The Social Security Backlog

Recently, there has been a proliferation of articles concerning the growing backlog of Social Security Disability cases, and the regulations SSA Commissioner Michael J. Astrue proposes to address what is becoming an enormous hardship on disabled applicants. It is not unusual for applicants to wait more than three years to get a hearing.

Most often, these claimants have no savings, no income, and no insurance, even for necessary treatment or medications. Unfortunately, before their benefits are awarded, they lose their possessions, go bankrupt, their utilities are shut off, and ultimately are forced to move from their homes with no place else to go. In the worst cases, the claimant’s die.

Since the inception of the disability program in the 1950s, the standard for approval has been intentionally strict. It is designed more to weed out malingerers than it is to help the disabled. A claimant must prove either an illness expected to result in death or inability to do not only past work, but any work that exists “in significant numbers in the national economy.”

According to SSA, in January 2005 nearly 8 million disabled workers and their dependents received DI benefits, a 100% increase since 1985. Another 6 million adults and children receive SSI payments, a 135% increase in the same period.

Nationally, about 750,000 appeals are pending. That is double the number in 2000. The wait time varies by location, but the national average is 524 days. Many offices take much longer. In Omaha, for example, the average processing time is 639 days from date of appeal to the hearing level. Of the 143 hearing offices in the country, 22 have longer processing times.

In 2006, SSA implemented a new Administrative Review Process known as the Disability Service Improvement (DSI) process to address the backlog. Presently, Boston is the only region using the system. The new regulations provided that SSA would wait at least one year (from August 1, 2006) before implementing a second region.

The new rules include an initial application and review by a Federal reviewing official. The right to appeal to an ALJ remains intact. However, the judge’s decision is final unless the claim is referred to the Decision Review Board (DRB). A DRB review remains the final decision at the Administrative level. The Appeals Council will eventually be phased out.

Other changes include a new electronic filing system, presently in use in all 1,338 field offices, taking 20,000 claims per day. SSA is also implementing systems to streamline the updating of medical listings and to close the records in hearings faster by requiring all medical evidence to be submitted at least 5 days prior to hearing. The claimant is to be notified at least 75 days before the hearing, rather than the previous 20.

According to a recent article in The New York Times, about two-thirds of the 2.5 million disability applicants each year are denied at the initial state determination levels. Of the approximately 575,000, who file appeals requesting to be heard before an administrative law judge, about two-thirds win a reversal.

Reasons officials attribute to the high reversal rate include the supposition that many of the claimant’s impairments increase in severity by the time of hearing. The judge gets to meet the claimant face-to-face. The belief is that those who appeal are those with the strongest cases or who tend to get lawyers to help with presentation.


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The Possible Effect of Drug or Alcohol Abuse on a Disability Claim

Whenever a claim for Social Security Benefits under Title II or Title XVI is being evaluated, the Administrative Law Judge must be aware of possible “DAA” materiality on the claim. DAA stands for drug and alcohol abuse. Prior to 1996, a claimant could receive benefits based upon “DAA” (Drug Addiction or Alcoholism) with the conditions that benefits would be paid to a “representative payee” who would manage the funds, that the claimant enter a mandatory treatment program, and that their benefits would be limited to threes.


In 1996, however, Congress enacted the “Contract with America Advancement Act of 1996”, Public Law 104-121. Section 105 provides that "an individual shall not be considered to be disabled ... if alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's determination that the individual is disabled."


The Social Security Administration has acknowledged that there are no exact criteria for when drug addiction and alcoholism are present. However, some courts have concluded that an actual diagnosis of a substance abuse disorder is not required, only that there is some evidence to support a finding of DAA.


The key factor Judges look to in determining whether drug addiction or alcoholism is a contributing factor material to the disability is whether the claimant would still be disabled if he or she stopped using drugs or alcohol. In making that determination, the Judge evaluates whether the claimant’s current physical or mental impairments would remain if the claimant stopped using drugs or alcohol and whether any of the remaining conditions would be disabling. If the impairments would still remain and would be disabling, then the DAA is not a contributing factor.


In order to be a contributing factor to the disability, however, the claimant must be currently abusing drugs or alcohol. The law does not apply to claimants who have stopped using drugs or alcohol. The Social Security Administration considers a one-month period of abstinence to be a sufficient period of time to observe whether the absence of drugs or alcohol has affected the claimant’s condition.


Credibility is always of major importance in disability cases, but it is especially important when a claimant states that the disability is independent of the drug or alcohol abuse. Judges often give great weight to the opinions of the claimant’s treating physicians in their determinations. Thus it is very important for claimants to be truthful about their drug or alcohol abuse. If a doctor feels that their patient is not being truthful, that opinion may appear in their treatment notes. And Judges will review those notes before the hearing. If a Judge suspects that the claimant has not been truthful in the past, the chances of being awarded disability benefits will be severely damaged.

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What are Representative Payees?

A relatively common scenario encountered by claimants is the situation where the claim has been awarded, but the claimant has been informed that he will not receive the funds directly. Instead, the funds will be distributed to a third-party “representative payee.” A representative payee is a person, agency, organization or institution that the Social Security Administration selects to manage a claimant’s funds when the claimant is determined to be incapable of doing so.


The first question the claimant will ask is, “why am I not receiving my funds directly?” The short answer is that they fall within one of the three categories of claimants the Social Security Administration has determined must have a representative payee. The first two categories are pretty straightforward and include most children under the age of 18 and legally incompetent adults.


The third and most common category though is anyone that Social Security determines to be incapable of managing or directing the management of his or her funds. Since a finding of disability is obviously a prerequisite to obtaining benefits under Social Security’s Disability and Supplemental Security Income programs, it stands to reason that a representative payee could be found necessary in all cases. Fortunately, the rules are not quite so liberal and the necessary finding that must be made before a payee is established is not an arbitrary process. There are strict standards in place requiring the Social Security Administration to evaluate medical or other types of evidence concerning the claimant’s ability to manage his benefits.


The next question becomes, “who may serve as a representative payee.” The answer is almost anyone. For example, a representative payee may be someone concerned about the claimant’s welfare (e.g. parent, spouse, guardian, friend), and an institution/entity, such as a nursing hone, nonprofit agency, or administrators at a homeless shelter. One of the few limitations is that the payee cannot be a convicted felon.


The payee does not have unlimited discretion in spending the funds. The payee must ascertain the needs of the claimant and use the benefits in his best interests. Funds must first be used for basic needs such as food, clothing and housing. The payee must also account for how the money is used each year.


Finally, either the claimant or the payee may request that the relationship be changed or terminated at any time. Upon receipt of the request, the Social Security Administration will investigate the situation and determine whether the request is appropriate.

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Residual Functional Capacity (RFC)

When a disability claimant’s impairments do not meet or equal a listing at step 3 of the sequential evaluation process, the Social Security Administration (SSA) is required to evaluate his or her residual functional capacity. SSA defines RFC as “what you can still do despite your limitations.” A Social Security Ruling (SSR) defines it as an assessment of an individual’s ability to do sustained work related physical and mental activities in a work setting eight hours per day, five days a week, or an equivalent schedule.

A claimant’s impairments and related symptoms affect ability to work. SSA evaluates all evidence of record to determine the “most you can do despite your limitations.” Typically, a claimant has completed certain forms which SSA has on file, describing his or her activities of daily living (ADLs). These forms ask questions about how a claimant spends an average day. Abilities: to cook, clean, do yard work, laundry, drive, mow the lawn, take trips, shop, watch movies, work on the computer; all give some indication as to whether those activities can be transferred to a work-like setting. So, for example, if a person states “I do nothing but sit and watch TV for 8 hours per day,” that is some indication, absent further explanation, that the person can sit and hold their head in a steady position for a full workday.

A claimant’s RFC comes into play at step 4 and, if necessary, at step 5 of the sequential evaluation process. At step 4, the question is whether the claimant can return to their past relevant work (PRW). Typically, a vocational expert is asked whether the claimant has the residual functional capacity to return to the type of work they have done in the past. If it is determined they do, the process stops, and a determination of “not disabled” is entered.

In making this determination, the adjudicator looks at the PRW as performed by the claimant, and as performed in the national economy. The Dictionary of Occupational Titles (DOT) is consulted for a definition of, among other things, the type of work performed, and exertional, and skill levels involved in performing the work. If it is determined that a person no longer retains the RFC to return to PRW, the evaluation is used again at step 5, to determine whether there are any jobs in the national economy the person can still do. If there are, the claimant is found “not disabled.”

Given the relative unlikelihood of meeting a listing at step 3, all claimants and their representatives should be prepared for this RFC assessment, in anticipation of steps 4 and 5 of the evaluation process. The importance of development of this aspect of a claimant’s case cannot be overestimated. A claimant should make every effort to obtain questionnaires tailored to their specific physical and mental impairments, and have them completed by their treating physicians. Claimants are often sent to consultative examiners (CEs) by SSA, for the purposes of obtaining just such a report. The CEs usually perform only cursory examinations, and generally determine that, with respect to ability to perform the 7 exertional functions (lifting, carrying, standing, walking, sitting, pushing, and pulling) a person is capable of at least sedentary, if not light work.
SSA has determined there are 1600 separate unskilled sedentary and light occupations in the national economy, most of which can be learned with a short demonstration in less than 30 days, and each of which represents hundreds of thousands of jobs across the nation. This represents a significant job base. It is therefore very important that a claimant be able to provide evidence from their treating physician to counter the RFC findings of the CEs.

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Acceptable Medical Sources: Who is considered acceptable and how are unacceptable medical sources treated?

When you apply for social security disability benefits, the Social Security Administration (SSA) uses medical and other evidence to determine whether an individual’s impairment(s) meet the SSA requirements for disability. When making a determination of disability, SSA will consider ALL available evidence in the individual’s case record. This includes medical evidence from acceptable medical sources, other evidence from medical sources, statements by the individual and others about the impairment(s), information from other non-medical sources and decisions by other governmental and nongovernmental agencies. However, not all forms of evidence are given the same weight by SSA when determining whether to award benefits.

Acceptable Medical Sources

SSA makes a distinction between acceptable medical sources and other health care providers who are not acceptable medical sources. Acceptable medical sources are licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists and qualified speech-language pathologists.

Evidence from acceptable medical sources is needed to establish the existence of a medically determinable impairment. Acceptable medical sources can give medical evidence and can be considered treating sources whose medical opinions may be entitled to controlling weight. Only acceptable medical sources can give medical opinions, which are statements from an acceptable medical source that reflects judgments about the nature and severity of an individual’s impairment. This includes symptoms, diagnosis and prognosis, and what an individual can and cannot do despite their impairments.

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What to Expect at a Hearing for Disability Benefits

The hearing for disability benefits will take place as follows:

• The ALJ will start the record and go over preliminary issues such as swearing in all witnesses.

• The ALJ or your social security attorney will elicit your testimony, which will take up the bulk of the hearing. Whether or not it is the ALJ or your social security attorney depends on the ALJ’s preference. Your social security attorney will have an opportunity to ask you additional questions if necessary.

• If present, the ALJ will ask a medical expert to testify about the severity of your condition. Note that many hearings for disability benefits do not have medical experts. This is neither “good” nor “bad.” Often, it just has to do with the ALJ’s preference.

• If present, the ALJ will ask a vocational expert to classify your past work and whether he/she believes you are able to return to it or any other jobs that exist in the national economy. Again, whether or not a vocational expert is present likely has to do with the judge’s preference.

• The judge will close the hearing for disability benefits.

Your Testimony


Either the judge or your social security attorney will elicit your testimony at the hearing. For purposes of this analysis, we will assume the judge is the one asking the questions. The types of questions asked at your hearing will vary, but will fit into the following basic outline:


· Your basic information (age, living situation, etc).
· Your highest level of education
· Your work history over the last 15 years
· Your disabling conditions
· Your medical treatment/medications & side effects
· Your daily activities/how you spend your day
· Your RFC assessment


Your Work History


It is important to note you should be as accurate as possible in describing your past work. You need not know the name of each employer, or exact dates of employment. Further, if you had several jobs but all in the same line of work (i.e., customer service), it’s enough to say “I worked in customer service” for “x” amount of years.


What is especially important, however, is how you performed your jobs. Think of what level of exertion was needed to do your past work. Did you sit all day at your job? Or did you stand most of the day? Was a mix of standing and sitting required? Were you required to lift heavy objects? What was the heaviest object you were required to lift? Above all else, think about why you wouldn’t be able to return to these jobs. Then, think of the easiest job you ever had and why you wouldn’t be able to do that now. At your hearing, this is exactly what you will need to prove.


Remember, whether or not you are able to find work is irrelevant. The process the judge will use to determine whether you’re disabled asks only whether any jobs exist that you might be able to do after figuring in your age, education, and any skills earned from past work.


One final note on working: if you attempted to work at any time during the application process, please make sure to discuss the specifics of the work attempt with your social security attorney. He/she will need to know for how long you worked, how much you made at your job, and the general duties that were required in order to perform the work. Prepared with this information, your social security attorney will be able to advise you as to whether or not you have a viable claim, and if so, how to argue your case effectively.


Your Disabling Conditions


Don’t forget to describe to the ALJ all of your conditions. Describe symptoms in detail, i.e., where the pain is, what is feels like, how often you feel it, its level of intensity with and without medication, on good and bad days, and how many bad days you have in a month. If you have mental and physical conditions, take time to describe each. Don’t forget other non-exertional symptoms like fatigue, difficulty concentrating, poor memory, fear of dealing with the public, etc.


Above all else, your hearing is not a time to be brave. Many claimants are hesitant to talk about a condition that is embarrassing to them. Remember, the judge as well as your social security attorney and any experts in the room are accustomed to hearing this sort of testimony. Do not be ashamed if you become emotional. Claimants who do not get emotional when talking about things that are difficult may seem disingenuous. Your candor and emotional vulnerability will not hurt your claim. One of the main purposes of the hearing is to give the ALJ and opportunity to gauge whether or not you are telling the truth. Thus, providing the most candid and honest answers is of key importance.


Your Medical Treatment


The judge may ask questions about past surgeries, medical tests performed, specialists you’ve seen, physical therapy you’ve tried, whether you’ve been given a cane or walker to help you walk, etc. The judge will want to know what you’ve tried to do in order to get better. The judge will also want to know what medications you’re currently on, and possibly what others you’ve tried. Don’t forget to talk about side effects from your medications as they can be very important. For instance, if pain medication reduces your pain, but makes it so that you are very drowsy and can’t remember to do simple tasks, this is an important detail. It means, while you can do something to help improve your condition, doing so comes with its own repercussions that further affect your ability to function normally.

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The Role of a Social Security Disability Lawyer

The role of a Social Security disability lawyer is to make filing your disability claim as painless as possible while ensuring that you receive the full amount of benefits to which you are entitled.

It’s hard for the average person to deal with the mountain of paperwork that comes with filing a Social Security disability claim. The Social Security Administration is diligently working to prevent fraud in disability claims (they suffer almost one hundred million dollars worth of fraud every year) and as a result their rules and regulations on how to properly file a disability claim have grown increasingly strict.

It’s unfortunately not uncommon for someone with a genuinely legitimate disability claim to be denied because of some minor clerical error in preparing their paperwork. A misplaced form or improperly filled out paperwork can make the Social Security Administration incorrectly flag your disability claim as fraudulent and that means you get denied the benefits that you are entitled to.

It’s not your fault; you don’t deal with this sort of bureaucratic red tap everyday. That is why you should always consult with an experienced social security disability professional when you need help getting your disability benefits!

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Social Security Disability and Obesity

SSR 02-1p, effective September 12, 2002, provides guidance on SSA policy concerning the evaluation of obesity in Social Security disability claims. This ruling came about as a response to the deletion of listing 9.09 for Obesity, which had once been a part of the Listing of Impairments in 20 CFR, subpart P, appendix 1.

Listing 9.09 first required that a claimant filing a Social Security disability claim exceed a certain weight based on his or her height. Once this requirement was met, the claimant would have had to exhibit one of the five following impairments:

• History of pain and limitation of motion in any weight-bearing joint or spine…
• Hypertension with diastolic blood pressure persistently in excess of 100 mm
• History of congestive heart failure manifested by past evidence of vascular congestion…
• Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight-bearing and persistent edema
• Respiratory disease with total forced vital capacity equal to or less than the value specified…

As of October 25, 1999 when the deletion became effective, a person filing for disability benefits could no longer claim obesity as stated above. However, pursuant to SSR 02-1p, obesity must still be considered in the evaluation process. Listing 9.09 was deleted because Social Security felt the listing’s criteria “were not appropriate indicators of listing-level severity.” In other words, the criteria set forth in listing 9.09 “did not represent a degree of functional limitation that would prevent an individual [applying for disability benefits] from engaging in any gainful activity.”

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Retirement and SSDI Benefits

We all know that, in order to receive disability benefits under Title II of the Social Security Disability Act, one must have enough work credits to establish eligibility. Once a person with the proper amount of work credits stops working because of disability or any other reason, he or she will be “insured” for five years. The date in which an individual will no longer be eligible to receive disability benefits because his or her insured status has expired is referred to as the “Date Last Insured.” Because of the Social Security Administration’s technical eligibility requirements, sometimes, otherwise medically eligible claimants will not be eligible for benefits. For instance, those individuals with too many resources to be eligible for Supplemental Security Income, whose Date Last Insured has also expired prior to the established onset date, will be deemed technically ineligible regardless of medical eligibility. This is a frustrating situation for claimants applying for disability benefits.

However, what happens once a claimant who’s Date Last Insured has expired reaches retirement age?

It would seem unjust, that a person who has worked all his or her life, but who became disabled and could no longer work for the years preceding his/her retirement age, would not be eligible for it because of the fact that he or she neglected to file for disability benefits or waited too long to do so. If this scenario were true, a lifetime of hard work and paying into the system would be all for nothing.

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Social Security Disability: Why is this taking so long?

I’ve been working all my life and paying taxes. Now that I’m not able to work and need help, SSA keeps denying my claim for disability benefits. Why is this taking so long?

It’s hard to be patient when you can’t afford to go the doctor and you don’t have money for medicine food, rent or utilities. But if you think about it logically, you can begin to at least understand why this process is necessary.

Think back to when you were working. Your employer would hand you your paystub, and you’d look to find that a chunk of your pay was taken out before they even gave it to you. You were paying toward the Social Security System. But you know that the government wasn’t holding your money in an account for you in case you should one day need it. The government was giving your money to the elderly and people who could no longer work.

So suppose that some government official approached you on payday and said, “Here’s your check, but before I give it to you, I’m going to take back three hundred bucks and give it to someone who can no longer work.” Your initial reaction might initially be a negative one, but you are human, and you at least to some extent agree that humans must take care of their elderly and sick – or you would not be applying for benefits now.

But this is the tradeoff - as a member of the workforce, I’ll contribute now to those who can no longer work so that I can be treated the same when I become unable to work. With one condition: before you take my money away from me and give it to those who can no longer work, at least make them prove they can no longer work. I surely do not want to give my hard-earned money to everyone who merely claims they can no longer work.

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Be informed! Stay in control!

Most claimants applying for Social Security disability benefits are completely in the dark as to how much the lifetime of contributions has been calculated and archived. Unbeknownst to applicants, it can be the details or errors on their records that can hold up their applications for months. These errors can range from unresolved arrest warrants to improper name changes. It is every American’s right to obtain the public information about them. Exercise them and request information about your standing today!

Below are examples of some of the information available:

FACT Query – contains your name, Social Security number, sex, date of birth, address, phone number, direct deposit information, account data, insured status data, payment cycle, primary insurance amount history, benefit data, benefit entitlement data, prisoner data, disability data, hospital insurance data, medical insurance data, medical insurance premiums, third party data, state exchange information, enforcement information, SSI information, overpayment/underpayment information, payment history, appeal information, remittance history

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