Pain (19 page)

The migration of theories of learned pain, malingering, and helplessness from social science, the laboratory, and the clinic into political and legal disputes should not surprise us. This movement of theory into politics and policy had long defined how pain knowledge and theory circulated. Certainly, since the 1960s, actors in law, medicine, and policy had been aware of the moral and civic stakes of judging pain. Now, in the 1980s, pain had become an index of the American welfare problem—a problem seemingly tailor made for welfare's critics. As historian Michael Katz observed in 1986, “Nobody likes welfare … Conservatives worry that it erodes the work ethic, retards productivity, and rewards the lazy. Liberals view the American welfare state as incomplete, inadequate, and punitive. Poor people, who rely on it, find it degrading, demoralizing, and mean.” Prominent voices on the right even ridiculed the notion of compassion as a misguided liberal construct. In the new administration's view, the pain disability question symbolized the fundamental challenge of their time—the need to draw a sharp line separating the fraudulent, criminal, and undeserving from the truly needy. “Malingering may be the Administration's greatest fear in relation to its disability program,” commented one observer looking back at the Reagan years, “because the government cannot financially afford to promote, even indirectly, such a practice by granting benefits to those persons not truly disabled.”
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For Reagan, fiscal austerity and cutbacks to federal aid to the poor and disabled would surely bring more pain, but it was a necessary harsh medicine to heal the suffering nation.

When Schweiker, a former Republican senator from Pennsylvania, took charge of HHS, he quickly expanded Carter's continuing review process into a more sweeping purge. The term, used by administration critics, is not unwarranted. By the time his work was done, 1.2 million recipients had been reviewed, with more than 490,000 removed from the rolls. The pace was stunning, prompting charges that the administration was being inhumane. The economic recession that year, combined with the cuts, drove many to extreme acts. Herbert Tuttle was not the only suicide attributed to the cuts in disability. A month later, Harold Lutz (a forty-five-year-old with diabetes and recovering from triple bypass surgery) shot himself as well, after spending a year trying to win Social Security benefits. In the face of such events, however, White House insiders worried not about people but about negative press coverage. Reagan's
chief pollster, Richard Wirthin, wrote to Reagan's inner staff—Edwin Meese, James Baker, and Michael Deaver—bemoaning the “negative fallout triggered by President Reagan's ‘suggested' Social Security reform package … [which had] reinforced some latent fears we know the electorate has carried about the President and more specifically about his economic program.”
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The purge of the disability rolls produced thousands of legal appeals. Administrative law judges and appeals judges grappled with the legal status of people in subjective pain, as they had for decades since the
Page
case in 1963. The danger on one side was that “incorrect denials can leave deserving claimants, who are often in precarious financial conditions, without a crucial source of income.” But the opposing danger was rewarding cheaters, since “erroneous grants of benefits reward liars at public expense, waste resources that could be put to any number of more productive uses, and may ultimately reduce the level of funding available for people who are legitimately disabled.” These tensions pitting conservatives against liberals now left the campaign and legislative battlefield and migrated into the courts. In the final analysis, this legal scholar concluded, to avoid the dangers it was best to seek a middle ground; “the public interest is ill-served by either type of mistake.”
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Increasingly, the Reagan administration's insistence on clamping down on liars and cheats won adherents in court. Law itself was in transition, with legal liberalism besieged, as Laura Kalman noted, by the New Right, by taxpayers' revolts, and by cultural conservatism. The 1970s had given rise to a new style of legal analysis, symbolized by the economics-minded Richard Posner, who insisted that all “people involved with the legal system act as rational maximizers of their satisfactions.” The mantra of law and economics declared that the courts should depend less on psychology, sociology, or compassion for its rulings and more on evidence drawn from economics and science. More and more, Social Security disability cases became tests for this conservative outlook, with judges pushed to use objectivity and economics (not subjectivity or theories of compassion) in ruling on the plea for public relief.
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In 1981, the very thing that Jimmy Carter and liberal Democrats had warned against was coming to pass—a harsh and challenging new era for the disabled. Despite critical news coverage of its policies and a growing legal backlash, the Reagan administration pressed ahead in 1982,
adopting “an ‘in house' ruling,” called Social Security Ruling 82-58, which “instructed Administration employees to credit only medically substantiated pain allegations.” The ruling declared that “there must be an objective basis to support the overall evaluation of impairment severity. It is not sufficient to merely establish a diagnosis or a source for the symptom.” By 1982, these reforms had saved $216 million and promised to save $458 million the next year. Congress, however, was beginning to balk. As the
Washington Post
reported, “Many Congressmen say the pain and confusion the reviews have caused isn't what they had in mind when they asked the Social Security Administration in 1980 to improve the monitoring of the disability income program, and its welfare sister, Supplemental Security Income.” As the
Post
recounted, the reforms “aimed at weeding out the undeserving … have in many cases imposed an unnecessary burden on thousands of disabled people,” even those who met the government's strict standards.
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Many who lost their benefits were forced onto state welfare rolls, shifting the burden of relief to the states. And there was one other casualty of the purge: the bad publicity surrounding the purging of the rolls led to misgivings in the administration about Schweiker. His days on the Reagan team were numbered.

When Margaret Heckler took over leadership of HHS from Schweiker in early 1983, her first challenge was to “soften the image” of the department—acknowledging the ill effects of the disability reforms and admitting errors but also pressing ahead with the Reagan agenda. She confessed that some decisions had produced unnecessary pain and hardship. She promised to put a kinder face on what congressional Democrats and the press regarded as an inhumane public relations disaster. In a June 1983 Op-Ed, Heckler wrote that she “had no idea that the sudden, three-year review of millions of cases we then mandated might result in hardships and heartbreaks for some innocent and worthy disability recipients.” In her view, the Reagan reforms were done on a humane basis. They “introduced a face-to-face human contact at the very beginning of the review process and set the stage for a face-to-face hearing at the very first level of appeal—represent[ing] a giant step toward humanizing this program.” But the backlash had been harsh, she acknowledged, and “President Reagan felt we needed to do even better. That's why I have just announced additional major reforms of disability review.” Heckler declared that the “number of people exempted from the continuing
disability investigation process [would be expanded] by 200,000, bringing the total exempted to more than 1 million, or 37 percent of those now on the rolls.” Another 135,000 people with “functional psychotic disorders” would be temporarily exempt, and the program would move from “profiling” to random selection in its review process. The new secretary of HHS remained unapologetic about the overall goals, however, noting that fraud was still pervasive and citing a statistic from the Carter administration that claimed that as many as “one-in-five” of the nearly three million people on disability were ineligible. Fraud, she claimed, was costing “two billion taxpayer dollars a year.”
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Heckler's compassion campaign raised the question of whether Carter had been right all along about the heartlessness of Reagan's social welfare policies. By early 1984, the department had orchestrated a provisional resumption of benefits while waiting for the Congress to write new rules and guidelines that would reconcile court opinions and administration policy. In the meantime, the news media noted that the reforms and backtracking had thrown disability rulings into “a state of legal confusion and administrative chaos.” Heckler faced another challenge: how to manage the thousands of appeals and lawsuits from purged claimants that were now winding through federal courts, where many judges had grown hostile and suspicious toward the administration. By some accounts, disability lawsuits now clogged the courts, accounting for 15–20 percent of new filings in some districts.
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By 1984, with Reagan heading into a re-election fight, most commentators (even his supporters) admitted that purging the rolls had gone too far. Journalist Charles Lane admitted that “the huge SSDI program must be trimmed—but with a scalpel, not a meat ax. The Reagan administration tried the latter, and it didn't work.” Characterizing the administration as “malingerer-hunters,” critics on the left insisted that the review of more than one million beneficiaries was excessive. Running to unseat Reagan in 1984, Carter's former vice president Walter Mondale made this issue of fairness a central one—throwing Reagan into the defensive about his commitments to people with disabilities. With Congress still debating disability and the administration's “heartless” approach to people in pain, Heckler acknowledged that Social Security officials “made some mistakes, causing ‘hardships and heartbreaks' for disabled people.”
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In the first presidential debate in October 1984, Mondale took the fight directly to Reagan, forcing the president to defend his lack of sensitivity to people in pain. Recovery from the 1981 economic recession had been achingly slow. Reagan admitted that “there is no way that the recovery is even across the country, just as in the depths of the recession, there were some parts of the country that were worse off, but some that didn't even feel the pain of the recession.” But Mondale followed up, insisting that Reagan's policies had also caused much of the pain, particularly to the poor and vulnerable:

There is no question that the poor are worse off … How you can cut school lunches, how you can cut student assistance, how you can cut housing, how you can cut disability benefits, how you can do all of these things and then the people receiving them—for example, the disabled, who have no alternative—how they're going to do better, I don't know. Now, we need a tight budget, but there's no question that this administration has singled out things that affect the most vulnerable in American life, and they're hurting.

Mondale's accusation stung the president who, everyone observed, seemed lethargic in his first face-to-face encounter with Mondale.

Months before the elections, broad swaths of the public seemed to agree with Mondale that Reagan's cuts had hurt the most vulnerable and many who were truly in need. But one exchange between Mondale and debate panelist James Weighart also stung the liberal Democrat, providing insight into pain and privilege at this political juncture. “Mr. Mondale,” said Weighart, echoing a kind of detachment from Mondale's commitments, “is it possible that the vast majority of Americans who appear to be prosperous have lost interest in the kinds of programs you're discussing to help those less privileged than they are?”
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Mondale had no effective response. No matter how true his attack on Reagan had been, Mondale's criticism alone would not alter the direction of the election. The American electorate, whatever its misgivings about the “meat ax” approach to social programs, was pleased that the economy had rebounded from recession; the prosperous were content and not particularly disturbed by the plight of the “have-nots.” Moreover, many voters believed the president had rebuilt the nation's standing in the world by confronting the Soviet Union and decrying the ideological bankruptcy of Communism
at every turn. They believed, as Reagan optimistically promised, that it was “morning again in America” and considered the administration's harshness as necessary fiscal pain.
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In November, Reagan was reelected for four more years in another landslide.

By the time of the Reagan presidency, a robust body of legal literature had accumulated around the proof of pain—with the law as a site where weighing clinical, objective, subjective, psychological, and anatomical pain evidence was amassed and debated. As the public disability system expanded, the legal and social stakes in proving pain and suffering grew. In addition to the judges and lawyers, new professional groups had sprung up to engage with the challenge of assessing pain. Standing alongside the medical profession, one such group, for example, was the National Association of Disability Examiners. An offshoot of the National Rehabilitation Association, they developed a new professional focus—training men and women to arbitrate pain and disability disputes. An expansive system for assessing disability had blossomed—with cadres of government administrators, administrative law judges, disability experts, doctors, and bureaucrats in many sectors assessing pain at a scale never before seen.
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In the wake of the Reagan-era purging of the rolls, this legal machinery was thrown into overdrive—grappling with the consequences of conservative spending for the citizen's right to relief. For the administration, using “objective” medical evidence to recalibrate disability became a stalking horse for its political goals of fiscal sobriety and welfare reform. Standing in the middle of these struggles, administrative law judge Alan Goldhammer and Social Security Administration attorney Susan Bloom observed that, prior to Carter's August 1980 regulations, “the federal courts almost uniformly provided that a finding of ‘disability' could properly be based upon a showing of severe and incapacitating symptoms alone.” Under the Reagan proposal, however, the legal definition of disability “would rest
solely on medical grounds
and would not take into account vague … factors, which are so difficult to determine in a consistent manner.” Reagan's stance went well beyond proposals from conservative Democrats like Ways and Means Congressional committee chair J. J. Pickle (Texas), who had supported Carter in his efforts to crack down on fraud. Comparing the administration's proposals to Pickle's in May 1981, a member of Reagan's policy team, Eric Hempel, observed that Pickle's approach to Social Security reform was tough on the pain claim but not tough enough.