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The National Association of
Disability Representatives is a professional organization comprised of
non-attorneys and attorneys who assist people in applying for disability income
assistance from the Social Security Administration. Our members help
individuals and their families navigate an often complex and lengthy process to
demonstrate their eligibility for disability benefits. As advocates for
claimants, we want to commend Chairman Rangel and all of the Committee members
who have demonstrated a keen interest in pushing for improvements in the SSA
disability determination process, and especially in the unconscionable delays
that are part of the current system.
Because NADR members are on the
“front lines” helping persons with disabilities complete applications,
claimants, gather and submit evidence, and attend Administrative Law Judge
hearings with applicants, we see first-hand the serious toll that the long wait
for decisions can take on people, most of whom are already experiencing
significant life changes, traumas, and hardships. The average processing time
for cases at the hearing level is now 535 days. Beyond this unconscionable
hearing delay, claimants must again wait for a decision, and if successful,
must wait still longer for actual payment of their claims. Those facing grave
or terminal illnesses may not live to see the fiduciary promise they paid for
each week in their paycheck from their Social Security taxes. Families who
need care-givers or other assistance to provide necessary relief and support in
helping their loved ones may have to hang on for years, trying to balance
family needs without any help. This strains marriages, parent/child
relationships, and impoverishes people at a time when their need is greatest.
As an illustration of the hardship real people have suffered
as a result of the hearing backlog, following is the story of a claimant
represented by a NADR member:
·
David filed concurrent claims for Social Security Disability
Insurance Benefits and Supplemental Security Income disability benefits on
November 9, 2004, alleging onset of disability on June 15, 2004. Medical
records indicated David suffered from diabetes mellitus, hypertension,
hypotension, chronic anemia, arterial calcification of his left lower extremity
and chronic diarrhea. The initial claim was denied on February 25, 2005. Upon
reconsideration, the claim again was denied on June 24, 2005. An ALJ hearing
was requested July 22, 2005. On March 13, 2008, nearly 3 ½ years after David
filed his initial claim, a fully favorable decision was issued. Unfortunately,
at that point David had been dead for almost a year and a half.
Other NADR members have reported the following examples of
claimants who died while waiting for a hearing:
·
Chiquita filed her claim on January 25, 2006. She requested a
hearing on April 26, 2006. She died on March 22, 2007 while awaiting a
hearing.
·
Barry filed his claim on March 3, 2005. He requested a hearing
on June 6, 2006. He died on April 27, 2007 while awaiting a hearing.
·
Alex filed his claim on September 13, 2006. He requested a
hearing on December 29, 2007. He died on January 17, 2008 while awaiting a
hearing.
Amazingly, these stories are
happening to individuals who are “insured” for disability, having paid their
Social Security taxes, including those that fund SSA disability benefits. Most
assume that these benefits will only be needed at retirement. Yet, when
accidents or illness strike, people reasonably expect to receive the critical
support that disability payments can offer. And, they most certainly expect to
get it within a reasonable timeframe. Unfortunately, many Americans are not
finding the government reliable in this arena.
Scope of
Problem
The hearing level backlog has increased dramatically from the FY 1999
level of 311,968 cases, reaching 752,000 cases in FY 2008.
Cases Pending
2002: 468,262
requests for a hearing
2007: 717,000
(300,000 requests over a year old).
2008: 752,000
We applaud Congress’ effort last
year to address the backlog by appropriating, for the first time in 15 years,
not just the President’s budget request, but an additional $148 million for
SSA administrative expenses. While this is an important first step, sustained
increases in funding over several years are needed to get the backlog under
control. The President has requested an additional $600 million for SSA’s
administrative expenses for FY 2009, bringing total funding to $10.327
billion. NADR believes that, at a minimum, SSA should be funded at the level
of the President’s request plus $240 million for integrity work. We recommend
that Congress provide SSA with $11 billion in FY 2009 in order to truly have an
impact on the disability backlog, while continuing to carry on other related administrative
functions to serve beneficiaries and applicants.
That said, it will take more than
additional funding to address the issues SSA faces as a result of the dwindling
resources and increased workload it has sustained over the past decade.
NADR Supports
Earlier Decisions by Expanding QDD, by Developing the Technology Necessary to
Allow for Compassionate Allowances and by Prioritizing Backlog Cases for Quick
Decisions
NADR believes SSA can expedite
movement through the backlog by targeting certain claims that can be resolved
quickly – i.e. that have a high likelihood for “on the record” decisions.
These same criteria can also be applied to SSA’s Quick Disability
Determinations (QDD) and the Commissioner’s proposed new screening mechanism
for Compassionate Allowances so that cases with a likely outcome of disability
are processed fastest. Prioritizing of select cases can be started nationally,
or in two or three demonstration projects that target areas with both “medium”
and “high” backlogs.
What are the cases that can be
culled from initial applications and backlogs for speedy review?
1. Claimants 55 and Older &
Cases Involving Claimants with Limited Education
(Age/Grid Issues)
Currently SSA evaluates claims using
criteria that include age and education. In a nutshell, the older a claimant
(particularly those who attain age 55 and over) and the more limited the
education that a claimant has, the greater the latitude allowed to obtain a
favorable determination. When an individual achieves age 55, the grids will
find a person disabled when they have a limited education, have only performed
unskilled work in the past 15 years, and are limited in their ability to sit
for six hours in an eight hour day and lift more than 10 pounds occasionally.
There are certainly additional nuanced issues which must be considered in many
cases but we believe that a cursory review, based upon a computer run of
persons who are over age 55 or have attained age 55 during the application
process, have a limited education, and are physically limited in their capacity
to lift, sit and/or stand, may provide an expedited conclusion of disability
with reduced processing time. If a person has turned age 55 while awaiting a
hearing, this may further increase the potential of a favorable finding based
upon the grids.
2. Cases Denied Because the
Claimant Did Not Meet the Requirement of Being Impaired for 12 Consecutive
Months (Durational Denial)
The
definition of disability requires that a person cannot be found disabled unless
their disabling condition has lasted or can be expected to last for 12
consecutive months, or that the condition is expected to result in their death
(durational requirement). Oftentimes individuals with various impairments have
applied for benefits within a month or two after they have discontinued work.
Many are quickly found to be “not disabled,” as there is a projection or
expectation that the impairment, while severe, will be resolved within the 12
month window. These cases, when appealed, are then placed into the queue with
all other persons who have requested such. Since it typically takes nearly a
year to have a case heard by an Administrative Law Judge, persons with
durational denials may be easily screened after the 12th month, given
a quick review, and with minor updates of medical information, found either
eligible or continue to wait for the hearing
3. Back Cases with Multiple Spinal Surgical Interventions
Severe
back pain significantly limits an individual’s capacity to sustain substantial
gainful activity. Persons who have had more than three back surgeries or have
been diagnosed with “failed back syndrome” are oftentimes deemed eligible for
disability due to this impairment. Yet, at the DDS levels, reviewers often do
not adequately consider how pain, fatigue, and the side effects of pain
medication impact an individual’s capacity to sustain work. In our
experience, persons with a diagnosis of “failed back syndrome” – those who have
had several surgical interventions that have left the individual with
significant pain, requiring regular utilization of pain medication or the need
for additional surgery – will ultimately be found disabled. These cases make
sense to prioritize.
4.
Claimants with a Significant History of Mental Health Impairments
Individuals
with severe mental health difficulties will oftentimes but periodically have
problems caring for themselves effectively. They may meet Social Security’s
“C” criteria at times but due to the cyclical nature of their disease, not at
others. Individuals with mental health impairments that wax and wane,
that are usually widely recognized as disabled, such as those with repeated
hospitalizations or those who have been institutionalized, can be quickly and
efficiently identified as persons who have disabling mental health conditions.
For example, a longitudinal history of the following would provide trusted
markers that demonstrate serious mental health impairments:
·
Consistently low “Global Assessment of
Functioning (GAF)” scores (rating criteria determined by a mental health
professional in accordance with the DSM-IV);
·
Necessity to live in structured living
environments;
·
Special education placements throughout
their school career.
SSA should
pull and review from the backlog all cases that match these criteria.
5.
Improve Communication Between Representative and Administrative Law Judge
There are
periods of time subsequent to a file being reviewed or “pulled” that a claim
sits, simply waiting for administrative action. During this time the issues
that need clarification have been identified but not revealed to the
representative. There is little to no communication from the Administrative
Law Judge to the representative thus, when entering a hearing, the representative
rarely knows the specific reasons that the ALJ believes the hearing was
necessary. It would be valuable and highly cost effective if a statement of
issues could be presented at the time the file is pulled or the hearing is
scheduled so the representative can investigate and provide documentation that
addresses the judge’s concerns. This may reduce or even eliminate the need for
some hearings. As an example, oftentimes it only becomes evident when before
the ALJ, that the only reason a hearing is being held is because earnings have
been identified that are over substantial gainful activity and after the person
says they are disabled. This can be anything from incorrect earnings - to
insurance payments - to supported work. A brief discourse before the hearing
asking for clarification of this issue may preclude the need for a hearing by
the representative obtaining the necessary documentation.
Conclusion
We appreciate the opportunity to
present our views on ways to reduce the social security backlog. Our goal is
to help our clients get the assistance they need in the most efficient way
possible. We have a long way to go in transforming SSA’s disability program
into a more timely and responsive safety net, but your leadership and attention
gives many of us reason to hope for improvements. We look forward to
continuing to work with Congress and with SSA Commissioner Michael Astrue to
assure that SSA is able to provide people with disabilities the benefits to
which they are entitled in a timely fashion.
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