The Role of the Representative in the Social Security Disability

Determination Process

Rebecca Vallas, Esq.Deputy Director of Government Affairs

NOSSCR

September 12, 2013

Agenda• Who receives disability benefits?• The application process• Why do claimants seek representation?• The role of the representative • Why might claims denied at initial later be

awarded at hearing?• The representative fee structure• Why a non-adversarial process?

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Title II and Title XVI: Disabled Beneficiary Characteristics

• A diverse group, including people with: • Severe illnesses: heart disease; end stage renal

failure; advanced cancers• Mental disabilities: significant intellectual

disabilities; severe mental illness• Severe physical disabilities: post-polio

syndrome; severe cerebral palsy• Sensory disabilities: deafness; blindness

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Children Receiving SSI

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Title II and Title XVI: Disabled Beneficiary Health

• Most have poor health: – About 3 in 4 Title II and Title XVI disabled adult beneficiaries

report fair, poor, or very poor health (73%)

• Many report worsening health:– About 2 in 5 Title II and Title XVI disabled adult beneficiaries

report their health is “somewhat” or “much” worse compared to last year (42%)

• Many are terminally ill: – About 1 in 5 male SSDI beneficiaries and 1 in 7 female SSDI

beneficiaries die within the first 5 years of receiving benefits

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Title II and Title XVI: Disabled Beneficiary Age

• Title II disabled workers: – Average age of about 53

• Title II disabled beneficiaries: – Just under 7 in 10 are over 50 – About 3 in 10 are over 60

• Title XVI beneficiaries:– About half are over 50

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Title II and Title XVI: Disabled Beneficiary Education & Prior Work• Low educational attainment:– About 3 in 4 Title II and Title XVI disabled adult

beneficiaries have a H.S. diploma or less (76%)– About 2 in 5 did not finish high school (40%)

• Typical past work: Unskilled (22%) or semi-skilled (40%) with moderate or light strength requirements (75%)

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— Cashier-Checker / Cashier — Nurse Assistant — Fast-Foods Worker— Home Attendant— Laborer

— Material Handler— Packager, Hand— Stock Clerk— Cleaner, Housekeeping— Janitor

Benefits are Modest, but Vital• Average benefits are modest:– Title II, disabled beneficiaries – $1,060 / month (2011)– Title XVI, all beneficiaries –$520 / month (2012)

• Benefits comprise most/all of a majority of beneficiaries’ income– SSDI is the majority of income for over 70% of non-

institutionalized beneficiaries.– For nearly half of non-institutionalized beneficiaries

SSDI is over 90% of income– Over 57% of SSI beneficiaries have no other source of

income

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Effects of Title II and Title XVI Disability Benefits

• Reduce and alleviate poverty• Prevent and reduce homelessness• Prevent and reduce institutionalization• Maintain health:– Access to Medicare and Medicaid– Help with out-of-pocket medical expenses

• Help secure access to essentials: housing, food, clothing, transportation

• Help cover the cost of caring for minor or adult child with a disability

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SSDI, SSI Application Process • Individual submits application for benefits• Field office processes application, screens for technical

criteria, sends to Disability Determination Service (DDS) for medical decision

• DDS requests medical evidence from providers; sends forms to providers to complete

• DDS may request Consultative Examination (CE)• DDS makes initial decision about whether individual is

disabled• Average time: 3-5 months for initial decision• Same definition of disability for SSDI, SSI

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Application Process (cont)

• If denied, right to appeal– 60-day* deadline, from date of notice

• Reconsideration (in most states)• ALJ hearing• Year or longer delay before getting a hearing• Additional levels of appeal • Appeals Council (another year-plus delay)• Federal Court

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How Many Claims Are Approved?• Disabled worker applications awarded

benefits, 2010

Awards: 33.2%

Denials: 66.8%

Source: Social Security Administration, Annual Statistical Report on the Social Security Disability Insurance Program, 2011, Table 59.

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How Many Claims Are Approved?• Adult SSI applications awarded benefits, 2011

Awards: 28.6%

Denials: 71.4%

Source: Social Security Administration, Annual Statistical Report on the Supplemental Security Income Program, 2011, Table 69.

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How Many Claims Are Approved?• Child SSI applications awarded benefits, 2011

Awards: 37.9%

Denials: 62.1%

Source: Social Security Administration, Annual Statistical Report on the Supplemental Security Income Program, 2011, Table 69.

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Why Do Claimants Seek Representation?• SSA rules, regulations are highly technical• Complex, multi-level process can be procedurally

daunting• Especially for individuals in poor health, with mental

impairments, limited education• Reason(s) for initial denial often a mystery to claimants

with serious impairments• Time of great / greatest anxiety; undeniably high stakes

– Unable to work, no health insurance nowhere else to turn, family to support… last resort

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The Role of the Representative• Recognizing value of representation, Social Security Act

requires SSA to inform denied claimants of options for legal help 42 U.S.C. § 406(c); 42 U.S.C. § 1383(d)(2)(D).

• Many ALJs send pro se claimants to seek representation• Claimants with representation have significantly higher

allowance rates– Estimates of “success gap” range from 15-30%*

* See, e.g., Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 FORDHAM URB. L. J.37 (2010).

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The Role of the Rep. (cont)• Protects rights of claimant• Explains process & standard to claimant• Most representation occurs at ALJ hearing

level; some assist at initial• Identifies accurate, complete list and nature of

impairments• Fully develops the record – evidence often

missing at initial level

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The Role of the Rep. (cont)• Marshals medical / other evidence of claimant’s

entitlement to benefits– Medical records --Therapy notes– Test results --School records– Hospitalizations --Vocational evidence

• Prepares legal briefs for ALJ, analyzing facts of case vis a vis statutory standard – Sometimes sparing need for hearing

• Thoroughly examines Medical, Vocational Experts at ALJ hearing (very difficult for pro se claimants)

• Helps claimant stay focused at hearing19

Reasons Claims Denied at Initial May Be Allowed at ALJ Level

• De novo examination of claim• More accurate, complete list of impairments• More complete medical, vocational record• New treating sources• First time SSA adjudicator sees clmt in-person• Claimant health worsens / new impairments

while waiting 1+ year for hearing• Vocational, Medical Experts

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Representative Fee Structure• Fees at the administrative levels

– Two mutually exclusive options (governed by 42 U.S.C. § 406(a)):

• Fee agreement (most common)– 25% of back benefits, or $6,000 – whichever is smaller– Contingency basis

• Fee petition– Rep submits time records + fee request; adjudicator determines

fee for each individual case

• Fees at federal court level– Governed by 42 U.S.C. § 406(b); set by Fed. Ct. judge

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A Non-adversarial Process• Longstanding view of Courts, Congress, SSA: claims

process is informal, non-adversarial• SSA’s role is to establish criteria & procedures;

determine disability; pay benefits• ALJ is neutral fact-finder / adjudicator; goal is to

correctly determine disability under the statute• SSA and claimant are not parties on opposite sides

of legal dispute• If claimant represented, rep serves as ally to ALJ,

assists in developing record, etc22

Proposals to Make Process “Adversarial”• Proposal: “government representative” to

oppose claim for benefits• Would represent a radical shift • Government Representation Project (GRP)

– One-year pilot at 5 hearing sites (1982)– Lengthened processing times; no improvement in case preparation or

decisionmaking– Costly: $1M / year for 5 hearing sites

• Compare: more than 140 hearing offices today– Later found unconstitutional & in violation of Social Security Act in Federal

Court

• “Public defenders” ? 23

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Questions?

Rebecca VallasDeputy Director of Government Affairs

NOSSCR Government Affairs Officerebecca.vallas@NOSSCR.org

202-550-9996www.nosscr.org@rebeccavallas

How Has the Number of Children Receiving SSI Changed Since 2000 & Why?

• 2000-2011: number of children receiving SSI increased from 847,000 to 1.28 million

• Almost all of this increase is due to rise in number of low-income children during same period (see Fig. 3)– Number of children <200% FPL grew by 5.8 mil

• Share of low-income children who receive SSI: 3-4%, 2000-2011

• Rates of child SSI receipt vary with state unemployment levels*

*Lynn Karoly and Paul Davies, “The Impact of the 1996 Childhood Disability Reforms: Evidence from Matched SIPP – SSA Data” (Ann Arbor, MI: University of Michigan Retirement Research Center, 2004). 25

Figure 3: Number of Children Receiving SSI and Number of Low-income Children, 1996-2011

Sources: US Census Bureau, POV01 Tables from Historical Poverty Tables, Current Population Survey, Annual Social and Economic Supplement; and Table 3 in Social Security Administration, SSI Annual Statistical Reports. 26

What are the Projected Trends in Childhood SSI?

• SSA Actuaries and CBO project the number of children receiving SSI will level off over the next few years

• Number of applications and new awards declined 2010-2012

• Payments as a share of GDP also projected to decline – .062% .052% of GDP by 2022

Sources: Social Security Administration, Annual Report on the Supplemental Security Income Program, 2012 (Baltimore, MD: 2012); Congressional Budget Office, “Supplemental Security Income: March 2012 Baseline,” (Washington, DC: March 2012). 27