Every once in a while I get to write about something I actually know about, and today is one of those rare days. This morning’s Times reports on the growing backlog of Social Security Disability cases. (The article was reprinted in the Day). In terms of the time I spend on my legal cases, 50% or more of my caseload consists of Social Security Disability cases, so I can claim to know a little about the process.
The article is a good summary of the present problem with the Disability system. A growing backlog at the administrative law judge level is causing the time between initial application and final approval to balloon. A disability case can go all the way to the Supreme Court, but before it enters the formal judicial system it goes through four stages, the initial application, the redetermination stage (replaced in our district on an experimental basis by the federal reviewing officer, the hearing before an administrative law judge (ALJ), and appeals to the Appeals Council, which is an internal appeal board. The article focuses on the delays at the ALJ level, which is where most of the action is from the attorney’s standpoint.
I happened to have an ALJ hearing this morning and, after the hearing concluded, mentioned the article to the judge. He made an observation with which I agree. The judge pointed out that the real problem lies elsewhere. It’s implied in this quote from the article in the Times:
But of the more than 575,000 who go on to file appeals — putting them in the vast line for a hearing before a special federal judge — two-thirds eventually win a reversal.
If two thirds of all cases that are appealed to an ALJ are reversed, then the real problem lies at the initial application stage. Too many people are being denied benefits in cases in which they are obviously entitled. The Times story has illustrative examples The line at the hearing level wouldn’t be vast if more of those two-thirds got their benefits at the time of the initial application. There are a lot of reasons this doesn’t happen. Claimants don’t have attorneys at the initial stage, and the record is often not complete enough to warrant an approval. But I’ve seen many cases in which I have simply been unable to understand how anyone could make a finding that the claimant is able to work. The article is right that the legal standard for proving disability can be hard to satisfy, but for some workers, including older workers, people with little or no education or people with intellectual deficits, the standards are relaxed quite a bit compared to those used in assessing claims by young or highly educated workers. There is an evaluation process that should lead to a favorable decision in many of these cases, but often (usually?) does not. I’ve often wondered who gets granted at the initial levels, since so many obvious winners find their way to me. Part of the problem is that the work is handed off to state agencies that appear to view their role to be much like that of a health insurance claims examiner: to turn down as many claims as they can. Overall, maybe it works. Maybe enough people with meritorious claims get discouraged and give up, thereby saving the system money. The delays also benefit the government in another way. Claimants get retroactive checks if they are ultimately successful, but the government doesn’t pay a dime of interest on claims that sometimes take five years to process. In effect, everyone in that long waiting line is lending the government money at 0% interest.
So solutions that seek to fix the problem at the administrative law judge level are going to fail unless the objective is merely to get rid of the backlog. You can do that by simply putting procedures in place that will allow for quick, unfavorable decisions at the hearing level i.e., simply push the problem upstream. The Commissioner of Social Security, good Bushie that he is, has recently suggested doing just that, proposing some regulatory changes that will speed up the system, with the explicit expectation that the reversal rate will decline. Some of the proposed changes seem innocuous, but could prove devastating for claimants. For instance, he wants to require claimants to specify each medical condition for which they are claiming disability. That may seem innocuous, but I’ve had more than one case in which my client did not understand that the condition her or she felt was disabling was minor in comparison to another. This is particularly true in the case of people who are mentally ill, who often believe they are disabled due to physical problems that are minor in comparison to their mental impairments.
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