32 | July/August 2023 | BAEC Bulletin
Social Security Administration Has Its Thumb on the Scales of Disability
By Jeffrey Freedman, Esq .
Applying for Social Security Disability (SSD) has always been a complex and challenging process, but today’s environment has reached a new level of difficulty. President of the National Organization of Social Security Claimants’ Representatives, David Camp, says, “Social Security has attempted by regulation to authorize its judges’ decisions to be of lower quality in the eyes of a federal court.” There is a business strategy in place on the part of the Social Security Administration (SSA) to make it more difficult than ever for a claimant to obtain SSD benefits. My firm began handling SSD claims in 1980. Over the years, we have helped more than 20,000 claimants obtain the benefits they were entitled to. Throughout that time we have seen fluctuations in the backlog, wait times, and payment delays. These fluctuations have historically been in response to recessions, unemployment rates, and then the pandemic. SSA statistics reported in FY 2022, that 1.8 million claims were filed with the SSA. Out of those applications, more than 1,000,000 were denied. That year, only 460,000 cases went to the first level of appeal and 15 percent of the claims where an application had been denied were approved. At the next step, the hearing level, Administrative Law Judges nationwide heard 235,000 cases. Eleven percent of those claims were dismissed and 50 percent denied. The Social Security Appeals Council (the next available level of appeal) reviewed 54,000 decisions in 2022. Of these, 12 percent were remanded to SSA and 85 percent were denied. The first time a case can be reviewed by a Judge who is not directly contracted by the SSA is when an appeal is taken to the United Stated District Court. In nearly six out of 10 cases that are appealed to District court, the federal judge assigned to the cases questioned SSA’s decisions and remanded them back to Social Security to have a new hearing. The majority of these claims went back to the administrative law judge who first heard the case. (SSA.gov) Note that at each stage of the process, the number of claimants who have chosen to continue to pursue benefits drops significantly. Attorneys who advocate for claimants see a common situation: individuals who can barely take care of their personal needs and the medical issues they face find it overwhelming to continue to fight for benefits — in some cases, it has taken more than a decade for a claimant to go through all possible appeals. Unfortunately, too many give up rather than endure the stress of the battle. Two decades prior, in 2002, ALJs were approving an average of 70 percent of appeals. In 2012 a corruption case where a Kentucky attorney defrauded taxpayers of $600 million in disability benefits came to light. This caused Congress to supervise the SSA more closely and to begin to pressure the agency to deny claims. At that time attorneys representing claimants saw case approval rates drop to 45 percent. ALJs, who are supposed to be independent of agency coercion and influence, are now under scrutiny for what is seen as “generous pay rates” (awarding benefits to too many claimants). A number of ALJs with above-average approval rates have spoken out about SSA reviewing their statistics and expressing concern that they were issuing too many favorable decisions. However, there is no data regarding SSA reviewing judges who statistically deny the majority of claims they hear. In fact, over the years SSA has adopted changes that make it more difficult for ALJs to approve claims. First, ALJs are required to hear and decide about 50 cases each month. Since claimants must submit extensive medical evidence, this means one case file may contain 3,000 pages or more for review. Then, a regulation change in 2017
changed the way ALJs are allowed to review medical opinions. The old rule gave preference to the opinions from the claimant’s longstanding treating physicians or psychiatrists who best understood the claimants’ medical issues. The new rule advised ALJs to give the same weight to the opinions of SSA doctors who conduct a brief one-time examination of the claimant. Further changes have affected the significance of musculoskeletal conditions and mental impairments; certain evidence can be excluded if it is submitted too close to a hearing; the ability to speak English is no longer considered as a vocational factor when determining work; the agency is not required to assess disability determinations made by other agencies such as Workers’ Compensation or the Veterans Administration; and vocational experts are not required to disclose evidence that supports their testimony regarding the jobs they say the claimant could still do. It is these conditions that cause Federal Court judges to disagree with a growing number of the Administration’s decisions. Once the cases are reviewed outside the purview of Social Security’s umbrella, logic and reasoning prevail; and claims are often sent back to correct the errors of the prior decision My firm began helping SSD claimants in 1980 because we saw that people who were disabled and could no longer work needed help getting the benefits they had paid for during their working lives. At this point, until the agency takes its thumb off of the scales of justice and changes this culture of denying claims without regard for the law or the humanity of claimants, our services as claimants’ representatives is even more critical. At our firm, we have had clients pass away from their medical conditions before their claims were approved. Social Security Disability applicants need knowledgeable, skilled claimants’ representatives to help them through this long, laborious and often biased process — a process that needs to change to even out the scales of justice. Jeffrey M. Freedman, Esq., has represented Social Security Disability Claimants for more than 30 years. He was a founding member of the National Organization of Social Security Disability Claimants Representatives. For more reading on Disabilty benefits, please see the Buffalo News article “Fighting the Onerous Battle to Obtain Disability Benefits” with commentary from BAEC Member Chris Grover.
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