Golden Opportunities

Social Security Disability is a vital program. It provides basic support for folks who have become disabled and can’t work. But the disability program has itself become disabled. Many folks who apply for Social Security Disability are wrongfully denied. Some 50 to 60% of denials are reversed on appeal. And those appeals can take forever. Two year delays are not unusual. While people are waiting for their cases to be reviewed, they can’t work. They may lose their health insurance, their savings, and their homes. With us today are three brave Social Security judges who took it upon themselves to try to improve and streamline the system. And when they did, they were accused of insubordination by the Social Security Administration. It’s my pleasure to introduce Administrative Law Judges Edmund Round, Morley White, and Robert Isbell. I also have been asked to say that the opinions which will be expressed here today are those of the individuals, and definitely not of the Social Security Administration.

**All opinions are those of the individuals and not those of the Social Security agency**

Question: Let’s start out by talking a little about Social Security Disability in general. When is one eligible to receive disability benefits?

Answer: (Judge Round): There are two different types of disability. The first is Disability Insurance (Title II) that you pay into at the same time as you pay into Social Security. The second, Supplemental Security Income (SSI), is for people who are not working, or working in jobs not covered by Social Security.
The criteria for being disabled are the same in both situations: one is unable to work in any job (not just the one they have had in the past).  Generally, the older you are, the more liberal the definition of “inability to work” becomes. If one is 62 or over, however, they are simply eligible to retire.
Question: If someone thinks they might be eligible for Social Security Disability, what steps does one take?

Answer: (Judge Isbell): They should contact their local Social Security office. They will then meet with a claims representative who will start all the necessary paperwork, whether it be Title II or SSI. They work with the state disability office. The claimant may be referred to a panel of doctors for a physical examination and/or medical records are gathered. The office then makes an official determination.

If the claim is denied, the claimant may ask for reconsideration. The appeal is sent to another component of the agency that reviews the material and makes another decision.
If denied again, the claimant may make a final request to have a hearing with an administrative law judge from one of the four Offices of Hearing and Appeals—Cleveland, Columbus, Cincinnati, or Dayton.
The case is then put on the master docket and starts to be processed. The time, however, between the request for a hearing and the actual hearing is now up to about two years. This can cause numerous problems—someone who genuinely needs disability may require that long to receive it. On the other hand, people who do not need disability and are fighting the cessation of it are still collecting government dollars.

Question: That’s a huge delay. Why is there such a lag?

Answer: There are many, many reasons. First, there’s a shortage of staff—too few judges and not enough staff to support them. Part of this is due to the economy.
A new system was implemented that was supposed to improve the hearing process but it has only made things worse.
(Judge White): The agency tends to be very number-oriented. They receive a lot of applications and are trying to work through them very quickly at the field level, and therefore the hearings get backed up.
We are also operating under an archaic system that may have worked when the agency was founded but is problematic now. For example, there is no government representative at the hearing, meaning that there is no chance for a settlement—we have to hear the whole case for every case. The hearing is also closed to the public, so no one can be brought in informally to expedite the process.
Big problem: We don’t just hear the case and decide. Cases come to us without adequate preparation, without development of the medical and other evidence. So we first have to help develop the evidence, which can take many months.
(Judge Isbell): The current system also forces the judge to wear three different, and sometimes conflicting, hats:

1. Must protect the government’s interest, since there is no government representative.
2. Must make sure that the claimant is protected, has had the chance to develop a proper record of their disability, and understand that they have the right to legal representation and access to attorneys. Very often, they are not given information on attorneys prior to their hearing, and this delays the process yet again.
3. Be impartial.

Question: Is anything being done about these delays?

Answer: The Commissioner of Social Security, Jo Anne Bonhart, is well aware of the problem and has put together a plan (after talking to judges and others involved in Social Security) that is just beginning to be implemented.
Some of the changes include creating electronic case files, something that should be implemented by October 2005. They’d also like to have a federal employee involved in the first reconsideration appeal, and are making changes in the procedure on appeals.
These changes are very much a work in progress, and face several obstacles, including rumored congressional budget cuts next year.
Another obstacle is that there are many conflicting interests involved in the process.

Question: You three judges have made an effort to cut the delays.  What have you done?

Answer: We have begun issuing pre-hearing orders and assigned legal and clerical staff to work on the orders. It’s an effort to have the case preparation done before a hearing starts, and to streamline the overall process.

Question: Social Security came down on you for trying to streamline the process?

Answer: Yes, but we think it’s close to being resolved.

Question: Your fight with Social Security became an issue of judicial independence?

Answer: Yes. Here they were telling us how to conduct our hearings procedurally. The bigger concern: if they could do that, then they could tell us how to decide cases. That would violate an individual’s due process rights. Disabled persons have a right to a decision by an independent hearing officer.

Question: How does one deal with that tension?

Answer: The process needs to be streamlined, yes, but the integrity of due process and judicial independence must be retained. And that belief we will uphold regardless, and have stated that.
Our names have been in the paper a lot recently, since there is an action against us (charged with insubordination—no conclusion yet). But the agency doesn’t have the right, authority or power to interfere with our individual judgments.

Question: we still have a terrible mess.  What can our viewers do to help?

Answer: Contact your federal representatives and senators, especially Senator Voinovich.  Tell them:

• Don’t cut our budget. They’re threatening to do that, which would create longer delays.

• Make ALJ’s independent from the SSA.

• Streamline the process.

Social Security Disability is a critical safety net. But the safety net’s in tatters. My thanks to Judges Round, White, and Isbell for trying to make a positive difference. Now it’s your turn. Call your federal representatives and senators, especially Senator Voinovich. Their number is 202-224-3121. Call and tell them not to cut the Social Security budget, and to streamline the appeal process.

---Judge Robert. H. Isbell;
Judge Edmund Round;
Judge Morley White