome and more embarrassing to the government in this election year."
We weren't dealing with the Reagan Administration any more. The disability reviews had gone on so long that Reagan completed his full two terms and his former vice-president had almost completed a term of his own. Now - as Pear pointed out - both "President Bush and the Social Security Commissioner, Gwendolyn S. King" had a stake in proving that their policies were "'kinder and gentler' than those of the Reagan Administration."
Or in making it look that way. For although "the Reagan Administration announced in June 1985 that it would follow appeals court rulings...judges found that Social Security officials continued to ignore many rulings after that date." In fact, "while the agency told judges and the public that it was adhering to court precedents, it rarely instructed its employees to do so."
As late as 1989 - George Bush's first "kinder and gentler" year in office - "the Justice Department said the executive branch was not subordinate to the judicial branch and was not required to follow statements in circuit court opinions." In other words, the government asserted its right to "nonacquiese" to the law.
Thus, long years after most Americans thought the "reviews" were over - and the Social Security disability system had emerged essentially unchanged - "in most cases, a misreading of the law by Social Security officials" had gone "uncorrected."
Now, all these years later, Social Security had once again agreed - at least in New York - to "instruct agency employees...to follow the legal principles, or holdings, laid down by the United States Court of Appeals for the Second Circuit." New York State residents "who were denied benefits after 1981" would receive "good news" letters, to be "sent out within eight months after the settlement becomes final." The claimants, or their survivors, would have another six months to respond.
Assuming the settlement became final as of May 19, 1992 - the last date for claimants to "file comments" on the agreement - these cases would begin to be resolved by January 1993. This meant that by January of 1993 claimants could start attempting to "prove they were wrongly denied benefits."
Fr the government - in this settlement - had only agreed to "reopen" these cases. The letters Social Security planned to send out would only offer to "re-examine" the claims. No mention was made of how long this "re-examination" process might take. I assumed Social Security would begin with its usual time frame, three to six months. Much longer delays were likely. The State Agency would suddenly be swamped with tens of thousands of cases to re-examine.
Some cases might be settled by July of 1993. But only if the claimants or their survivors still had an address at which to receive a letter, still had or could obtain "proof" that their cases had been mishandled, and were competent enough to fulfill all the necessary paperwork steps in the "re-examination" process. At the present time, these rules only applied to residents of New York State. Yet, incredibly, this offer represented the greatest progress made on the disability "reviews" and denials thus far.
Under the terms of the settlement, claimants or survivors who "proved" their case could collect up to "four and a half years of past benefits in addition to regular benefits in the future." In other words, in exchange for agreeing to follow the law, the government now would have to repay - at the most - four and a half years of the more than eleven years of benefits it had illegally withheld.
Of course, as the related Robert Pear article "Ailing, Without Benefits, And Awaiting Suit's Relief" made clear, this was wonderfully "good news." Many disabled people might now regain some quality of life - or even prolong their lives - if their benefits were reinstated. Unfortunately, for many others, it was years too late.
Appearing directly after "U.S. Plans to Reconsider Benefits...," on the same page of the Times, "Ailing, Without Benefits..." mentioned two deaths. First, a 24-year-old man who died of the heart condition Social Security denied he was disabled by. His mother, noting that he had been "forced to go on public assistance" and to "live on $100 a month," remarked, "He should not have been subjected to welfare."
Second was the case of a 25-year-old man who died of complications related to "mytonic muscular dystrophy." His mother was "trying to get back benefits" because "I still owe for his funeral bill."
In May, my friend sent me a follow-up clipping. Dated May 9, 1992, and again from the Times, the article stated that "U.S. Wrongly Denied Aid for Impaired, Judge Rules." Under the byline Robert D. McFadden, it reviewed a Federal Judge's finding that "the Federal government" had "'engaged in a pattern and practice of 'misapplication' of its regulations" by "refusing to consider the age, education and work experience of applicants" and "by refusing to consider the combined effects of multiple non-severe impairments."
The government argued that the claimants had no right to sue. Many of them had not individually pursued every appeal option the system allowed. But the judge in the case - Judge Conner - noted that "applicants...could not reasonably be expected to know that S.S.A. adjudicators were engaging in a pattern and practice of misapplying the severity regulations." As a consequence, "the Federal Government improperly denied disability benefits to 20,000 mentally and physically impaired New Yorkers in the late 1970's and early 1980's."
"Many of these people," Legal Aid lawyer Matthew Diller was quoted as saying, "worked for years and paid into the Social Security Trust Fund precisely to protect themselves in case they became disabled." Once again, there was speculation that this ruling "would affect scores of other lawsuits around the country."
"Officials of the Social Security Administration," McFadden noted, "could not be reached for comment tonight."
"Tell them that if they don't respond within ten days their lives will be terminated," I muttered to myself.
Once again - as I had not for a long time - I became aware of the great weight I carried on my heart. The weight of broken promises and unshed tears. The weight of living in a commentless America.
I didn't have to wait for the presidential debates to know that the Social Security reviews would not be mentioned. The events I remembered so vividly never happened. Or, they happened only as a brief aberration, sometime in the early 1980's. Why would anyone want to dredge up that old news all over again?
It was like the article I read while waiting in the dentist's office. It said the Homeless were not really such a big problem because their number had stopped growing as quickly as expected. The problem, the article stated, was being exaggerated by groups that owed their financial existence to serving the Homeless. But now, research showed, many of the Homeless could be better served by job retraining programs.
I thought of the men and women I saw run screaming down the streets, shaking their matted heads in bewilderment at the voices that haunted them, and I felt weary and old.
How long, I wondered, would the disinformation campaign go on? As long as it was successful, I supposed. All the Homeless need are job retraining programs. None of them are actually dying, or crazy. And no one is truly "Disabled." We're only "differently-abled." All we need is a ramp and few "incentives" to make us productive citizens again.
Nineteen ninety-two drew to a close. President Bush was not re-elected. On television, Charlton Heston offered us a big incentive for taking a subscription to "Bill Buckley's National Review," a companion piece entitled "The Real Reagan Record."
On January 12, 1993 CNN Headline News broadcast the hearing in which the House Committee on Finance confirmed president-elect Clinton's choice, Lloyd Bentsen, as Secretary of the Treasury. When asked about the Clinton Administration's economic priorities, Senator Bentsen said the deficit was number one and noted that everything else was on "the table" including "entitlements."
In other "financial" news, CNN noted that a "conservative think tank" was preparing a print campaign to convince America that increasing taxes on the rich would ruin the country. And tomorrow, January 13, 1993 President Bush was to award former President Reagan the Presidential Medal of Honor - the highest civilian honor in existence.
In one week, Bill Clinton would be President of the United Stated. All over America, invisible disabled people waited to find out if America's latest war on the Disabled was really and truly over.
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