April 24, 2014

Absence of Political Influence Costs Social Security Disability Claimants

Tom CoburnI 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.

Read more:

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

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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.

Comments

  1. Linda Rost says:

    I read this blog “Absence of Political Influence…” with much interest. I am both a Non-Attorney Representative (EDPNA) and recently an SSDI beneficiary (although I am still working p/t, using SSA Work Incentives to re-enter the workforce). I have worked with non-profit organizations serving people with disabilities for over 25 years.
    I found your blog was an excellent overview of some of the forces at hand increasing denial rates and decreasing public perception of the needs of those truly disabled. It’s scary times when I have to explain this climate to clients who are only preoccupied with how they are going to meet basic needs without being able to work. Most of these same clients I could have reassured in the past that they most likely be approved without continuous appeals.
    The one matter I was hoping you’d explore more in depth was what political influence those with disabilities and their advocates could have. We’ll never be an AARP, but these voices haven’t been heard in the past. Could they be more so in the future? I see at least two campaigns that could influence this climate:
    • We need a much stronger voice for people with disabilities. Many have never voted, written their legislators, creating “personal stories” that most of us are not “able bodied men and women capable of climbing on roofs, playing sports or working for cash.” Some of us are still taxpayers or have plans to be in the future. In any case having a reliable source of income decreases the need for other costly social services.
    I don’t know how much could be accomplished, but an example on a smaller scale: a few years ago our state took away dental, vision, and other coverage for those on MassHealth (our state’s Medicaid). It wasn’t until recipients were actually affected by this that they took action, but they did through state legislative contacts, rallies, and letters to media. It’s unknown how much these actions were of influence, but a year or two later all coverage was restored.
    As you said, SSA disability is “perceived by politicians and the general public as inherently corrupt, out of control and mismanaged.” However, “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.” In my years of doing representation I have never seen the quantity of “anti-beneficiary/recipient” stories and attitudes I see now.

    • Where are our voices in this? Every time a story comes out about an ALJ with 90+% approval rates or a beneficiary collecting SSDI while working under the table, could it be countered? How about having the public more aware of claimants with legitimate disabilities, after waiting close to 3 years from application for a hearing, forced to appear before an ALJ with a less than 10-20% approval? Is the public aware of the toll that takes on a disabled individual?
    Could anecdotes be told of individuals using Ticket to Work and other incentives to use SSI/SSDI as a “stepping stone” to voluntarily re-enter the work force?
    There’s a multitude of other accounts that could be told of how benefits/payments enable an individual to increase the quality of life for them and their families, and also profit society. There’s also many, many incidences of unfairness a deserving applicant or beneficiary/recipient may go through at the hands of local offices, adjudicators at all levels, etc. Is the public aware of what that experience may be like?
    I am probably very much “preaching to the choir” with my views, but if you have any feedback if increasing public awareness and political influence and if motivating the disenfranchised is at all realistic I’d love to hear from you on that (or any other thoughts).

  2. Linda, unfortunately I doubt that disability recipients will ever be much of a political force. Interest groups need cash to pay lobbyists and contribute to political campaigns and folks on disability are not very likely to have their voices heard.

  3. Unfortunately, the more money the goverment spends, the tighter they think they need to close the purse strings. Does not make sense, but this seems to be the typical response.

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