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Social Security Rule Changes Will Harm Disabled Workers

  December 22, 2020 | By Samuel Morris and Jessica Wiseman, Law360

Two new rules from the Trump administration will make it harder for workers and other disabled individuals to collect Social Security disability insurance and supplemental security income benefits.

The first rule, which took effect Dec. 16, changes the disability appeals process by allowing internal agency lawyers who work for the Social Security Administration, or SSA, to conduct disability hearings that have traditionally been conducted by impartial, independent administrative law judges.

The second proposed rule changes the frequency at which certain individuals who collect benefits will be forced to prove their continuing disability to the agency, and will result in the wrongful termination of benefits for countless disabled individuals. It’s likely to go into effect prior to the 2021 change in administration.

Agency Attorneys to Conduct “Impartial” Hearings

In most cases, disability claims before the SSA are evaluated under a four-level review process: (1) initial determination; (2) reconsideration; (3) hearing before an administrative law judge; and (4) review before the Appeals Council. The first two levels of review are conducted by federal and state decision makers. If a claimant is not approved at one of the first two levels, they are provided the opportunity to present their case to an impartial, independent ALJ.

ALJs conduct de novo hearings on each case before them in-person or by video.[1] Hearings conducted at the ALJ level provide claimants and their attorneys with an opportunity to present evidence, make oral argument and submit written statements to a fair and unbiased decision maker. If a claim is denied by the ALJ, the claimant has the option of appealing the claim to the Appeals Council. The decision of the Appeals Council is binding unless a party files an action in federal district court.

The ALJs who currently hear appeals as part of the third step are not only impartial, but they are provided with specialized training. They go through a lengthy and competitive process before being hired. All ALJs are required to have at least seven years’ experience as a licensed attorney participating in or holding formal trials, hearings or litigation. They possess the skills and expertise required to preside over appeals hearings, question witnesses, evaluate credibility and determine whether claimants meet complex eligibility standards. The ALJs who hear disability claims preside over hundreds of hearings a year.

The rule provides administrative appeal judges, or AAJs, who work for the Appeals Council with the authority to hear the same third-step cases that are currently heard by independent ALJs. In contrast to ALJs, AAJs work directly for the SSA and are tasked with reviewing cases for compliance with existing policy. They review the written record created at the ALJ hearing level and make administrative decisions based on the documents already submitted.

The rule is problematic for obvious reasons. AAJs are not trained or qualified to conduct independent hearings, nor are they subject to the same qualification requirements as ALJs. They are employed, managed and evaluated by politically appointed administrators. AAJs are reliant on these administrators for promotions and bonuses, subject to the agency’s disciplinary policies, and can be more easily removed from their positions than ALJs.

It has also been argued by disability advocates that by giving AAJs the ability to conduct and hear disability cases, the SSA is merging the third and fourth levels of the disability review process. The SSA has not clarified during the rulemaking process how many hearings would be sent to AAJs, or whether there would be a threshold or criteria used to determine how many cases or what cases are sent to AAJs.

Such a merger could effectively eliminate independent review and subject the entire process to agency performance appraisal. A merger could also increase the likelihood of claimants being forced to appeal decisions directly to the federal district courts.

The SSA has defended the rule by stating that it will increase the adjudicative capacity of the agency and allow it to issue a higher volume of timely decisions. As of November 2019, according to the SSA, pending applicants have waited from 8.5 to 20 months for a hearing. However, as critics of the proposed rule have pointed out, the backlog on wait times was actually cut in half between 2016 and 2019 without the use of AAJs.

The SSA’s practice of using ALJs to conduct independent hearings derives from the 1946 passage of the Administrative Procedure Act. The act was created because Congress was concerned with the ability of regular agency employees like AAJs to fairly evaluate decisions issued by their employer.

The use of independent ALJs ensures that claimants have the right to a neutral and impartial arbiter of fact. AAJs, who work directly for the SSA, will not be independent or isolated from the political pressure that is provided to ALJs under the Administrative Procedure Act. It is apparent that the rule will erode due process protections for individuals who apply for Social Security disability insurance and supplemental security income benefits.

Increasing the Frequency of Disability Reviews

The second rule change proposes and increase in the frequency of continuing disability reviews, or CDRs.

The SSA conducts CDRs to determine whether a beneficiary who is receiving Social Security disability insurance and supplemental security income benefits continues to meet eligibility criteria for the program in which they are enrolled. If the SSA determines that the beneficiary has medically improved since initially being awarded benefits, those benefits are terminated.

The SSA currently conducts CDRs between six months and seven years of an initial finding of disability. The agency categorizes individuals based on their medical condition and whether it is likely to improve. Under the current system, there are three categories:

  • Medical improvement expected, which requires a CDR every six to 18 months;
  • Medical improvement possible, which requires a CDR at least once every three years; and
  • Medical improvement not expected, which requires a CDR every five to seven years.

The proposed rule adds a fourth category — medical improvement likely — which would require a CDR every two years. The new rule also revises the frequency of review for the “medical improvement not expected” category to once every six years, and changes the method by which the individuals are assigned to each of the categories.

Each CDR requires a disabled beneficiary to fill out and submit a complicated 15-page form. The form asks beneficiaries to describe in detailed essay format their medical treatment, daily activities, use of assistive devices, etc. CDRs also often require beneficiaries to pay for medical records and make additional medical appointments.

If the form is not filled out correctly or in enough detail, or if medical records do not sufficiently reflect a continuing disability, beneficiaries who remain disabled face the unjust termination of benefits.

Beneficiaries who are provided with legal assistance during the CDR are advantaged and have higher approval rates than unrepresented individuals. However, attorneys are not financially incentivized to provide assistance to beneficiaries undergoing CDRs, as statutory fees are typically not available for this type of work.

Most beneficiaries, who are already economically disadvantaged, are thus forced to either pay out of pocket for legal assistance or to go without during the CDR process.

The SSA has argued that the new rule will increase workforce participation. However, as the National Organization of Social Security Claimants’ Representatives, or NOSSCR, pointed out in its comment on the regulation,[2] out of the 1.3 million CDRs initiated by the agency in 2018, only 45,285 terminations of disabled workers for medical improvement occurred. In 2015, 71.6% of the individuals who appealed the cessation of their benefits due to medical improvement had the denial of benefits overturned on appeal.

The SSA has also argued that the rule would save the federal government almost $2 billion over the course of 10 years. As noted in the comment submitted by the NOSSCR, 20% of disabled workers and 30% of supplemental security income recipients whose benefits were terminated for medical improvement received benefits again within eight years after reapplying for benefits.

The costs of supporting the many individuals whose benefits are wrongfully terminated following CDRs are offset to other federal, state and local programs that serve low-income individuals such as the Supplemental Nutrition Assistance Program, Temporary Assistance for Needy Families, the Special Supplemental Nutrition Program for Women, Infants and Children, etc.

The beneficiaries who are forced to undergo these reviews have already been found by the SSA to suffer from one or more physical or mental impairments that are severe enough to prevent them from being able to work. Passage of the rule will not further any of the agency’s goals. It simply makes it more likely that a greater number of individuals who are disabled will wrongfully lose their benefits.

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