Social Security Administration Proposes Changes
to Disability Determination Process

by Lisa Ruby, MPLP Public Benefits Attorney

The Social Security Administration (SSA) has proposed a series of changes in the disability review process that will drastically alter the way applications are currently handled. Some of the changes appear to be positive or at least neutral, while others are detrimental to applicants, especially those that do not have representation and/or are low-income without access to medical care. The proposed changes can be found at 70 Federal Register 43591 (July 27, 2005).

The changes were written largely in response to Sosa's ongoing reviews of its disability determination process and in response to three questions posed by President Bush to the Commissioner of Social Security in 2002:

1. Why does it take so long to make a disability decision?

2. Why can't people who are obviously disabled get a decision immediately?

3. Why would a disability program beneficiary risk attempting to work after having gone through such a long disability determination process and having been found to be disabled?

One change that could be positive for applicants who are clearly disabled is the Quick Disability Determination Process (QDDP). If a claim is identified as one involving a high degree of probability that the applicant is disabled and it appears that the claim can be easily verified, the claim will be referred to the QDDP. Once submitted the disability application will be reviewed by a medical expert and, if appropriate, approved within 20 days. This means that if your client meets a listing, he/she will be approved within 20 days. If the claimant does not clearly meet a listing after it is reviewed, it will go into the general pool of cases and reviewed by the State agency. One problematic aspect of this quick determination is how "high degree of probability" will be defined. At this point it is unclear. Applicants that do not have access to health care and therefore have little or no medical records will not be able to meet this standard. Social Security has not offered any indications of how they will assist these individuals.

The next change is the elimination of the reconsideration stage of review. Reconsideration is the first stage of appellate appeal if a claim is denied at the initial Disability Determination Service (DDS) level. Michigan is already one of 10 states that had this stage of review eliminated as part of a SSA prototype pilot, so this change will have little impact here. The proposed regulations state that if the claimant is dissatisfied with the initial determination on his/her claim at the DDS level, he/she can request that it be reviewed by a Reviewing Official (RO). The claimant will have 60 days to file a written request for review and submit any additional evidence. It is somewhat unclear what the RO has the authority to do. He/she decides if more evidence is necessary and may remand the case back to DDS. If the claimant does submit new evidence, the RO must consult with the, the Federal Expert Unit (FEU), so it is unclear who actually would make a decision at this point. The FEU will oversee a national network of medical and vocational experts and are available to all decision-makers for consultation at every level of the process.

If the claim is again denied at the RO level, the claimant can request an administrative hearing in front of an Administrative Law Judge (ALJ). This step currently exists in disability reviews but there are some important procedural changes proposed. SSA proposes to provide at least 45 days notice of a hearing, and that all evidence must be submitted 20 days before the hearing. It would be at the ALJ's discretion whether to accept or reject evidence after the 20 day deadline. The regulations do not define what criteria the ALJ would use in deciding whether or not to allow the evidence if it is not timely. There are no exceptions for unrepresented claimants who do find a lawyer before the deadline or if medical providers do not provide records in a timely fashion. All available evidence must be submitted, whether it is favorable or unfavorable to the disability claim. This is also troubling, as attorneys are not usually in the position of offering harmful evidence on behalf of their client.

The most contentious aspect of the proposed regulations is the elimination of the appeals council. After the ALJ decision is made, the claimant has no further administrative appeal options. Instead, a Decision Review Board (DRB) can select any ALJ decision for review. The claimant cannot request a review, but the government can. If the case is selected for review, the claimant and/or his attorney have very little input into the decision-making process. The DRB may ask for a brief but it cannot exceed three pages. The representative can request permission to file a brief, but it does not have to be granted. If a brief is filed without permission or invitation, it will not be considered. With the elimination of the Appeals Council, it is anticipated that there will be an onslaught of cases being filed in federal district court.

Proponents of the new regulations claim that they are being proposed in order to speed up the decision process for those who are obviously disabled and to decrease the waiting period for those claims that are not as clear. However, it seems that by adding the procedural requirements and limiting the admissibility of evidence, disabled individuals are more likely to be wrongfully denied benefits. That outcome is unacceptable in a process that is not supposed to be adversarial but focused on awarding benefits to those that qualify.