Cheryl's Disability Blog

In yet another assault on the due process rights of disability claimants, the Social Security Administration has announced that, effective June 2013, experts can appear by phone. Expert testimony, it should be understood, can be critical to the outcome of a case.

In a recent Federal case, the court made clear that a medical expert had to appear in person unless the claimant had prior notice. Moreover, if the claimant objected, expert testimony by telephone could not occur. Edwards v. Astrue (D. Conn. Aug. 10, 2011). Other courts have issued similar rulings.

As SSA disingenuously stated “These final rules address concerns raised in Edwards and other cases.” (emphasis added). SSA’s idea of addressing the due process concerns raised by claimants and upheld by courts is simply to pass a rule that violates these rights on a broad scale.

Many of us who represent social security disability claimants (both SSD and SSI), including disability lawyers in Portland Oregon, were dismayed by the recent NPR story that portrayed claimants as greedy and unqualified for the benefits they obtained.

Now NPR has acknowledged the firestorm of criticism that followed a show that was incomplete and misleading at best.  The national association of social security representatives (NOSSCR), of which I am a member, sent an excellent rebuttal.  For NOSSCR’s full statement, go to http://nosscr.org/harmful-allegations-about-social-security-disability-programs-perpetuated-misleading-media-reports.

Here are the highlights:

• Increase in disability rolls?  This was an expected trend, predicted as far back as 1994, with two very clear factors: the aging baby boomers entering their high-disability years, and women who entered the workforce in the 1970s and 1980s that are now eligible to draw on their own earnings record when they become disabled.
• Standards for approval?  Eight former SSA Commissioners pointed out in a letter that the standard for disability approval is strict; the majority of applicants are not approved. Disability benefits are only a modest asset that helps beneficiaries live with dignity while unable to work.
• Lawyers getting rich?  Hardly.  Lawyers are regulated under the Social Security law and prevented from collecting any fee for their work unless they win.  Even then, a legal fee is limited to 25% of past-due benefits, or $6,000 – whichever is lower. In fact, the system unfortunately discourages lawyers from representing claimants who are hit with overpayments or whose benefits are terminated.
• Social Security benefits contributing to the deficit?  Wrong. SSDI is self-financed by payroll taxes (FICA) and SSI dollars come out of taxes raised, therefore not increasing the national debt. 

“The Social Security Disability Insurance program is an essential component of our American government system, intended to be a social safety net for American workers unable to perform job functions and support their families. These attacks are blatantly one-sided, untrue and threaten the modest benefits that are needed by so many. “

Add one more frustration to the experience of applying for social security disability – both SSDI and SSI – the length of time it takes to get a decision from the Appeals Council.

The process includes:

1)  Application:  typically in Portland, Oregon, a claimant will wait 4-6 months for a decision

2)  If denied, Request Reconsideration:  typically in Portland, Oregon, a claimant will wait 4-6 months for a decision

3)  If denied, Request a Hearing:  typically in Portland, Oregon, a claimant will wait 15 months for a hearing to be scheduled

4)  If Unfavorable decision, request Appeals Council Review:  typically, a claimant will wait 18-19 more months for a decision

5)  If review is denied; seek federal court review:  typically in Portland, Oregon, a claimant will wait 14-16 months for a decision.

What makes this horrendous wait even worse is that it doesn’t just happen to a few folks.  It happens to a lot of people who will ultimately win their cases, provided they can live that long.