I have no doubt that a significant percentage of disability claimants denied by Social Security judges do have significant medical or mental health problems that would prevent them from performing competitive work. Why, then, are these honest but unfortunate men and women receiving denials when they should be receiving fully favorable decisions?
This is a very unsettled time in the world of Social Security disability and there are forces in play that you as the claimant and me as the claimant’s attorney cannot control.
On one hand, we have a President and Congress who are intent on expanding our nation’s social safety net. Whatever your political leanings, there can be no doubt that the federal government has committed itself to spend trillions of dollars in various social programs. Politicians of both parties assure us that Social Security and Medicare are sacred and that we will not balance our budget on the backs of seniors and the poor.
At the same time, Congress regularly holds hearings to identify instances where disability claimants have defrauded the system, or where judges have approved 99% of cases brought before them. I recently highlighted the efforts by Oklahoma Senator Tom Coburn to crack down on fraud and inefficiency in the disability decision making process. You can view that video here.
The press regularly reports that the disability trust fund will run out of money in 2016 “unless something is done.” Here is an example of one such article from the Washington Post.
As any disability attorney will tell you, the current commissioner of Social Security has sent the word down that too many cases are being approved and that judges with “excessive” pay rates will be reviewed and possibly dismissed. Statistically, the approval rate at hearings nationally has gone from around 60% to less than 40% of the past 18 months. This is not a coincidence.
What, then, is going on?
In my view the Social Security disability claimants have become the straw man of Congressional budgetary politics. In any program as large as SSA, there will be fraud and mismanagement. And given the subjective nature of disability adjudication, there will be some claimants who fool even cynical judges.
It is easy for everyone to feel anger and disgust at video sting operations showing approved claimants who are in fact able bodied men and women capable of climbing on roofs, playing sports or working for cash.
Unlike Social Security retirement beneficiaries who rely on organizations like the AARP to lobby for their interests, there is no AARP for disability claimants. Even lawyer interest groups like the American Bar Association or the American Trial Lawyers Association pay very little attention to Social Security disability. Why? The money is not significant enough. Tort reform is a hot button issue for trial lawyers because a big negligence case can generate tens of thousands or even millions of dollars in attorneys fees. Attorneys fees in SSDI cases are capped at $6,000.
It is far easier for Members of Congress to pump money into federal programs that impact large numbers of motivated voters, while slicing funds from a disability program that is perceived by politicians and the general public as inherently corrupt, out of control and mismanaged.
At the same time, evidence of unfair treatment by Social Security towards deserving claimants barely makes a ripple on the national consciousness and certainly does not show up in Congressional subcommittee reports. Were you aware, for example, that Social Security just settled a class action lawsuit was filed in 2011 alleging that 5 Queens, New York disability judges regularly ignored evidence to wrongfully deny thousands of New York City area claimants at hearings. Under the terms of this settlement, the previously denied claimants will get new hearings – although the judges responsible for the wrongful conduct will not lose their jobs.
Unfortunately I do not foresee any significant changes to either the prevailing attitude about Social Security disability or to SSA’s capacity to impose meaningful reform on the system.
What, then, are you – the honest, unfortunate and legitimate claimant – supposed to do? There are some action steps you and your lawyer can pursue. I’ll tackle that in my next blog post.
Reuters article about proposed settlement in Padro v. Astrue
Read Senator Tom Coburn Congressional report – click here
Padro v. Astrue – website published by plaintiff American Association for Disability Policy Reform
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.
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