Pain (20 page)

FIGURE 3.2.
Four secretaries of the U.S. Department of Health, Education, and Welfare (and later the Department of Health and Human Services) who managed the federal government's policies on pain and disability;
left to right
, Anthony Celebrezze (Kennedy administration), Joseph Califano (Carter), and Richard Schweiker and Margaret Heckler (Reagan). Califano image courtesy of Food and Drug Administration; all others courtesy of the Social Security Administration.

Section 205 [
sic
, 206] of the Pickel [
sic
] bill would make it more difficult to qualify for disability insurance simply by claiming pain or other discomforts … [providing that] claimant testimony as to pain and other symptoms shall not alone permit a finding of disability.… unless medical signs and findings established by medically acceptable … techniques show that there is a medical condition that could reasonably be expected to produce such pain or other symptoms.

To the White House, this “reasonable expectation” was an unwarranted loophole too easily exploited by too-liberal judges of disability. As Hempel noted, “The Administration proposal would tighten disability criteria considerably further by limiting qualification to medical factors alone.” Objectivity was thus linked to fiscal restraint. Later, in signing one resulting piece of reform legislation, Reagan insisted that “several billion dollars a year were being spent to support people who were not, in fact, disabled.”
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In the politics of how pain should be judged and by whom, the resulting lawsuits set up a complicated struggle for power among the executive, legislative, and judicial branches of government. In the 1976
Miranda
case, the First Circuit Court of Federal Appeals determined that “the Secretary is not at the mercy of every claimant's subjective assertions of pain” when determining eligibility for disability. In the early 1980s, the Reagan administration took the combative position that, just as it could disregard applicants' claims, it could disregard courts with whose findings it disagreed. With the administration's new policy of non-acquiescence, a complicated new political era was unfolding, with the executive branch simultaneously seizing power and devolving responsibility for disability to the “laboratory of the states” (a phrase first used by Justice Louis Brandeis earlier in the century).
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In this litigious era, plaintiffs turned to the courts for relief, and conservatives (seeking to limit their access to the courts) decried the rising tide of “frivolous lawsuits,” as they often had in the past, and called for tort reform.

By 1984, the courts' repeated rulings to restore benefits presented the Reagan administration with a political dilemma—a legal roadblock on its path to establishing a conservative pain standard. Would the administration comply and uphold the liberal rulings on subjective pain made by judges clinging to the
Page
standard on subjective symptoms? Or would they find a way to uphold its principles? Reagan's ardent followers had come to vilify liberal lawyers, advocates, and judges almost as much as welfare “cheats,” seeing them as enablers of dependence. In the wake of the 1980 election, one senior justice on the California Supreme Court who knew Reagan's politics well from his years as governor, rightly predicted the political-legal disputes to come: “They will say that the courts ‘legislate' rather than ‘interpret' the Constitution, and that the courts are ‘soft on crime.' These are no more than code words to the effect that the courts have been too vigilant in … protecting the disadvantaged and the minorities from direct and indirect exploitation.” Indeed, it was Edwin Meese (who had served Governor Reagan as legal affairs secretary and chief of staff and who was now Reagan's chief policy maker) who most insistently and sharply “attacked liberal judges, psychiatrists, and lawyers [for] trying to outwit the criminal justice system.” Aside from attacking the so-called liberal activism of judges, Reagan supporters also took aim at the obvious lack of uniformity across these courts—particularly on questions of disability.
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The administration's hubris in defying the courts on disability rankled judges and enraged members of Congress. The practice also called Congress back into the fray, with Democrats like Pickle in the House now pushing for new legislation to hold the administration to congressional standards of pain and disability evaluation. At the same time, some state governors balked at the administration's noncompliance with court rulings, siding with the courts—particularly because the cost of coverage now fell back onto the states. Arkansas governor Bill Clinton, for example, directed his state officials to ignore the administration and “to comply with Federal court decisions holding that severe pain by itself could be a disabling condition.” Yet Clinton (later ridiculed by conservatives for professing to “feel the pain” of voters) also acknowledged that state officials had “virtually no real power” to affect individual cases.
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When Arkansas officials tried to keep people on the rolls, they were simply overruled by Social Security officials.

The politicization of pain reached a frenzy in 1984 as the Democratically-controlled House, the Republican-controlled Senate, various states, and the Reagan White House battled one another and as the administration also took fire from plaintiffs, the courts, and state officials. At stake was not only the government's relationship to people with disability claims but the power to judge and govern, that is, which branch of government had the authority to decide these vexing issues of pain and relief. Physicians could only observe as Congress reasserted its authority, debating who was in true pain. Pennsylvania's moderate Republican senator John Heinz insisted that “pain is an extraordinarily complicated medical phenomenon, and it is frequently the case that pain that can be objectively identified cannot be linked to an underlying impairment.” Where some lawmakers puzzled over the definition of pain, others, like Louisiana Democratic senator Russell Long (son of the famed populist governor and senator Huey Long), fumed against the courts and the executive branch as well, asserting congressional primacy: “if the regional courts are going to persist in ignoring the policy objectives expressed by Congress and persist in refusing to grant appropriate deference to the duly promulgated regulations of the Secretary, the Congress may be forced to find ways of dealing with this situation.” The majority leader of the Senate, Kansas Republican Bob Dole, himself a World War II veteran who lost the use of his right arm in battle, supported the administration's hard-line stance. Accordingly, the final Senate bill continued to place the onus on purged claimants to prove that their condition had not improved. The Senate bill also included language suggesting that some cases could not have regress to the courts, a move that reflected Republican suspicion of the courts and plaintiffs. By contrast, the House called for HHS to give beneficiaries the benefit of the doubt—to presume that an already-disabled person's disability continued unless medical evidence showed otherwise. Just months before the presidential elections, the House, Senate, and White House had reached an impasse.
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Pressure on Congress also came from the gathering momentum of Lorraine Polaski's case, which had grown into a major class-action suit. Polaski had received disability benefits since 1979, but her eligibility was terminated in 1983. The Minnesota housewife appealed, contending that the secretary's decision “was not supported by substantial evidence because it improperly discounted her allegations of pain.” Moreover, her
suit argued that HHS had produced “no evidence to show either that her condition had improved or that the original decision finding her disabled was erroneous.” Polaski argued that the secretary had used erroneous standards on pain and medical improvement, “directly and flagrantly” contrary to the law as set out by the Court of Appeals for the Eighth Circuit. Within months, others had joined her suit against the Reagan administration's purge.
Polaski v. Heckler
was affirmed as a class-action suit in Minnesota District Court in April 1984, with one federal judge accusing the department of existing in “a state of lawlessness.” As the case headed for the Eighth Circuit Court of Appeals, where it was heard in June, Heckler agreed to temporarily halt reviews. A decision on
Polaski
was expected in December, and so the lawsuit cast a long shadow over election year maneuvering in Congress. As it moved toward higher courts, the case placed increasing pressure on the Congress and the administration to settle their pain dispute through legislation.
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On September 20, 1984, Representative Pickle announced a compromise bill “that will bring relief and hope to thousands and thousands of people all across this land who have been inhumanely removed from the rolls.” Both parties could claim victory in the remaining month before the election. Insisting that HHS had taken too much latitude in its purge, Congress now asserted its power to guide the courts and the administration. As Eileen Sweeney of the National Senior Citizens Law Center saw it, the compromise agreement “substantially limit[ed] the discretion previously enjoyed by the Secretary of HHS in addressing disability issues.” The final disability legislation was a victory for liberals in many regards, except on the question of pain. On the pain question, the compromise legislation punted the contentious epistemological question on subjective pain to an outside commission—mandating that HHS convene an expert group to deliberate, evaluate policies, and recommend changes on the relationship of pain and disability. An expert panel—led by none other than Washington's John Bonica—began its work on April 1, 1985, with a mandate to report its findings to Congress by December 31, 1986.
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The pain question at the heart of welfare and disability politics remained unresolved and polarized, but the search for middle ground had begun. At its core, the stakes in this pain debate revolved around wrenching issues of compassion, dignity, and justice before the American electorate. “There is no kindness in finding an individual ‘disabled' who really
is capable of performing work activity and who would prefer the dignity of being independent of benefit payments,” two Social Security administrators concluded in 1984, “if the individual can be led to understand that he can be independent of those.” They sympathized to some extent with the administration's tough position, noting that “there is much to say for an approach which largely ignores subjective expressions of pain and dysfunction and relies primarily upon that medical evidence which can be independently verified and assessed as producing a medically legitimate state of incapacity.” Ultimately, however, the conservative pain standard would be modified by some combination of congressional action and court ruling. One by-product of the 1984 debate was the rising awareness—among expert disability adjudicators—that subjective pain could neither be dismissed outright nor held up as an intrinsic disability without careful scrutiny.
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Reagan's executive declarations would have to yield to legislative and judicial judgment.

Legal commentators found several ironies in the 1984 pain and disability compromises, which carefully dissected and redefined how the law should regard people in pain. Congress had won a concession, mandating that subjective pain should not be dismissed outright in disability cases. But, as legal scholar Margaret Rodgers noted, Section 3 of the legislation largely affirmed the administration's position even as it created the first-ever statutory standard for the evaluation of pain, “designed to end the confusion over pain testimony in disability benefits cases by codifying the Administration's existing policy on pain.” The law stated that “an individual's statements as to pain or other symptoms shall not alone be conclusive evidence of disability … there must be medical signs and findings … which show the existence of medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain.” But signing the bill also represented a concession for the president. Yes, the administration still held the upper hand on precisely how to implement the subjective pain standard at HHS. And the administration had also forced another major concession on plaintiffs' rights—the act limited new class-action litigation over how HHS used, or misused, the medical improvement standard to review cases. However, henceforth, it would be harder for the conservative administration to end benefits in its formerly unilateral, draconian style.
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