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Social Security Disability Appeals Are Piling Up

December 8, 2017

The Associated Press, the Denver Post, and other media sources continue to report that thousands of Americans die while waiting for hearings on their Social Security disability claims. Winning Social Security Disability Insurance (SSDI) benefits has always been a long and difficult process. For disabled Americans, wait times for appeal hearings have been frustratingly long for many years, but they have only gotten worse, reaching record highs. “The average wait time is 596 days or 19½ months, up from 545 days [a year ago] and only 353 days in 2012,” an investigation by the San Francisco Chronicle found. “The backlog of cases pending a hearing stands at about 1.1 million, up from 700,000 in 2010.”

Part of the blame for this deteriorating situation lies with Congress, which has been pulling the purse strings tighter on the Social Security Administration. Michael Hitzlik, a journalist for the Los Angeles Times, recently reported that, “in the latest versions of the agency’s budget under consideration in Washington, the House is planning to keep the budget at the same inadequate funding level as the current year. The ever more ambitious Senate is trying to cut it by $400 million, or nearly 4%.” Two U.S. Senators—Ron Wyden (D-OR) and Sherrod Brown (D-OH) –raised an alarm about the proposed cuts and are urging their colleagues to provide no less than President Donald Trump’s request of $12.5 billion for the Social Security Administration’s administrative budget for fiscal 2018. “At a time when the agency is facing an unprecedented number of our constituents waiting for a hearing and recent press articles have headlines stating that ‘thousands die on waitlists,’ SSA cannot make significant progress at reducing the disability hearings backlog without adequate resources,” the senators wrote in a letter to their colleagues.

But a stingy budget is only one aspect of the problem. There are other contributing factors. For example, in an attempt to reduce the backlog, SSA unveiled a plan two years ago to whittle down the waiting time to 270 days by the end of 2020. The plan called for expanded use of video hearings and a goal of hiring an additional 250 administrative law judges per year in 2016, 2017 and 2018. The SSA has fallen woefully short in its plan. Although “[SSA] hired 264 judges in 2016, [it] added only 30 in fiscal 2017…because of hiring freezes in the agency and throughout the federal government,” the Chronicle reports.

Another reason for the rise in the backlog of cases (which now exceeds the population of six states) is the unwillingness of some Administrative Law Judges (ALJs) who preside over hearings to favorably decide even the clearest disability cases without a hearing. They 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.

Here at Nash, we strongly advocate that ALJs apply a tool that was routinely applied in the past: – 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, the number of OTRs has dramatically declined over the past few years from more than 37,000 in 2012 to just over 1,000 in 2016 (For more about OTRs read our blog article: SSA Magnifying Glass for Even the Most Obvious Cases, No “OTRs”.)

This summer, Social Security released its updated 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, though, it calls for a larger budget to hire more workers. Social Security has hearing offices in Chicago, Oak Brook, Evanston, Orland Park, and Valparaiso, Indiana, and the Nash Law attorneys can tell you that this program has had little to no effect whatsoever on the problem.

Equally troubling is that “the percentage of people who apply for a hearing and win has fallen to 46 percent from 64 percent six years ago, according to the Chronicle. “One reason: Since March, judges can now give equal weight to the applicant’s doctor and to a second opinion from a doctor appointed by Social Security. Previously, they gave more weight to the applicant’s doctor.” Lisa Ekman, a policy specialist with the National Organization of Social Security Claimants’ Representatives, told National Public Radio that this is a mistake. “[These] changes…now put the evidence from a treating physician on the same weight as evidence from a medical consultant employed to do a one-time brief examination, or a medical consultant [the SSA] had do a review of the paper file — [who] may have never examined the individual.” The new rules also give even less weight to disability determinations by other agencies such as the Department of Veterans Affairs. For example, a Veteran who receives 100% service-connected disability benefits from the VA may not be deemed “disabled” by the Social Security Administration.

Whatever the reasons, the wait times for our most vulnerable population, the disabled, is unconscionable. Hard-working and financially poor Americans whoare struck down by illness or injury deserve a speedy decision about the benefits they have either rightfully earned or qualify for based on an inability to work and financial need.