Is it really easier to win a World Series ring than to win Social Security disability benefits? Atlanta’s Fox 5 reports on the sad case of former Yankees second baseman Brian Doyle who has been denied twice by Social Security despite a bout with leukemia and a serious case of Parkinson’s Disease.
Atlanta’s Fox-5 recently reported a story about Mr. Doyle who has been waiting months and months for a hearing with a Social Security judge despite battling leukemia, two neck fusions and a diagnosis of Parkinson’s Disease.
With all of the chatter by political types about “rampant fraud” and abuse, the reality is that deserving claimants like Brian Doyle continue to suffer because of Social Security’s delays and inefficiencies.
And there is no guarantee that Mr. Doyle will be approved. Approval rates in the downtown Atlanta hearing office range from less than 20% to over 65% so whether this obviously disabled gentleman gets approved will rely as much on the luck of the judicial lottery as his medical records. Mr. Doyle is represented in his case by a very capable lawyer, my good friend Greg Rogers, so hopefully this deserving claimant will get some good news soon.
Link to the Fox 5 story
This is the video segment about Social Security disability delays, hosted by investigative reporter Randy Travis of Atlanta’s Fox 5 TV. Travis highlights what most Social Security disability lawyers already know – that the judge assigned to your case could mean more than the medical records in terms of whether or not you receive benefits.
In the Atlanta downtown hearing office, there are judges who approve less than 20% of cases, and judges who approve more than 70%. So two identical claimants – each with the exact same medical issues – would likely get different results based solely on the luck of the draw.
And you are going to wait – often two years or longer – before you even get the chance to appear before that judge.
While there are other problems with the SSD process, Mr. Travis’ report highlights two of the biggest issues – the wildly divergent approval rates by judges within the same hearing office and the outrageous delays.
Atlanta News, Weather, Traffic, and Sports | FOX 5
If you have received a claim denial notice from Social Security, you are familiar with the language used in these denials:
We have determined that your condition is not severe enough to be considered disabling. In deciding this, we considered the medical records, your statements, and how your condition affects your ability to work….Doctors and other people in the State agency who are trained in disability evaluation reviewed the evidence and made the determination based on Social Security law and regulations….
Now it turns out that these “doctors and other people” are not so well trained, nor is it likely that they spent more than a few minutes reviewing your file.
Continue reading →
For as long as I have been in practice, I have advised my clients that if they received an unfavorable hearing decision, they could file an appeal with the Appeals Council and, at the same time, file a new claim for benefits.
As of July 28, 2011, this “double filing” option is no longer available.
SSA has issued a “ruling” called SSR 11-1p which says in part:
Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.
Social Security concluded that this new rule was needed because of the administrative complications of coordinating appeals with new claims. Continue reading →
Recently, I represented a claimant afflicted with cancer who clearly met Social Security’s definition of disability – she had a medically determinable condition that precluded substantial gainful activity and her condition had lasted 12 consecutive months and was longstanding in nature. The judge assigned to this case is a no-nonsense person who took no more than 5 minutes to conclude the hearing.
In the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.” This time, however, he closed the case without saying anything. After the recording equipment was turned off, he asked my client to leave the room but asked me to stay. He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case. I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”
Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings. The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch. As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.
In state and federal courts, you find baliffs and court personnel who provide security to judges. In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room. Continue reading →
This past February, Social Security issued a press release announcing that it was adding thirty-eight (38) medical conditions to its “compassionate allowance” program. SSA describes its compassionate allowance program as follows:
Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits. It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals.
There are now 88 medical conditions that qualify for compassionate allowance. About half of these conditions are forms of cancer, while the other have are made up of rare diseases, many of which affect children. Among the more common conditions that now qualify for an early approval:
- early onset Alzheimer’s Disease
- mixed dementia
- idiopathic pulmonary fibrosis
- mucosal melanoma
A full list of all of the compassionate allowance conditions may be found by clicking on the link which will take you to Social Security’s internal Program Operations Manual System (POMS).
If you or a loved one are afflicted by any of the conditions described under the compassionate allowance program, it is very important that you make that fact known to the adjudicator who is assigned to your claim. You should not assume that the state agency adjudicator is familiar with the compassionate allowance list.
I have written extensively on this blog about the claim processing delays that continue to plague Social Security disability. I suspect that there are a lot of folks out there who are suffering and struggling trying to stay at work, perhaps at the expense of their health, because they are concerned that if they stop working, they will run out of savings before their case is decided. I recently received the following question from a gentleman named Steve who is fighting diabetes and diabetic complications and who finds himself with this quandary:
I am a 43 year old diabetic. I was diagnosed 7 years ago and progressed quickly from pills to insulin injections and have now been on an insulin pump for 3 years. I have neuropathy in both legs, heart disease, and many other diabetic problems, because of high blood sugar. I am at an ideal weight of 170 Lbs. and 5′ 9″ height and have always been active and try to eat healthy. I take 40-50 units of insulin each day, but my A1C readings are still 10+. I am no longer able to perform my work assignments. My employer (25years)had even allowed me to change to an office job but I am still not able to sit for over an hour without my legs hurting and I have had many hypo (low-sugar) episodes at work which scared everyone. My doctor’s have suggested that I quit so that I can concentrate on this disease before it kills me, but the stories of possible delays in SSDI have really concerned me and my family. I have enough money saved to survive for a year, but that is it. Do you think someone like me would qualify for SSDI benefits, and what would a potential wait be?
Here are my thoughts: I think that Steve has very good reason to be concerned. When you apply for benefits, there are two times when you are likely to be approved – at the initial application stage, which will be within four to six months after application, or at the hearing stage, which could be two to three years after application.
Initial application approvals are almost always arise in cases that meet a listing. Steve is a diabetic and the applicable listing is at Listing 9.08. State Agency adjudicators will approve diabetes cases on the listings but they will expect the medical records to document as many of the following complications:
- long standing neuropathy (numbness in extremities)
- long standing retinopathy (vision issues)
- blood sugar readings at 200 or higher over an extended period of time despite increasing dosages of insulin
- organ damage (documented by abnormal lab readings)
- frequent urination
- sexual dysfunction
- statement or checklist from treating doctor that condition equals 9.08
In my view, you need to aggressively argue to the adjudicator that your case meets a listing – do not assume that the adjudicator will figure it out.
If your case is denied at the initial application stage, it is very unlikely that a different adjudicator will approve it at reconsideration. Statistics I have seen suggest that no more than 10 to 15% of cases are approved at the reconsideration appeal level. Continue reading →
When I talk about the disability claims process, one of the most important things I can do for folks needing help during this difficult time is to make sure they know what to expect. This is especially true when it comes to the amount of time it could take from initial filing to a favorable decision.
When Georgia Congressman John Lewis set reduction of SSA’s disability case backlog as one of his top priorities, the Atlanta North processing time for claims was the worst in the country at 828 days, and in Atlanta proper it was 750 days. He noted that “people are waiting years for benefits they deserve, some are even dying while waiting. This is simply wrong…Somehow the richest, most powerful nation in the world must find a way to meet the needs of these Americans. They have suffered enough. They should not suffer at the hands of their government.”
Mr. Lewis testified before the Budget Committee, and urged his colleagues on the House Ways and Means Committee to give SSA the funds needed to hire more Administrative Law Judges and disability claims staff.
Last month, Social Security Commissioner Michael Astrue announced that for the first time in a decade, the agency ended its fiscal year with fewer pending disability hearings than in the previous year. It closed FY 2009 with 722,822 pending hearings – a reduction of more than 37,000 cases from its 760,813 hearings pending at the start of the fiscal year. Processing time for cases also improved over the same period, dropping from an average of 514 days in FY 2008 to 491 days in FY 2009.
“Our backlog reduction plan is working, and progress is accelerating,” Commissioner Astrue said. “Even in the face of a significant increase in our workloads as a result of the worst recession since the Great Depression, we have reduced the hearings backlog for nine consecutive months. Thanks to the efforts of thousands of hardworking Social Security employees and the additional funding we received from President Obama and the Congress, we have exceeded our backlog reduction goal for this year.” Click on the link to see SSA’s recent news release discussing these developments. Continue reading →
Back in August, 2007, I wrote a blog post entitled “How Long Do I Have to Wait for my Hearing Decision.” Back then I reported that in most cases, a claimant would have to wait two to three months for a hearing decision.
Fast forward to 2009. That two to three month period is now four to six months. Here’s why: about 18 months ago, the Social Security Administration convinced Congress to allocate more money to hire new administrative law judges, and SSA immediately hired around 100 new judges. At the same time, Social Security put into process its conversion from paper files to electronic files and they created the infrastructure to provide for video hearings.
In Atlanta, where I practice, SSA created a video hearing ODAR office in Marietta, Georgia with three hearing rooms available to handle video hearings.
The good news – Social Security is now equipped to offer claimants administrative hearings. The bad news: the hearing offices often do not have enough support staff to process all of the decisions being issued by new judges and judges appearing by video. Continue reading →
Social Security has released its latest reports documenting delays in hearing offices throughout the country. The report, from the Office of the Inspector General, does not contain a comparison to last year’s report but it does appear to me that there has been a slight improvement in reducing delays. In Atlanta, where I practice there has been a slight improvement from over 900 days delay to 713 day (downtown Atlanta) and 872 days (Atlanta North).
This month’s NOSSCR (National Association of Social Security Claimant’s Representatives) newsletter contains a story about SSA Commissioner Michael Astrue’s efforts to increase the productivity of the judges and to reduce backlogs. As noted before, I applaud SSA’s transition to electronic file folders and it does appear that Commissioner Astrue’s efforts are beginning to pay off.
I scanned the report from the NOSSCR Forum bulletin, which you can download by clicking on the link here: ssdelays