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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? - PowerPoint PPT Presentation
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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?
2
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
4
Children Receiving SSI
5
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
5
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
6
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%)
7
— 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
8
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
9
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
10
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
11
13
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.
14
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.
15
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.
16
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
16
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).
17
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
18
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
20
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
21
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
24
Questions?
Rebecca VallasDeputy Director of Government Affairs
NOSSCR Government Affairs [email protected]
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