Social Security Administration Seeks Shortcut Through Massive Disability Backlog

Some worry the new policy could cause claimants to miss out on a fair hearing.
Sen. James Lankford (R-Okla.) wants a hearing on the Social Security Administration's new plan for its disability backlog.
Sen. James Lankford (R-Okla.) wants a hearing on the Social Security Administration's new plan for its disability backlog.
Bill Clark/CQ Roll Call via Getty Images

WASHINGTON -- The Social Security Administration is quietly changing how it handles some appeals from Americans who've sought disability benefits.

The changes are part of an effort to chip away at an unprecedented backlog of unresolved claims, one that's left some people waiting more than 500 days for a decision.

"With over 1.1 million people waiting for a hearing decision, we are in the midst of a public service crisis," SSA spokesman Mark Hinkle said in an email. "For some people this results in a wait of over 17 months to receive a hearing decision, which we concede is unacceptable service."

If someone can't keep working because of a serious illness or injury, that person can apply for monthly benefits under the Social Security Disability Insurance program. Nearly 9 million disabled Americans receive federal disability benefits, which average $1,022 per month.

The government takes a hard look at new claims, however, and most are denied at first. Any subsequent appeals go to administrative law judges who have a measure of independence from the SSA. From there, dissatisfied claimants can try an appeals council and ultimately a federal court.

It's the later stages of appeals where the SSA has made changes. Nearly 30,000 disability claims per year get sent back down, or "remanded," to the appeals council or to administrative law judges for reconsideration. Now, these remands will instead be heard at the council level by administrative appeals judges who don't have the same independence from the SSA that administrative law judges do.

Another 10,000 or so cases being taken away from ALJs include situations where people have returned to work after receiving disability benefits and the agency believes they've been overpaid.

Administrative law judges work for government agencies, though they are supposed to be shielded from agency pressures by a federal law called the Administrative Procedure Act. The law creates a special hiring process and exempts ALJs from performance reviews and bonus evaluations.

The National Organization of Social Security Claimants' Representatives, a group that advocates for lawyers who represent people seeking disability benefits, is wary of the change.

"We're supportive of the agency taking steps with the resources they have to address the number of people waiting," Lisa Ekman, director of government affairs at NOSSCR, said in an interview. "But we're also very concerned about claimants getting a hearing in front of an administrative law judge that has qualified judicial independence as required by the Administrative Procedure Act."

Still, Ekman said the 1 million people waiting for the government to decide whether they qualify for benefits shouldn't be made to wait.

"The backlog and the wait are tremendously detrimental to claimants," Ekman said. "Claimants die while they're waiting to get a hearing. Claimants lose their homes while they're waiting to get a hearing."

The Association of Administrative Law Judges, meanwhile, is totally against the new policy, which they say is not even legal.

"They have launched an initiative that is not in the best interest of the American public," Marilyn Zahm, the association's president, said in an interview. "What the Social Security Administration plans to do now is to divert subsets of cases from hearings before ALJs to hearings before their own handpicked people."

Hinkle said the SSA owes it to the public to do whatever it can to reduce the wait time, and that administrative appeals judges can help with that.

"This strategy neither favors administrative appeals judges nor disfavors administrative law judges – it favors the many people waiting for a hearing decision," Hinkle said in an email.

The disability backlog has been made worse by the fact that the working-age population is getting older, and by the Great Recession of 2007-2009, which reduced work opportunities for people who could qualify for benefits.

As part of a general strategy to reduce the backlog, the agency has been trying to hire more administrative law judges. An internal audit published last year found that one factor contributing to the backlog was a decline in the number of people available for the job.

Sen. James Lankford, an Oklahoma Republican who believes the disability program is rife with fraud, will hold a hearing on the new appeals policy next week, his office said.

"These proposed changes break with decades of practice, run contrary to well established interpretation of the Social Security Act, and depart from the SSA's own regulations," Lankford said in a letter to the agency last month. "The possibility that such actions could invite large-scale, costly, and protracted litigation from affected claimants is very troubling."

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