The Role of the Representative in the Social Security Disability Determination Process Rebecca Vallas, Esq. Deputy Director of Government Affairs NOSSCR September 12, 2013

Agenda Who receives disability benefits? The application process Why do claimants seek representation? The role of the representative Why might claims denied at initial later be awarded at hearing? The representative fee structure Why a non-adversarial process? 2

Title II and Title XVI: Disabled Beneficiary Characteristics A diverse group, including people with: Severe illnesses: heart disease; end stage renal failure; advanced cancers Mental disabilities: significant intellectual disabilities; severe mental illness Severe physical disabilities: post-polio syndrome; severe cerebral palsy Sensory disabilities: deafness; blindness 4

Children Receiving SSI Congenital anomalies/birth defects Endocrine, nutritional, metabolic diseases Infectious and parasitic diseases Developmental disorders Mental disorders Cancers, serious illnesses Respiratory disorders Often multiple comorbid impairments 5

Title II and Title XVI: Disabled Beneficiary Health Most have poor health: – About 3 in 4 Title II and Title XVI disabled adult beneficiaries report fair, poor, or very poor health (73%) Many report worsening health: – About 2 in 5 Title II and Title XVI disabled adult beneficiaries report their health is “somewhat” or “much” worse compared to last year (42%) Many are terminally ill: – About 1 in 5 male SSDI beneficiaries and 1 in 7 female SSDI beneficiaries die within the first 5 years of receiving benefits 5

Title II and Title XVI: Disabled Beneficiary Age Title II disabled workers: – Average age of about 53 Title II disabled beneficiaries: – Just under 7 in 10 are over 50 – About 3 in 10 are over 60 Title XVI beneficiaries: – About half are over 50 6

Title II and Title XVI: Disabled Beneficiary Education & Prior Work Low educational attainment: – About 3 in 4 Title II and Title XVI disabled adult beneficiaries have a H.S. diploma or less (76%) – About 2 in 5 did not finish high school (40%) Typical past work: Unskilled (22%) or semi-skilled (40%) with moderate or light strength requirements (75%) 7 —Cashier-Checker / Cashier —Nurse Assistant —Fast-Foods Worker —Home Attendant —Laborer —Material Handler —Packager, Hand —Stock Clerk —Cleaner, Housekeeping —Janitor

Benefits are Modest, but Vital Average benefits are modest: – Title II, disabled beneficiaries – $1,060 / month (2011) – Title XVI, all beneficiaries –$520 / month (2012) Benefits comprise most/all of a majority of beneficiaries’ income – SSDI is the majority of income for over 70% of non- institutionalized beneficiaries. – For nearly half of non-institutionalized beneficiaries SSDI is over 90% of income – Over 57% of SSI beneficiaries have no other source of income 8

Effects of Title II and Title XVI Disability Benefits Reduce and alleviate poverty Prevent and reduce homelessness Prevent and reduce institutionalization Maintain health: – Access to Medicare and Medicaid – Help with out-of-pocket medical expenses Help secure access to essentials: housing, food, clothing, transportation Help cover the cost of caring for minor or adult child with a disability 9

SSDI, SSI Application Process Individual submits application for benefits Field office processes application, screens for technical criteria, sends to Disability Determination Service (DDS) for medical decision DDS requests medical evidence from providers; sends forms to providers to complete DDS may request Consultative Examination (CE) DDS makes initial decision about whether individual is disabled Average time: 3-5 months for initial decision Same definition of disability for SSDI, SSI 10

Application Process (cont) If denied, right to appeal – 60-day* deadline, from date of notice Reconsideration (in most states) ALJ hearing Year or longer delay before getting a hearing Additional levels of appeal Appeals Council (another year-plus delay) Federal Court 11

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How Many Claims Are Approved? Disabled worker applications awarded benefits, 2010 Awards: 33.2% Denials: 66.8% Source: Social Security Administration, Annual Statistical Report on the Social Security Disability Insurance Program, 2011, Table

How Many Claims Are Approved? Adult SSI applications awarded benefits, 2011 Awards: 28.6% Denials: 71.4% Source: Social Security Administration, Annual Statistical Report on the Supplemental Security Income Program, 2011, Table

How Many Claims Are Approved? Child SSI applications awarded benefits, 2011 Awards: 37.9% Denials: 62.1% Source: Social Security Administration, Annual Statistical Report on the Supplemental Security Income Program, 2011, Table

Why Do Claimants Seek Representation? SSA rules, regulations are highly technical Complex, multi-level process can be procedurally daunting Especially for individuals in poor health, with mental impairments, limited education Reason(s) for initial denial often a mystery to claimants with serious impairments Time of great / greatest anxiety; undeniably high stakes –Unable to work, no health insurance nowhere else to turn, family to support… last resort 16

The Role of the Representative Recognizing value of representation, Social Security Act requires SSA to inform denied claimants of options for legal help 42 U.S.C. § 406(c); 42 U.S.C. § 1383(d)(2)(D). Many ALJs send pro se claimants to seek representation Claimants with representation have significantly higher allowance rates –Estimates of “success gap” range from 15-30%* * See, e.g., Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 FORDHAM URB. L. J.37 (2010). 17

The Role of the Rep. (cont) Protects rights of claimant Explains process & standard to claimant Most representation occurs at ALJ hearing level; some assist at initial Identifies accurate, complete list and nature of impairments Fully develops the record – evidence often missing at initial level 18

The Role of the Rep. (cont) Marshals medical / other evidence of claimant’s entitlement to benefits –Medical records--Therapy notes –Test results--School records –Hospitalizations--Vocational evidence Prepares legal briefs for ALJ, analyzing facts of case vis a vis statutory standard –Sometimes sparing need for hearing Thoroughly examines Medical, Vocational Experts at ALJ hearing (very difficult for pro se claimants) Helps claimant stay focused at hearing 19

Reasons Claims Denied at Initial May Be Allowed at ALJ Level De novo examination of claim More accurate, complete list of impairments More complete medical, vocational record New treating sources First time SSA adjudicator sees clmt in-person Claimant health worsens / new impairments while waiting 1+ year for hearing Vocational, Medical Experts 20

Representative Fee Structure Fees at the administrative levels –Two mutually exclusive options (governed by 42 U.S.C. § 406(a)): Fee agreement (most common) –25% of back benefits, or $6,000 – whichever is smaller –Contingency basis Fee petition –Rep submits time records + fee request; adjudicator determines fee for each individual case Fees at federal court level –Governed by 42 U.S.C. § 406(b); set by Fed. Ct. judge 21

A Non-adversarial Process Longstanding view of Courts, Congress, SSA: claims process is informal, non-adversarial SSA’s role is to establish criteria & procedures; determine disability; pay benefits ALJ is neutral fact-finder / adjudicator; goal is to correctly determine disability under the statute SSA and claimant are not parties on opposite sides of legal dispute If claimant represented, rep serves as ally to ALJ, assists in developing record, etc 22

Proposals to Make Process “Adversarial” Proposal: “government representative” to oppose claim for benefits Would represent a radical shift Government Representation Project (GRP) –One-year pilot at 5 hearing sites (1982) –Lengthened processing times; no improvement in case preparation or decisionmaking –Costly: $1M / year for 5 hearing sites Compare: more than 140 hearing offices today –Later found unconstitutional & in violation of Social Security Act in Federal Court “Public defenders” ? 23

24 Questions? Rebecca Vallas Deputy Director of Government Affairs NOSSCR Government Affairs Office

How Has the Number of Children Receiving SSI Changed Since 2000 & Why? : number of children receiving SSI increased from 847,000 to 1.28 million Almost all of this increase is due to rise in number of low-income children during same period (see Fig. 3) –Number of children <200% FPL grew by 5.8 mil Share of low-income children who receive SSI: 3-4%, Rates of child SSI receipt vary with state unemployment levels* *Lynn Karoly and Paul Davies, “The Impact of the 1996 Childhood Disability Reforms: Evidence from Matched SIPP – SSA Data” (Ann Arbor, MI: University of Michigan Retirement Research Center, 2004). 25

Figure 3: Number of Children Receiving SSI and Number of Low-income Children, Sources: US Census Bureau, POV01 Tables from Historical Poverty Tables, Current Population Survey, Annual Social and Economic Supplement; and Table 3 in Social Security Administration, SSI Annual Statistical Reports. 26

What are the Projected Trends in Childhood SSI? SSA Actuaries and CBO project the number of children receiving SSI will level off over the next few years Number of applications and new awards declined Payments as a share of GDP also projected to decline –.062% .052% of GDP by 2022 Sources: Social Security Administration, Annual Report on the Supplemental Security Income Program, 2012 (Baltimore, MD: 2012); Congressional Budget Office, “Supplemental Security Income: March 2012 Baseline,” (Washington, DC: March 2012). 27