Transcript Document

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
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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
• Congenital
anomalies/birth defects
• Endocrine, nutritional,
metabolic diseases
• Infectious and parasitic
diseases
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Developmental disorders
Mental disorders
Cancers, serious illnesses
Respiratory disorders
Often multiple comorbid
impairments
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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%)
— Cashier-Checker / Cashier
— Nurse Assistant
— Fast-Foods Worker
— Home Attendant
— Laborer
— Material Handler
— Packager, Hand
— Stock Clerk
— Cleaner, Housekeeping
— Janitor
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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 noninstitutionalized 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
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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
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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
Denials: 66.8%
Awards: 33.2%
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
Denials: 71.4%
Awards: 28.6%
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
Denials: 62.1%
Awards: 37.9%
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
– Test results
– Hospitalizations
--Therapy notes
--School records
--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 hearing
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Reasons Claims Denied at Initial
May Be Allowed at ALJ Level
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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, etc
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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” ?
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Questions?
Rebecca Vallas
Deputy Director of Government Affairs
NOSSCR Government Affairs Office
[email protected]
202-550-9996
www.nosscr.org
@rebeccavallas
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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).
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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.
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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).
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