The Disability Grapevine Online Newspaper: Issue #50

The Disability Grapevine Online World Newspaper

Monday, December 17, 2007

Year 7

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Title of Article: Changes to Social Security Disability: Detrimental to
people with disabilities?



Article:

By A Guest Commentator |





For decades, Congress, the United States Supreme Court, and the Social
Security Administration have recognized that the informality of SSA's
process is a critical aspect of the program. Creating unreasonable
procedural barriers to eligibility is inconsistent with Congress' intent to
keep the process informal and non-adversarial, and with the intent of the
program itself, which is to correctly determine eligibility for claimants,
awarding benefits if a person meets the statutory requirements.



On October 29, 2007, the Social Security Administration (SSA) published
proposed regulations that make significant changes to the SSA appeals
process, including hearings before administrative law judges (ALJs).
Comments must be submitted on or before December 28, 2007 to the
Commissioner of Social Security, P.O. Box 17703, Baltimore MD 21203.



While there are some notable potential improvements to the process, for
example, a 75-day hearing notice and retaining the claimant's right to
administrative review of an unfavorable ALJ decision, we also have serious
concerns, from a claimant's perspective, that many changes and new
requirements are unfair and limit the rights of people with disabilities.



While it is appropriate to deny a claim because the evidence establishes
that the individual does not meet the statutory definition of disability, it
is wrong to deny benefits to an otherwise eligible, disabled individual who
falls between procedural "cracks" or who is unable to submit relevant
evidence because of procedural limitations.



For people with disabilities, it is important that SSA improve its process
for making disability determinations. We strongly support efforts to reduce
unnecessary delays for claimants and to make the process more efficient, so
long as the steps proposed do not affect the fairness of the process to
determine a claimant's entitlement to benefits. Any changes to the process
must be measured against the extent to which they ensure fairness and
protect the rights of people with disabilities.



The most significant proposed change would close the record to new evidence
in two ways by:



* Restricting the submission of evidence at the ALJ and Review Board
(the replacement for the Appeals Council) regardless of its relevance to
proving a claimant's disability; and

* Limiting the scope of review and ability to submit new evidence after
a federal court or Review Board remands a case because of legal errors. To
exacerbate the adverse effect of these changes, claimants would be advised
to file new applications, potentially with detrimental consequences, and
restricted in their ability to reopen prior claims.



Is there reason to believe that the real purpose of the changes is to reduce
allowances? The proposed rule assumes that fewer claims would be allowed,
with a more than $1.5 billion reduction in benefit payments over the next
ten years. From our perspective as advocates for claimants with
disabilities, this is not acceptable.



1. The record essentially closes five days before the hearing with limited
exceptions. All new evidence would need to be filed five business days
before the ALJ hearing date. Evidence submitted after that date is
considered "late." The ALJ would have the discretion to ignore any evidence
submitted within five days of the hearing or later, regardless of its
relevance or importance, or that it was beyond the claimant's control to
obtain the evidence. Why is restricting the submission of evidence unfair to
people with disabilities?



* We believe that these proposed restrictions violate a claimant's
right under the Social Security Act (the Act). The Act guarantees the right
to a hearing with a decision based on evidence "adduced at the hearing." The
proposed changes eliminate the ALJ's duty to fully and fairly develop the
record. This duty is especially heightened for unrepresented claimants.

* The proposed changes will force individuals to file court cases
just to have SSA consider evidence that was improperly rejected earlier in
the process. The NPRM changes are more restrictive than the Act, which
allows a federal court to send a case back to SSA where there was a good
reason why new and material evidence was not submitted earlier.

* The proposed changes are inconsistent with the realities of
claimants obtaining representation. Many individuals seek and obtain
representation shortly before or even after the ALJ hearing date, since the
hearing is the first in-person contact with a disability adjudicator. Under
the NPRM, an ALJ would be able to exclude relevant evidence in this
situation.

* The proposed changes are inconsistent with the realities of
obtaining medical evidence. We strongly support early submission of evidence
but there are many legitimate reasons why it is not provided earlier. The
75-day hearing notice will be a great help but there is no requirement that
medical providers turn over records during that time period. Also, there are
cost or access restrictions, such as HIPAA requirements, that prevent the
ability to obtain evidence in a timely way.

* The proposed changes are inconsistent with the realities of
claimants' medical conditions. Medical conditions are not static. They may
worsen over time and/or diagnoses may change. Some conditions, e.g.,
multiple sclerosis, autoimmune disorders, or certain mental impairments, may
take longer to diagnose definitively. The severity of the impairment may
change, e.g., a seemingly minor cardiac impairment results in a heart
attack. It may take more time to fully understand and document the combined
effects of multiple impairments. Some claimants may be unable to accurately
describe their impairments or limitations either because they are in denial,
lack judgment, do not understand their disability, or the impairment by
definition makes this a difficult task. The purpose of the disability
determination process is to determine whether the claimant is eligible for
benefits to which he or she is statutorily entitled. Excluding evidence that
is relevant to the determination is inconsistent with the purpose of the
process.



2. Individuals who appeal erroneous ALJ decisions will be limited in new
evidence they can submit in a "remand" hearing.



* We support the proposed change that restores the claimant's right
to seek administrative review of an unfavorable ALJ decision. But that right
is severely curtailed by new and significant limits on review by the Review
Board (RB) or the federal courts. If the RB or court finds that the ALJ
decision was wrong and remands the case for a new ALJ hearing, the NPRM
limits the remand hearing to consideration of the claimant's condition on or
before the date of the original ALJ decision. This means that even if the
original impairment(s) worsened during the appeal, which could be months or
years, the individual could not submit new evidence of this change.

* Claimants with disabilities will be disadvantaged by this change.
The NPRM states that this change "will not unduly disadvantage claimants"
but our position is that it most certainly will. SSA says that a claimant
can file a new application if his or her condition worsens during the time
between the ALJ's first decision and the remand proceedings. However, a new
application, in many cases, is a poor and even disadvantageous substitute
for the appeal. For all claimants, benefits could be lost from the effective
date of the first application. Title II claimants would be particularly
harmed because they would need to complete a five-month waiting period for
cash benefits and Medicare benefits could be delayed because of the 24-month
Medicare waiting period and many Title II workers could be permanently
foreclosed from eligibility for benefits if their insured status had
expired.



* The proposed change can be interpreted as establishing
time-limited benefits. The language of the proposed regulation is ambiguous
and can be interpreted to mean that, in a remand proceeding, the individual
could only be found eligible for a time-limited period ending no later than
the date of the first ALJ decision. Under this interpretation, because they
would not be found to be disabled on an ongoing basis, claimants with
disabilities would: (1) not be protected by use of the medical improvement
standard; (2) would lose their automatic access to Medicaid and Medicare;
(3) would lose access to most SSI and Title II work incentives. This
interpretation must be rejected by SSA because of the serious repercussions.



* The proposed change is inconsistent with the Act and limits the
ability of the federal courts to remedy legal errors. Currently, if a case
is appealed to court and is remanded back to SSA, the court reverses and
vacates the first ALJ decision. Since there is no longer a final decision by
SSA, the claim remains "open" on remand. The proposed change would limit the
ALJ's ability on remand to consider new and material evidence, even if the
court orders SSA to consider such new evidence. SSA cannot limit the court's
authority on appeal to remedy errors in the first ALJ decision.



3. Forcing Individuals with Disabilities to File Multiple Applications Is
Neither Fair Nor Efficient. By closing the record to new evidence and
limiting the period that can be considered to determine eligibility,
claimants would unnecessarily be forced to file multiple applications. A
claimant will be required to file a new application for consideration of any
change in disability after the date of the original ALJ decision, even if
the change is related to the impairments considered in the prior
application. This is an onerous burden to place on claimants. Why would the
agency force an individual to file additional applications when the claim
for disability could be resolved by making the decision based on a complete
record?



* We are concerned that the impetus for these changes is a reduction in
allowances since the NPRM makes clear that closing the record is intended to
result in a $1.5 billion reduction in benefit payments over the next ten
years. Does this mean that SSA assumes that claimants will be confused and
discouraged and will not file new applications? Do the "savings" include
those claimants who file new applications and lose benefits from the
effective date of the first application or are permanently foreclosed from
eligibility? If so, this is a particularly inappropriate and harmful change.



* Claimants may jeopardize eligibility by reapplying. Requiring
claimants to file new applications simply to submit new evidence relevant to
their impairments may severely jeopardize, if not foreclose, eligibility for
benefits. Benefits could be lost from the effective date of the first
application, which in Title II cases can be as much as 12 months before the
application date. Workers who are eligible for Title II disability benefits
are particularly harmed. Cash benefits could be delayed because of the Title
II 5-month waiting period and Medicare benefits could be delayed because of
the 24-month Medicare waiting period.



* Eligibility may be foreclosed forever because of the Title II recency
of work test. Under this test, to be eligible for disability insurance
benefits, the worker must have worked 20 of the last 40 quarters to be
insured. This means that onset of disability must occur during the insured
status period, which usually ends 5 years (20 quarters) after work stops. If
the worker's insured status expired before the first ALJ's decision, the
worker may never be eligible when a new application is filed. The following
example describes the dilemma faced by individuals under the proposed
change.



Example: The claimant files for Title II benefits in January 2007,
based on a heart condition. The claimant's insured status expires December
31, 2007. The first ALJ decision is issued in January 2008, finding that the
claimant was not disabled before her insured status expired. One month
later, the claimant has a serious heart attack. After recuperating for
several months, she files a new application. The new application will be
denied because there is a final decision - the ALJ decision - that she was
not "disabled" prior to December 31, 2007.



* Under current procedures, if the claimant appeals to federal court
and asks for a remand based on new and material evidence that was not
available earlier, the court has the authority to remand the case to have
SSA consider the new evidence. On remand, the ALJ is able to find that the
later evidence shows that her original impairment was more serious and that
she in fact was disabled before her insured status expired. Under the NPRM,
the ALJ would be precluded from considering the new evidence and, if a new
application is filed, it likely would be denied



* Urging claimants to reapply is inconsistent with Congressional
intent. Previously, SSA notices misled claimants regarding the consequences
of reapplying instead of appealing. A 1990 law requires SSA to include clear
and specific language in notices describing the adverse consequences of
reapplying. More than 15 years after Congress acted on this problem, it is
troubling that the concept of reapplication is still imbedded in SSA's
thinking and used as a justification for preventing the consideration of all
evidence relevant to the claim.



* Requiring new applications is administratively inefficient and
will increase SSA's workload. The proposed change is administratively
inefficient because it would require SSA to handle even more applications at
a time when it otherwise expects an increase in filings and would cause
further congestion in the front end of the process. Many individuals, who
are unable to avail themselves of the online application process, will
require the personal involvement of SSA claims representatives. This is
particularly problematic at a time when the agency is faced with its lowest
staffing level in more than 30 years.



4. Individuals would be limited in their ability to reopen prior
applications. Exacerbating the problems with restrictions on submitting
evidence and limits on the period during which eligibility can be
determined, the NPRM severely limits the claimant's right to reopen prior
applications. Reopening a prior application can be very important for people
with disabilities who clearly meet the disability standard but were unable
to adequately articulate their claim in the first application, were unable
to obtain critical evidence, or have an impairment that is difficult to
diagnose, such as multiple sclerosis or certain mental impairments.



Reopening situations currently do not arise frequently, but when they do,
they usually have compelling fact patterns involving claimants who did not
understand the importance of appealing an unfavorable decision, often
claimants with mental impairments who repeatedly file new applications
instead of appealing. When they finally obtain representation on a
subsequent claim, new and material evidence is submitted that may establish
disability as of the earlier application. Reopening is discretionary and
cannot be required, but it can be used to right obvious wrongs.



This proposed change eliminates ALJ discretion to reopen an earlier decision
where new and material evidence shows that the claimant was disabled at an
earlier time. Under the NPRM, to assure that claimants cannot "circumvent"
the strict new limits for submitting evidence after the record is closed,
the NPRM eliminates "new and material evidence" as a basis for reopening a
decision by the ALJ or the Review Board. This is unfair for claimants in a
number of situations, such as: claimants who are not able to get a proper
diagnosis for a considerable period of time (multiple sclerosis, for
example); claimants who were unrepresented and whose cases were poorly
developed; claimants with mental impairments that prevent or inhibit their
ability to cooperate with development of claims; cases where physicians
refuse to provide medical records until unpaid bills are paid; and bankrupt
hospitals who are unable to provide records. The proposal also could result
in a total loss of eligibility if Title II disability insured status
previously expired.



5. Other Proposed Changes Make the Process Too Formal and Unfair to
Individuals. There are many other proposed changes, including new time
limits, which make the process overly complicated and legalistic. These
changes may well become procedural traps for claimants, especially those who
are unrepresented.



New time limits. Additional new time limits, beyond normal appeal deadlines,
would be established with no "good cause" extension including: (1) Objecting
to the time or place of the hearing (30 days after receiving the hearing
notice); (2) Objecting to the issues in the hearing notice (5 business days
before the hearing); (3) Requesting subpoenas for missing records (20 days
before the hearing); and (4) Filing brief to Review Board (with appeal or
within 10 days of filing).



1. Possible limits on issues before the ALJ. There is a new requirement
that the appeal to the ALJ must include a statement that lists the
"medically determinable impairments" preventing work. Does this limit the
impairments considered by the ALJ or will some ALJs use this requirement to
limit impairments that can be considered? Claimants should not be limited
only to those impairments listed on their appeal request. The claimant also
must object to issues in the hearing notice within 5 business days of the
hearing, with no extension. The current process is flexible and allows
raising objections "at the earliest possible opportunity." What happens if
the claimant obtains legal representation within 5 days of the hearing? Is
the representative precluded from raising issues? This is inconsistent with
due process.

2. Rescheduling hearings for "good cause." The NPRM deletes the criteria
in current regulations for circumstances when the ALJ will change the time
and/or place of the hearing and when the ALJ has the discretion to change
the time and/or place. The current "good cause" factors for have been
severely curtailed, placing nearly total discretion in the ALJ. Without
these criteria, will more hearings be dismissed inappropriately because the
claimant is unable to attend?

3. Inability to object to telephone hearings. The claimant will be
informed in the notice if the hearing is to be held in person, by video
teleconference or by telephone. For the first time, the ALJ is authorized to
direct the claimant to appear by telephone "under certain extraordinary
circumstances." There is no provision in the proposed rule to object to a
hearing scheduled to be held by telephone. An ALJ could determine that
"extraordinary circumstances" exist and hold a hearing by telephone without
allowing the claimant an opportunity to object. Claimants should be given
the right to object.

4. Dismissal of appeal for failure to appear at a prehearing or
posthearing conference. If neither the claimant nor the representative
appears at a prehearing or posthearing conference, the ALJ would have the
discretion to dismiss the appeal. Like current process, this is an extreme
penalty that should be reserved only if both the claimant and representative
miss the actual ALJ hearing without good cause. Dismissal on this basis
should not be left to the ALJ's discretion.

5. The contents of the appeal to the Review Board (RB). The appeal to the
RB must be in writing and the NPRM lists what "should" be included: a
written statement that identifies the ALJ's errors, explains why it should
be reversed or modified, and cites applicable law and specific facts in the
record. These requirements are very formal and legalistic, and assume that
the claimant is represented by an experienced legal representative. We are
concerned that the failure to raise issues in the appeal statement will be
deemed a waiver of the right to have them considered by the RB or that the
RB will give less consideration to appeals that do not include a statement
meeting these requirements.

6. Payment required for a copy of the record. Claimants would be
penalized for appealing to the RB by a new requirement to pay for requested
copies of the record or the hearing recording, unless there is a "good
reason" not to pay. This change may violate the Privacy Act which grants an
individual the right of access to his or her own records. The current
procedure should be retained which provides that the Appeals Council will
not charge for a duplicate hearing recording or a copy of the claims file.

7. Submitting evidence to the Review Board. In addition to the strict
limits for submitting new evidence to the RB, the NPRM requires that the
claimant "must submit" a statement with the additional evidence explaining
why he or she believes the strict criteria are met. Will this turn into a
trap for unrepresented claimants? Will the RB refuse to consider the
additional evidence if such a statement is not submitted? In addition, while
the claimant must meet strict limits for submitting new evidence under the
NPRM, the RB is free to obtain new evidence either by remanding the case to
the ALJ or by obtaining it on its own if it can be done "more quickly" and
would not "adversely affect" the claimant's rights. There is no further
explanation and there is no requirement that the RB proffer the new evidence
to the claimant before issuing a decision.



About the Author: Nancy Schorr is the Executive Director of NOSSCR, the
National Organization of Social Security Claimants Representation, an
organization committed to providing the highest quality of representation
and advocacy on behalf of people seeking Social Security Disability and
Supplemental Security Income.



Sections: Issues

Topics: Disability, Social Security Administration, U.S. Supreme Court

One Response to "Changes to Social Security Disability: Detrimental to
people with disabilities?"



1. > Editorial Questions Proposed Regulations Changing Hearing Rules
Says:

December 17th, 2007 at 10:55 am



For people with disabilities, it is important that SSA improve its
process for making disability determinations. We strongly support efforts to
reduce unnecessary delays for claimants and to make the process more
efficient, so long as the steps proposed do not affect the fairness of the
process to determine a claimant's entitlement to benefits. Any changes to
the process must be measured against the extent to which they ensure
fairness and protect the rights of people with disabilities.



DGV Source:
http://www.clarksvilleonline.com/2007/12/16/changes-to-social-security-disab
ility-detrimental-to-people-with-disabilities/

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