Americans Struggle as Disability Backlog Gets Worse

Insight from Tom Nash

If you are waiting for a ruling on a Social Security disability claim, you’ll have to get in line—a very, very long line.  The current estimate of the backlog of Social Security disability claims at the hearing level appears to be the highest ever, with nearly 1.1 million cases and an average wait time of 530 days. This is 530 days on top of the months to years that a claimant has already waited for their claim to be decided twice by the State Agency’s Disability Determination Service (Initial and Reconsideration Levels).  Frustratingly, the backlog is getting worse, not better, despite the promises of the Social Security Administration (SSA). To get an idea of how this problem has grown, in 2010 the backlog was a little more than 700,000 cases, and now it has grown so large that it exceeds the population of six states.

 

A major contributor to the backlog problem is that SSA’s Administrative Law Judges insist on holding hearings and making applicants jump through hoops to prove their disabilities, even in those cases where it is plainly obvious that the applicants’ disabilities prevent them from being able to work and support their families. It is like using a magnifying glass to find an elephant. Let me share a couple of examples which illustrate my point.

A judge denied disability benefits to one of our clients who suffers from cerebral palsy. He filed a new claim and was again denied, despite a detailed explanation from his doctor that spelled it out for the government, which should have made it easy to approve his case.  Now, notwithstanding his earlier appeal, he is going to have to wait at least another 18 months for a decision.  This is someone who, despite severe neurological and psychiatric disabilities, volunteers for his church–an “activity” that Social Security judges tend to use against someone applying for benefits, instead of having it reflect on their good character and credibility. We are currently in federal court appealing the denial.

In another case, a lady with schizoid personality disorder who witnessed violent trauma in the past was denied by an ALJ.  We appealed to federal court, and the court agreed the judge was mistaken and sent the case back for a new hearing.  This lady had to wait months and months for another hearing, only for the judge to immediately approve her claim when he took the time to review it carefully.  This is something he could have done much earlier if the government took away the magnifying glass and managed cases in the right way.

One tool that ALJs can apply to Social Security disability cases to speed up the process is an “on the record’ (OTR) decision. Prior to a hearing, an ALJ can make a favorable ruling based on the written information they have been provided before the hearing. For a successful OTR decision, an individual must have a medical record which provides strong support for their disability claim. Yet, as we wrote about more than a year ago, the number of OTRs has dramatically declined over the past few years from more than 37,000 in FY2012 to less than 2,000 in FY2014.  For practical purposes, they are rarely issued.

This summer, Social Security released its plan for dealing with the massive hearing backlog.  This SSA plan, called CARES (which stands for Compassionate and Responsive Service), has lofty goals for reducing the backlog.  Mostly, however, it calls for a larger budget to hire more workers.  In the hearing offices in Chicago, Oakbrook, Evanston, Orland Park, and Valparaiso, Indiana, I regret to tell you that this program has had absolutely no effect whatsoever on the problem.  Furthermore, no Social Security disability attorney in the country has seen any meaningful plan to reduce the backlog.  A year ago the Regional Chief ALJ met with Chicago Bar Association lawyers and suggested that there was finally an initiative to pay the more obvious claims, but in our experience we have not seen any follow through on this at the hearing level.

At Nash Disability Law, our question is: “Do the people in power really have an interest in solving the problem?” Unfortunately, in our view, there is just too much of a bureaucratic and reactionary mindset. Despite some compassionate SSA staffers (see my blog article: “A Winning Formula: Sharp SSA Personnel, Advocacy and Relationships”), we don’t sense that, overall, SSA has a genuine interest in looking beyond the magnifying glass.

Every day we see the devastating toll that long delays in benefits can have on the disabled. People wait so long that many lose their homes and even their spouses. The mentally ill can become further destabilized. Furthermore, the stress of battling for benefits itself can cause additional medical problems.

We will continue to advocate for the disabled because we believe that there are many cases that the ALJs can approve without putting applicants under a magnifying glass.  But we also need help from social workers and others to bring the backlog and magnifying glass issues to light.