Using a Magnifying Glass to Find an Elephant

September 11, 2019

Insight from Nash Attorney Dan Rosen

Chicago, IL SSI Lawyer Dan RosenSocial Security disability insurance was designed to be a safety net that you and I and every other working American pays for with FICA contributions deducted from our paychecks. However, thousands of Americans who have been injured or are suffering an illness and are unable to work are falling through that net. Or, maybe a better description is they are being deflected away from the net. An estimated 675,000 people are currently backlogged waiting for a decision on their disability cases. Tragically, thousands of Americans die while waiting for their appeal to be heard by a Social Security Administrative (SSA) Law Judge. In fiscal year 2016, 8,699 Americans died on the Social Security disability waiting list. That number rose to 10,002 in 2017.

A major contributor to the backlog problem is that SSA’s Administrative Law Judges (ALJs) insist on holding hearings and/or 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. Here is a recent example which illustrates my point.

Our client was battling multiple myeloma that had spread to his spine, and he needed a bone marrow transplant. After we shepherded his disability case through the complex Social Security disability process, the SSA finally agreed to approve him, but only as of the time he actually had the transplant! This callous decision would have denied months of back pay for our client who desperately needed and deserved these benefits. We had to fight tooth and nail to get them to go back to the original date of diagnosis, when they had already found his cancer had spread and said the transplant would be necessary. Every time we attempted to communicate with SSA about this client’s situation, it took at least a week to receive a response. Eventually, SSA issued the decision, but only after requiring even more bureaucratic paperwork about our client’s work history. This is a perfect example of SSA putting a “magnifying glass” on even the most obvious of cases.

This case illustrates several things about how the Social Security Disability process works. First, it clearly debunks the myth among some that benefits are too easy to get. Next, it shows how the attorneys at Nash Disability Law fight for our clients’ rights even when there is no hearing. Finally, it reflects how slowly Social Security can move, even in dire situations.

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 four years 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. Fast forward to 2019 and we have seen little in the way of change. OTRs are rarely granted and even when they are, it’s a fight.

One solution to fixing the disability backlog is just a matter of applying some common sense and common decency. The Social Security Administration should be actively using on-the-record decisions that do not require in-person hearings. Even though the benefits are meager, granting Social Security disability in a timely way would keep more Americans alive. It is that simple and that obvious. No magnifying glass is required.