Monday, March 9, 2015

How to Win a Social Security Disability Claim? Find The Right Judge.

Disability Claim Denied? Find the Right Judge

Nine percent of the judges who hear appeals grant benefits 90% of the time, costing taxpayers tens of billions.

To all parties involved in a trial, the slam of a gavel should indicate that justice has been served. Unfortunately, this is often not the case with Social Security Disability (SSDI and SSI) appeals. A system designed to serve society’s vulnerable has morphed into a benefit bonanza that costs taxpayers billions of dollars more than it should. The disability trust fund will become insolvent in 2016, and Congress would be wise to begin much needed reform.
A disability applicant whose claim is rejected during the Social Security Administration’s (SSA) first two stages ( before State Disability Determination Services)  can appeal the decision to administrative-law judges (ALJ). These judges must impartially balance the claims of the applicant against the interests of taxpayers.
Over the past decade judicial impartiality has declined significantly, as many administrative-law judges uncritically approve most claims. In 2008 judges on average approved about 70% of claims before them, according to the Social Security Administration. Nine percent of judges approved more than 90% of benefit requests that landed on their desks.
Do nine out of every 10 applicants appealing denied claims need societal support? There are reasons for skepticism. The data show that judges who are generous in granting benefits are consistently generous over time—which is suspicious, since each year they should hear a random set of new cases. The more discerning judges—those who award benefits less than 90% of the time—are more unpredictable from year to year.
(Photo: Getty Images/Illustration Works)
If the judges with award rates topping 90% are removed from the data, the rate of denial increases by 2%-3% annually. That amounts to 98,000 claims from 2005-11. Assuming an average lifetime award of $250,000, taxpayers would have saved $23 billion over those six years had the worst judges left the bench. If we lower the threshold to exclude judges with award rates north of 85%, these savings increase to $41 billion.
Former Social Security Commissioner Michael Astrue, who took office in 2007, made much-needed changes. Incompetent incumbents saw their influence diluted by new judges drawn from fresh candidate lists. Judicial decisions are now randomly reviewed to ensure that the court remains impartial and fair to taxpayers. Judges were limited to hearing 1,000 cases a year (the figure has since been lowered to 700), and individuals are allowed only one disability application at a time.
Mr. Astrue’s reforms have produced good results. In 2011 judges with award rates exceeding 90% heard a mere 4% of all cases, a 63.6% decline from 2008. But Mr. Astrue’s term expired in 2013, and these changes can easily be undone, either intentionally by future administrators, or unintentionally as bad habits slip back into the system.
His program to increase accountability and judicial turnover should be made permanent. Congress should also institute 15-year term limits for judges, who currently enjoy lifetime tenure, to ensure that fresh legal minds are joining the stale judicial aristocracy. A term of a decade and a half is long enough to insulate judges and prevent undue political influence.
The system faces a huge backlog, made worse by claimants who play adjudication roulette, filing and then withdrawing appeals in hopes of drawing a generous judge. Congress can limit this gamesmanship by allowing only one application per claimant in a three-year period. Because judges must marshal more documentation for a denial than an approval, they have an incentive to grant benefits to keep the system chugging along. The agency can fix this by further limiting the number of cases each judge must decide to 500 from 700.
The system is further complicated because even if a claimant has legal counsel, the judge must advocate on the claimant’s behalf. This dual role should be ended. Most claimants—85%—now have third-party representation. These professionals should be held responsible for getting supporting materials into court expeditiously and completely so the record can be closed in a timely manner.
Even under better legal rules, judges will still face rigid and outdated guidelines for granting benefits. The framework they must follow—known as the Medical Vocational Grid (known as The Listings)—is formulaic to the point of senselessness. For instance, the bar to benefits approval is lower for someone who doesn’t speak English, on the theory that it is difficult to find a job without the language. But that English rule is also applied to claimants from Puerto Rico, where the language of business is Spanish.
These guidelines (in The Listings) also do not give due consideration to actual labor market experience, dictating a looser approval standard for someone with only a high-school degree, even if the person has succeeded in the labor force for decades.
The framework (of The Listings) was developed in the late 1950s, for the previous generation’s workforce, and hasn’t been updated since 1978. Decades ago workers ages 50 or 55 might have been considered retiring, but this is no longer generally the case. Novel job-training programs also make it easier than ever for workers to move into new fields and make up for low levels of education, and new disability criteria would account for these changes.
These solutions would begin to deliver meaningful reform to Social Security disability awards. They can restore dignity and efficacy to a troubled system.
 (BY Mark J. Warshawsky And Ross A. Marchand
(Mr. Warshawsky is a visiting scholar at the Mercatus Center of George Mason University and a former member of the Social Security Advisory Board from 2006 to 2012. Mr. Marchand is a first-year economics graduate student at George Mason University.)

Brian Seel

Yet another data point to support the idea that the safety net should be completely privatized (with our dollars returned to us and taxes lowered so we may support and do the work).

The way you make calls in these cases is with people, in their community, sitting and talking to these people.  Don't make it a faceless claimant identified only by a social security number.  Let them sit in front of their neighbor, who not without compassion, also will get to know them, but also will know that there is a call center 2 miles down the road that is hiring.

The only incentive bureaucrats ever have is to keep the dollars rolling out the door.  It's how we got in this mess in the first place.  

Bill Wald

@Brian Seel Before FDR and SS the safety net was completely privatized. Many old people without a family who could/would care for them starved or froze to death in the winter. That's why SS was started.

These days many American would rather pay to have feral cats sterilized and released than to contribute cash money to help homeless and/or foster children. Many foster children in the US are functionally "homeless." So are many children theoretically with homes.

For the first million years, humans knew the difference between their food and their pets. These days, many Americans don't know the difference between food, pets, and children.

Brian Seel

@Bill Wald @Brian Seel Bill, there is a difference between a privatized safety net in a nation without two pennies to rub together (the Depression era America you speak of) and the wealthiest nation in the history of the world.  Point #1.

Point #2 would be that the system is already far more privatized than you realize.  I've done volunteer work for years with the poor.  The first question you always ask them is what state aid they are receiving.

Inevitably, when budgets are tight, Democratic governors turn off the spigot (they just don't tell you).  I saw many, many legitimate hard cases who the state lacked the werewithal to help and were it not for private charities would have frozen to death.

Point #3, the world of restricted charity you describe is precisely a function of two things.  One a government that claims to be caring for everyone (a lie).  Two, a world where the average taxpayer sends half their income to the government.

Change the paradigm, change the behavior.  
bruce miller

@Bill Wald @Brian Seel
Bill, this article is about fraud and abuse, not denying benefits to people who need them.
Aren't you even a little bit offended by the notion of a government that takes the cash of hard working Americans to dispense it to people who submit fraudulent disability claims?
Joseph Lorenzo

Stacked deck. So lets see: we have the plaintiff, his attorney, the judge who also acts as the plaintiff's attorney on one side and the taxpayer, who is not represented by anyone and not even there, on the other side. Why would anyone be surprised by such a high number of reversals? What I would like to know is how fraudulent were the cases whose appeal was denied?


Take from the Medicare payroll taxes whatever it is that actuaries say could be Social Security Disability's portion and use it to pay into private disability insurance plans, parceling out Social Security beneficiaries randomly to dozens of insurance companies; with no other revenues or "subsidies" for the program going to them.  I doubt they will long permit the present fraud that is taking place.
David Lenihan
This raises the question....Is it possible that judges are being bribed by attorneys to approve cases?  You decide.
Henry Lyczak
The whole 1-800-(I can get you a piece of something for nothing) lawyer circus has got to end.  It is facilitated by lack of adult supervision in our judiciary.  The law is what I interpret it to be based on my own biases.  Of course, Congress could help by writing laws that are clear and specific.  But then, they could not go back to campaign contributors and tell them each got what they paid for.
murray veroff
These disturbing stories indicate that members of congress must also be members of the press. The latter knows and discloses so much more than members of congress. Sad.
david berliner
A bounty system should be created to claw back false claims.
Gregg Larson
So much for an independent judiciary.
Robert Stewart
That people are willing to accept a disability income instead of working and advancing their incomes is blowback to Piketty's thesis.
Bill Wald
@Robert Stewart I know a middle aged person with a Ph.D  who has been on disability for 20 years because of arthritis but can walk their large dog every day.
Mark Weidmann
People seem to not realize that the disability system is an insurance system. All the beneficiaries pay into the disability system through reductions in their pay checks during their their working lives. When they become disabled from working, they are supposed to receive the disability benefits. Anybody working I. The system knows that far too many people who should get benefits are denied, then the other way around. There is nothing in this article that indicates otherwise.
Kevin Brandon
What a joke. The sheer magnitude of the increase in disability awards defies all probability.
Kenneth Gimbel
It would have been informative to learn what percentage of those applying for disability benefits were rejected thus prompting them to resort to administrative law review. Is the system set up to withhold benefits regardless of their merit?  Before insinuating the worst, the author should have presented a complete picture of the process.
Tom Taggart
@Kenneth Gimbel Peripheral contact with the system indicates to me that most applications are denied initially, but then granted on appeal. When the appeal is granted, applicants get "back pay" for about 18 months.  Typically, the attorney representing the applicant on appeal gets 20~25% of this award.
Tom Wallace
There can be no argument that this country needs a solid safety net for those that are less fortunate.
However, we now have a hammock instead of a safety net. That, in the end, removes the needed safety net as there are simply not enough resources to go around.
It's basic economics and very few are taught basic economics, or so it seems.
Tom W
Working today so others don't have to
Mark Weidmann
Problem is the field of economics is an intellectual disaster. Starting with false and empirically unverified assumptions about people and the world, the field of economics then reasons to incorrect, mistaken, and empirically uncertified conclusions. Your statement is in the same vein.
John Pound
@Mark Weidmann We have an $18T national debt & the SSA says disability program runs out of money in 2016.

Which part of that is empirically uncertified conclusion?
There is rampant fraud in both the Social Security and the Veterans' Administration disability programs and both systems need to be reformed.

That being said, I do believe there should be different standards based on education.  If you are a high school dropout capable of only manual labor, a back injury that would be a minor inconvenience to an office worker may be totally disabling to you.  
Charles Stehney
Detroit Free had a brief story and a link to the Michigan County Disability Database.

Rural Counties and Detroit's Wayne County are reporting higher disability than the national average.  This isn't disability.  This is economic parochialism with Judges trying to bring money back to their local citizens.  Milking Social Security until it collapses.
Congress should review the selection of these judges an establish more rigorous standards for disability claims. As a doctor, I see many people who are on disability and work as landscapers or for a family member to evade reporting earnings. There is too much fraud in the system
John Yungton
@JAIRO PUENTES  You could view Congress's salary as another form of disability payments, just from another purse pocket.
Mark Weidmann
The standards are already very rigorous.