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 • • • • • 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 • Congenital anomalies/birth defects • Endocrine, nutritional, metabolic diseases • Infectious and parasitic diseases • • • • • Developmental disorders Mental disorders Cancers, serious illnesses Respiratory disorders Often multiple comorbid impairments 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%) — Cashier-Checker / Cashier — Nurse Assistant — Fast-Foods Worker — Home Attendant — Laborer — Material Handler — Packager, Hand — Stock Clerk — Cleaner, Housekeeping — Janitor 7 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 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 Denials: 66.8% Awards: 33.2% 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 Denials: 71.4% Awards: 28.6% 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 Denials: 62.1% Awards: 37.9% 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 – 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 19 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, etc 22 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 Questions? Rebecca Vallas Deputy Director of Government Affairs NOSSCR Government Affairs Office [email protected] 202-550-9996 www.nosscr.org @rebeccavallas 24 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