The American Association for Disability Policy Reform    

—   rehabilitation first   —

The Destruction of Opinion Evidence by the Social Security Administration

The following is the history of the American Association for Social Security Disability Consultants' (AASSDC's) attempts to stop the destruction of medical consultant opinions by clerks (examiners) and their supervisors and the Social Security Administration's interference with the AASSDC.   Note that the Social Security Administration eventually made the destruction of certain evidence routine (mandatory) through a policy change.   We believe that these practices are inconsistent with the American public's interest in a fair and honest adjudicatory process and should never happen.

For many years, disability consultants (physicians, psychologists and other experts) have been aware of the occasional destruction of their opinions (case assessments) by clerks (disability examiners) and their supervisors who disagreed with their conclusions.   Related problems have been the altering of opinions without the consultant's knowledge or consent, the pressuring of consultants by clerks and their supervisors to produce opinions having specific conclusions, and the seeking of the opinions of specific consultants for the purpose of obtaining specific results ("doctor shopping").   We believe that these practices are inconsistent with the American public's interest in a fair and honest adjudicatory process and should never happen.   A 2007 survey of consultants, by the AASSDC, revealed that in 75% of states, consultant opinions had been destroyed and that 71% of consultants felt that the practice of seeking the opinions of specific consultants for the purpose of obtaining specific results ("doctor shopping") was common.   Because prior to the creation of the AASSDC in 2007 consultants had no effective representation with Congress or the Social Security Administration, these concerns had not been raised.

The national standard for the creation and preservation of records, used in almost all financial, medical and governmental entities, requires that anything placed in records remain in those records permanently without alteration.   Changes in facts or opinions are noted by amending the records, not by destroying or altering prior records.   Financial, medical and governmental institutions are expected to establish policies for the preservation of records prior to opening their doors.   For example, a bank is expected to guarantee the preservation of depositors' records and assets from the outset.   Depositors are not asked to demonstrate losses in order to obtain those guarantees.   Similarly, the Social Security Administration should have guaranteed the integrity of claimants' records from the start of the disability program and long ago have effectuated that guarantee through policy statements, regulations and employee training.

On August 24, 2008, the AASSDC sent a letter to then Social Security Commissioner Astrue expressing their concern about the destruction and alteration of consultant opinions and "doctor shopping."   The AASSDC recommended that the Social Security Administration establish a policy guaranteeing the preservation of consultant opinions (read letter).   On September 3, 2008 the AASSDC requested a meeting with Commissioner Astrue to discuss these and other matters.   The AASSDC never received any response to that request.

On October 7, 2008 Linda S. McMahon, then Deputy Commissioner for Operations responded, stating that the Social Security Administration has a "robust records management program" with audit trails, that "doctor shopping" was not part of the adjudicatory process, and that the pressure to allow or deny cases which consultants sometimes feel could come from the "refinement of medical evaluation and policy."   Ms. McMahon pointed out that she had discussed our concerns with the Presidents of the National Association of Disability Examiners and the National Council of Disability Determination Directors and found that they were not aware of the practices which the AASSDC had mentioned (read letter).   The AASSDC noted that the organizations which Ms. McMahon had consulted represented the people (clerks and administrators) who were responsible for destroying consultant opinions.   This is akin to the farmer asking the foxes if there is anything wrong in the henhouse.

The AASSDC responded on October 23, 2008, pointing out that they had evidence of continuing problems, with two instances, in separate disability determination services, in which five documents had been destroyed and one consultant had been forced by end-of-line "quality" reviewers to rewrite his/her opinion twice until it changed the decision from a denial to an allowance.   The AASSDC again pointed out what the AASSDC hoped was their and the Administration's mutual interest in having record preservation practices consistent with an honest and open adjudicatory process (read letter).

The AASSDC also responded on November 5, 2008, noting that they had become aware of detailed instructions, written by DDS information technology personnel, for the copying, modification and deletion of documents from the electronic folder (read letter).

Ms. Ruby Burell, then Associate Commissioner for Disability Determinations responded with an undated letter which the AASSDC received on November 17, 2008.   Ms. Burrell pointed out that the Social Security disability program is "a complex program" and that an audit trail exists, and stated that she would share our concerns with other components within the Social Security Administration (read letter).

The AASSDC responded on January 10, 2009 with a letter to Commissioner Astrue.   In that letter the AASSDC noted that they had received evidence of the destruction of another consultant opinion just within the previous week.   Having had no clear indication that the Social Security Administration was seriously trying to address their concerns, the AASSDC realized that continuing to pursue this matter would probably lead to retaliation by the Administration against their members and interfere with their efforts to improve the disability determination process in other ways and elected to let the matter rest (read letter).

On March 12, 2009, the AASSDC received a letter from Ms. Burrell regarding the destruction of consultant opinions.   In the letter, Ms. Burrell stated that "We are confident that the appropriate safeguards are in place that would not permit this type of activity."   She also advised consultants to take their concerns to local management (read letter).   This is akin to asking the hens to take their complaints to the foxes in charge of the henhouse.   Since then the destruction of consultant opinions has continued.

About March 20, 2009, the AASSDC learned that a well-placed person in the Social Security Administration's Operations branch, perhaps through intermediaries, had pressured two speakers to cancel their appearances at the AASSDC's April conference.   The speakers had planned to discuss topics which would help consultants perform their jobs as consultants.   The AASSDC sent a letter to Commissioner Astrue objecting to the Social Security Administration's interfering with their organization (read letter).   He never responded to that letter.

Subsequently, the Social Security Administration revised its Program Operations Manual System (POMS DI 26510.089(C)) to require the destruction of any assessment that "does not reflect the final determination of that adjudicative level."   In making this change, the Administration made the destruction of dissenting consultant opinions mandatory, something which both Deputy Commissioner McMahon and Associate Commissioner Burrell had previously said was inconsistent with Social Security Administration policy and certainly not condoned (read the policy (see page 4)).   That policy, requiring the destruction of efidence, remaineds unchanged (at least as of 1/10/2021).

In 2011 the Social Security Inspector General "surveyed" consultants supposedly to determine how often they had had their opinions modified or deleted without their consent.   Because that survey was done through the Social Security Administration's computers, consultants did not feel that they could express their true opinions without being fired.   Therefore we and the AASSDC feel that the negative results of that survey are not the least bit valid.

Because having an adjudicatory process which is beyond reproach is clearly in the interest of the Social Security Administration and the public, we and the AASSDC ask the Administration to address the concerns which the AASSDC has raised and to adopt the record preservation practices which are used by most of the financial, medical and legal institutions in this country.   Nothing less would properly serve the Administration and the American public.


Last updated on 1/10/2021.