This past Sunday, 60 Minutes aired a segment called Disability USA, in which correspondent Steve Kroft reported on the “alarming state of the federal disability program” which has exploded in size and is about to run out of money. Kroft interviewed Senator Tom Coburn (who is also a medical doctor), several current and former Social Security employees and former associate attorneys for a national law firm that advertises heavily 1.
The gist of the story is that hundreds of thousands of able-bodied people have been approved for disability and are costing taxpayers millions of dollars. Further, the story suggested that disability lawyers are culpable in the outsize growth of the disability program because they advertise heavily. Further, there was an implication that at least some disability lawyers game the system with inappropriate and/or illegal relationships with doctors and judges. Several of the judges and SSA employees interviewed opined that the disability program has devolved into a last resort unemployment program rather than one focused on people with serious disabilities.
I have no doubt that fair minded American taxpayers who have no experience with the disability program were and are appalled at a system which appears to be out of control and rife with fraud and manipulation.
The 60 Minutes story has given rise to furious rebuttals from advocates for the disabled and from my colleagues at the bar. Writing in the Los Angeles Times, Michael Hiltzik takes 60 Minutes to task for exaggerating the numbers of disability beneficiaries and for ignoring external factors such as the aging of the Baby Boomers that has contributed to the rise in disability claims. Mr. Hiltzik also counters the story’s claim that it is easy to win benefits. He points out – correctly, based on my personal observations – that two thirds of initial applications are denied and about 41% of claimants who appear before a judge months or years later actually win.
So, who is right in this debate? Critics of the disability programs argue that a significant number of claimants are slackers and fraudsters – able bodied men and women with a few aches and pains who would rather sit at home and collect disability and welfare benefits than work. Disability advocates contend that in general disability benefits are difficult and time-consuming to win 2 and that the relatively few instances of fraud receive outsize publicity.
As a disability attorney in a busy metropolitan area (Atlanta), I can tell you from personal experience that disability benefits here are not easily recovered. A visit to the site DisabilityJudges.com will show the approval rate by each judge in the country as well as approval rates in every hearing office. In the Atlanta hearing offices, the hearing approval rate hovers around 50% and is declining. In more rural areas the approval rate averages closer to 40%.
Delays in Georgia can reach 3 years from the time a disability application is filed and a hearing decision issued. And the approval rates among judges within the same hearing office can range from 25% to 55% – meaning that one’s chances at approval are somewhat a function of pure chance.
I would acknowledge that many people file for disability in a desperate attempt to support themselves where jobs are scarce for less educated, less skilled workers. I think that while some attorneys accept every case hoping that the averages will favor them, I believe that most disability lawyers are increasingly likely to decline representation in less deserving cases because it is simply too expensive to pay support staff to develop claims that are not likely to be approved, and where the maximum fee per case is (almost always) capped at $6,000. This practice area is not like tort claims where a case with liability issues but significant damages might result in an attorneys fee award in the tens of thousands of dollars.
I believe that many disability lawyers like myself are more likely than ever to decline representation of a claimant who has purely subjective symptoms or who does not have steady and supportive medical treatment. I am equally wary of accepting a case where I believe the prospective client is disabled but I see gaps or non-supportive medical records in the file.
My experience has also been that most judges sincerely want to award benefits only to deserving claimants. A few judges are more willing to give credence to a claimant’s subjective complaints, and a few judges show no interest whatsoever in a claimant’s testimony and look for any reason possible to deny a claim. Years ago I ran across one judge whose intent was to approve every claimant – he was investigated and his contract terminated. I am not aware personally of any instances of fraud committed by local lawyers with judges or doctors. Thus, correspondent Croft’s focus on one lawyer in Kentucky who allegedly scammed the system by paying off a judge paints an inaccurate and unfair picture of the vast majority of disability lawyers who zealously and ethically advocate for their clients.
In my experience I would estimate that about 75% of applicants I see have tried to work through their pain or other symptoms and see disability as a last resort. I would acknowledge, however, that for many of these folks, they begin to see themselves as “disabled” after about 6 months to a year of being out of work 3 meaning that even if a job was to come available they would have to overcome both psychological and physiological factors to return to work.
I sense that about 25% of the applicants I represent have basically given up on the idea of returning to work – often because of the severity of their symptoms arising from conditions such as multiple sclerosis, heart failure or cancer.
If statistics truly show that able bodied people are winning disability then it seems to me that Congress needs to revisit the standards that SSA uses to award disability, and they need to expend resources to identify and prosecute cases of fraud. As a disability attorney I am an advocate for my client. If I am representing an individual who I feel meets the criteria for approval, I am going to do everything in my power to present all available evidence and to argue forcefully on behalf of my client at his hearing.
I will not knowingly present false evidence to Social Security or countenance perjury by a client. I will also choose not to accept for representation a case where I do not believe in my client. But I think it is an exceedingly bad idea to try to reduce the disability program’s outflow by restricting or eliminating the public’s access to information about the disability program.
Therefore, while Mr. Croft’s program did expose issues with fraud (and sometimes widespread fraud) in certain geographic areas, he failed to question the rulemakers – members of Congress and Social Security officials – about the standards they set for what it means to be disabled.
Disability adjudications is necessarily a subjective exercise and a judge’s ruling will be influenced by his personal philosophy about what it means to be disabled. Ultimately, however, the buck stops with the U.S. Congress. If the federal government wants to be in the disability business, it needs to set out clearer rules and procedures about what it means to be disabled and should limit the tinkering with these rules that always seems to result in entitlement expansion.
- I have previously written and spoken about Senator Coburn’s efforts to expose fraud and inefficiency in the SSA disability program ↩
- Mr. Croft contends that lawyers, especially those who advertise, bear responsibility for the growth of the disability rolls. He also contends that the federal government pays millions of dollars in fees each year to disability lawyers. In fact, disability lawyers are almost always paid a percentage of their clients’ past due benefits, so the funds paid by the government to lawyers are withheld from an approved claimant’s benefits, less a processing fee that the government charges lawyers for this withholding service. ↩
- The psychologists call this “decompensation.” ↩
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 29 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.