by Gerald McIntyre, NSCLC Attorney

Recent press coverage, including a lead story in the New York Times (Disability Cases Last Far Longer as Backlog Rises,” Dec. 10, 2007) has shined a spotlight on the toll in human suffering caused by excessive delays in the Social Security Administration’s (SSA) appeals process for disability claims. Meanwhile, in a development which has largely passed under the radar, SSA is proposing major changes to its appeals process which will result in many of the same people in the appeals pipeline never receiving the disability benefits for which they have been waiting so long, even though they are clearly disabled. SSA estimates that these changes, if put into effect, would result in $1.5 billion less in benefits paid out over the next 10 years.

Reading the proposed changes to the appeals process would readily put most readers to sleep as they are awash in a host of new technical requirements, barely intelligible to lawyers practicing in the field. However, the cumulative effect of these new rules will make it more difficult for those who most need the benefits to succeed in their appeals. The current appeal process is designed to be informal and consumer friendly in recognition of the profile of the typical disability applicant and to enable people to file applications and the initial appeals on their own without the need to hire a lawyer. The proposed rules would change all that by creating a series of traps for the unwary with time limits for every step in the process, including a requirement that administrative law judges not consider some medical evidence of disability if it is not submitted within strict time limits. The new rules would even require administrative law judges to not consider any evidence that a person’s medical condition has worsened when a case has been remanded for a new hearing on disability.

In a telling admission, SSA states in the summary of the proposed rules that it would like to make the procedure in the final stage of the administrative appeals process more like the procedure in a federal court of appeals. This conveniently overlooks the fact that parties to federal court litigation almost invariably start the process with a lawyer to represent them, whereas Americans almost never hire a lawyer to represent them when they go to their local Social Security office to file an application for benefits. In addition, the educational level of the typical person appealing a denial of disability benefits is significantly less than the level of the American population as a whole. They are also significantly more likely to have a diagnosed mental impairment. On top of this, most people do not even think of hiring a lawyer until they have received a denial on their initial appeal and have requested an administrative law judge hearing. Since most people are not aware of the Social Security disability standard, let alone how to prove it, this means that most applicants do not have sufficient medical evidence in the record at the time they retain a lawyer.

The strict time limits proposed will have the effect of creating a two tier system, discriminating against the poor who are less likely to have regular medical providers and who are far more likely to rely on public health care systems which are often notoriously slow in producing medical records. Indeed, for many poor people who have not had regular access to health care or whose doctors are not familiar with what is required to establish disability under the Social Security disability standard, it will be necessary to arrange for consultations or perform tests in order to establish that the disability standard is met, thus making it more difficult to provide adequate medical records within these new time limits.

The Administration seems to be motivated primarily by a desire to reduce the current high percentage of people winning benefits on appeal. Congress needs to examine these proposed changes before they go into effect so they do not thwart the very purpose of the disability program by denying benefits to people with proven disabilities simply because they could not afford regular medical care or were unable to navigate various procedural pitfalls. The final date for comments on the proposed rule is December 28, 2007.