With more than one million Americans waiting for hearings to decide whether or not they are eligible for Social Security disability benefits, it is not uncommon for a disabled person to wait for nearly a year and a half for a hearing in front of an Administrative Law Judge. Mark Hinkle, a Social Security Administration (SSA) spokesman, says that “some people (have) a wait of over 17 months to receive a hearing…, which we concede is unacceptable service.” So pretty much everyone—including the SSA, advocates for the disabled, and we at Nash Disability Law—agrees that something needs to be done to break up the logjam of disability cases, so that those who are in desperate need of help can get it sooner. In an effort to reduce this backlog, the SSA is quietly changing how some appeals are handled.
The standard procedure for qualifying for Social Security disability benefits starts with filing an application—online, by mail, by phone or in person—with a Social Security field office. But nearly two-thirds of initial benefits claims are denied by the SSA. Applicants who are turned down for benefits have the right to appeal. The second appeal is heard by an Administrative Law Judges (ALJ), who each has a measure of independence from the SSA. If a claimant is not satisfied with the ruling by the ALJ, they can take their case to the Agency’s Appeals Council and, as a last resort, to federal court. SSA has made changes that affect these last stages of appeals.
Every year, tens of thousands of cases are “remanded”, that is, sent back down to the Appeals Council or to an ALJ for reconsideration. Now, the SSA says, these remands will be heard in front of Administrative Appeals Judges (AAJs) and Attorney Examiners. This is not just a matter of word play or titles on business cards. AAJs and Attorney Examiners are SSA staff members, so they are not unbiased and independent decision-makers, say advocates for the disabled. Although Administrative Law Judges work for various government agencies, a federal law called the Administrative Procedure Act provides some protection against agency pressures.
Watchdog.org reports that “U.S. Senator James Lankford, (R-OK), Chairman of the Senate Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, [said during recent Senate hearings] that over the past four years Congress has appropriated ‘significant resources’ so SSA could hire more Administrative Law Judges to address its massive backlog of disability claims. Yet, the agency has been unable to hire sufficient numbers of judges to tackle the cases. ”But instead of hiring more ALJs, in a misguided effort to expedite the adjudications process, SSA is in the process of moving tens of thousands of pending cases from ALJs to non-APA (Administrative Procedure Act) Attorney Examiners, who are regular employees of the agency and lack the requisite decisional independence,” Lankford said.” In a press release Lankford went on to say, “this change would impact tens of thousands of Social Security Disability cases, potentially depriving individuals of their right to a decision by an independent judge, free from undue agency influence.”
The National Organization of Social Security Claimants’ Representatives (NOSSCR), a group that advocates for those who represent people seeking disability benefits, is wary of the change, the Huffington Post reports. (Editor’s note: Thomas R. Nash is a member of NOSSCR.)
“We’re supportive of the agency taking steps with the resources they have to address the number of people waiting,” Lisa Ekman, Director of Government Affairs at NOSSCR, said in an interview. “But we’re also very concerned about claimants getting a hearing in front of an Administrative Law Judge that has qualified judicial independence as required by the Administrative Procedure Act.” Ekman went on to say that the massive number of disabled Americans who are in need of financial help and are waiting for the SSA to decide their cases should not have to wait so long. “The backlog and the wait are tremendously detrimental to claimants,” Ekman said. “Claimants die while they’re waiting to get a hearing. Claimants lose their homes while they’re waiting to get a hearing.”
Taking an even stronger stand against this new policy is the Association of Administrative Law Judges. They say what SSA is doing isn’t even legal. “[The SSA] has launched an initiative that is not in the best interest of the American public,” Marilyn Zahm, the association’s president, said in an interview. “What the Social Security Administration plans to do now is to divert subsets of cases from hearings before ALJs to hearings before their own handpicked people. Not only is this plan ill-advised, it will not make a dent in the backlog of pending cases,” she said. “More likely, a court challenge will necessitate a re-hearing of all of these cases by an ALJ. We are adamantly opposed to this plan.”
U.S. Representative Lankford and U.S. Representative Heidi Heitkamp (D-ND) have asked the SSA to delay the use of Attorney Examiners and AAJs. “Lankford said if a sizable number of claimants are denied a hearing before the ALJs, there is the potential that SSA’s proposal to move cases away from Administrative Law Judges could result in a class-action lawsuit,” Watchdog.org reports. “While we all share the goal of eliminating the hearing backlog, our concern isn’t just about meeting desired results; we must also focus on how we get there,” he said.