Monday, October 28, 2013

SocialNsecurity Introduction

This is not another “how to” book about filing for Social Security disability benefits. This book is about how the system works. It will even offer an explanation of why the system does not always work. This book concerns the nature of the Social Security Disability Determination process.
If you are a social security claimant or an attorney/representative this book will make it difficult for you to lose a case. If you are a newly appointed Administrative Law Judge (ALJ) this book will offer some insight into the pitfalls that are ahead of you and explain partially why you need protection from the Social Security Commissioner and his minions. 
If you are a Social Security recipient receiving benefits and you receive an overpayment notice from the Social security Administration, this book will ensure that you know what to say and what to do to ensure that your benefits continue without repayment or charge-backs. Written by a veteran Social Security Judge this book will make the Social Security Disability Determination Process work for you. In so doing, you will make the Social Security bureaucracy work with you instead of against you. This is an insider’s guide to the Social Security Disability Process.
A very old maxim of the law says that he who comes to the law has a wolf by the ears. It may just as well bite you as your adversary. That expression applies equally to the Social Security Disability Determination Process. It is a massive system of confusing and complex laws, rules, and regulations. Should you enter this maze however there is no reason to abandon hope. If you understand the nature of the process and how it is intended to work, the rules and regulations will work for you.
The process is time consuming. Processing times are getting longer from date of application to a final determination concerning benefits. One must be patient and allow the system to work. Every case has a beginning and an end. If you digest the principles outlined in this book, you will always be destined for a happy ending. The date your disability began is the onset date. Once you establish that, it does not matter how long it takes the process to run its course. You will be entitled to get paid retroactive benefits from that date to the date you receive your favorable determination. These are rightly called “past due” benefits. You will be paid past due benefits for the time you waited.
Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are the two largest Federal assistance programs that provide financial support to those with disabilities. To qualify for benefits, you must meet specific medical criteria outlined by the SSA. Social Security Disability Insurance (SSDI) offers benefits to disabled people who are “insured.” This means that you have paid Social Security taxes and possess enough work credits. Supplemental Security Income (SSI), however, pays benefits to individuals and families on the basis of financial need. SSI is welfare.
After receiving your application for benefits, the Social Security Administration (SSA) must decide whether you meet the “definition of disability.” The SSA will gather medical records about your condition and, if necessary, seek other information about your employment history. Usually, applications are denied because of insufficient medical evidence, not enough work credits (SSDI), or financial ineligibility (SSI).
The government makes the application process complicated and extremely confusing. Many claims are denied at the Initial level or the Reconsideration level. After being denied for the first time, many people become discouraged and give up. But, people who appeal their denials and seek expert assistance greatly improve their chances of receiving benefits. Consider this book a form of expert assistance. Claimants who are represented by attorneys tend to be more successful than those who apply on their own. Most representatives will take your case on a contingency fee basis. That means they collect a fee only if you are awarded benefits. Whether the representative gets paid is contingent on whether you win your case.
The cardinal rule in the Social Security Disability Evaluation Process is to appeal everything. Do not take no for an answer. The only claimant who does not win his case and receive benefits is the one who does not appeal to a high enough level. An attorney or a paralegal representative is not necessary to file an appeal. It is quite simple. If you can read and write, you can file an appeal. Anyone with a high school education can do it. It is easier than applying for a credit card. The appeal form is a one page standard government form. It does not have to be typed. All you have to do is fill in the blanks.
The appeal period is 60 days. It is the same at every level of the review process. Whether you receive an initial determination denial or a reconsideration denial, an ALJ decision or an Appeals Council Determination, the deadline for an appeal is 60 days from receipt of the denial letter. The SSA will presume that you received the denial 5 days after the date the letter was mailed.
Social Security Disability hearings are not trials. They are more in the nature of fact finding inquiries. They are presided over by an administrative law judge (ALJ), who is trained in the law. At a hearing only one side of the case is present and represented by an attorney or a paralegal. That is the claimant’s side.
If only one side of a controversy is present for the hearing, then why does the claimant need to have a judge presiding? When the Government wants to win a case, Congress designs a system that provides it with an advantage. In Immigration Hearings, the Government is represented by an attorney. When the Government is a party to a hearing before the Supreme Court, it is represented by the Solicitor General. In any other federal judicial forum where the Government has an interest, the Attorney General will ensure that the Government is adequately represented.
In Social Security Disability hearings the Government is not represented. The Government is not even present. That is probably because the system was designed to give the claimant an advantage. The case is the claimant’s case, to win or to lose. A judge is not needed to collect the medical records and listen to testimony that is not really cross-examined. The presiding officer is forced to accept the claimant’s testimony, no matter how farfetched it may be. The only evidence available to impeach the testimony of the witnesses is the evidence that the claimant provides. This could hardly be considered cross-examination.
In American administrative law, ALJs are Article I judges, and are not Article III judges under the U.S. Constitution. Unlike Article III judges, Article I judges are not confirmed by the Senate. The Administrative Procedures Act (APA) is designed to guarantee the decisional independence of ALJs. They have absolute immunity from liability for their judicial acts and are triers of fact "insulated from political influence". Social Security Administrative law judges are not supposed to be responsible to, or subject to the direct supervision or direction of SSA staff employees in the performance of their functions for the agency.
In some SSA Hearing Offices, ALJs dress like lawyers in business suits, share offices, and hold hearings in ordinary conference rooms. In other hearing offices, ALJs wear robes like Article III judges, are referred to as "Honorable" and "Your Honor", work in private chambers, hold hearings in special "hearing rooms" that look like small courtrooms, and have court clerks who record the testimony and keep track of the evidence.
SSA ALJs are not in control of their own dockets. They are told how many cases to schedule and which cases to schedule for a hearing. Each hearing office has a staff member who is in charge of scheduling the cases. This person may be little more than a high school graduate. There may be friction between this person and the ALJ. The judges resent being ordered around by a high school graduate. The friction has become so acute that the ALJs’ Union (AALJ) has tried to separate from the SSA and form an independent corps of judges. (See Appendix C)
SSA ALJs do not write their own decisions. They hold hearings and decide whether to pay or not to pay the claim. The decision is written by a staff writer who may not be a lawyer. The writer simply chooses which of the standard paragraphs in the SSA computer responds to each of the claimant’s allegations of symptoms and puts them in the decision. All of the parts of the decision are already written and are stored in the SSA computer. The ALJ earning $162,000.00 to $165,000.00 a year and the decision writer earning $30,000.00 They simply have to decide which and how many paragraphs to incorporate into the final decision. This function could be easily performed by a GS-9 staff attorney earning about $45,000.00 a year. This would represent a savings of about $147,000.00 a year for each ALJ. Multiplying that by 1200 ALJs would yield a savings of $176,200,000.00 a year, a significant savings to the taxpayers. ALJ and staff salaries represent a significant portion of the SSA’s budget. (See Appendix C,D, and J)
Continuing to pay ALJs and their support staffs exorbitant salaries when the statistics prove that they make the wrong decision nine out of ten times is not cost beneficial. The job could be done cheaper, faster, and more accurately by GS-9 staff lawyers. Moreover to reward such inaccurate decision making with a lifetime retirement of 80% of the highest salary would be tantamount to dereliction and adding insult to injury.
If Congress does nothing to correct this, it will continue to drain SSA resources and impose a substantial burden on the federal budget and the citizens of the United States. Replacing the ALJs with staff attorneys would result in higher productivity, shorter processing times, and improved public service.
Additional savings would result from the elimination of needless medical tests and procedures designed to assist ALJs who are too timid to make a final decision in the case. Some ALJs want a doctor to tell them whether the claimant is disabled. The costs of these discretionary medical procedures and examinations could easily run into millions of dollars a year.
In a trial there are usually two sides to a controversy. Each side is required to be present but may or may not be represented. A judge acts as referee to ensure that the rules of evidence and procedure are followed. There may or may not be a jury to determine the facts.
In a Social Security hearing only one side is present; that is the claimant, and his or her representative. The case is against the Government, but the Government is not present. Neither is the Government represented. That is because the system was designed to ensure that the claimant wins. After all, he is only asking for what is rightfully his. He has a social contract with the Government. He has paid his premiums in the form of payroll taxes and he is fully insured. Instead of honoring its obligations under the contract the Government first tries to delay or deny the claim. This is just plain bad faith.
Part of the problem is that the ALJs have become gate-keepers. They delay or deny claimants their legitimate benefits. When a claimant appears before an ALJ, he is already a two-time loser. His application for benefits has been denied twice by the State Disability Determination Service (DDS). The DDS decision makers are not lawyers, and usually not even doctors. They are government bureaucrats similar to insurance claims adjusters.
Whether you get paid early in the process depends primarily on whether you get assigned the right ALJ. The most extreme types of ALJs occupy both ends of the spectrum. There are some who will reverse and grant benefits to 200 or more claimants a month without holding a hearing. They make what are called “on-the-record” decisions. (See Appendix B)
Then there are the ALJs who treat every case as a Dred Scott Decision. They over litigate the case. If they find any issue that was not disposed of by the DDS, they will declare that the case is not ripe for review and not ready for a hearing before an ALJ. Then they will remand the case to the DDS for a finding on that issue. Such a maneuver can add more than 6 months to the already long processing time. Or they might decide that the most recent medical examinations in the record are over one year old and order that you be examined again before scheduling a hearing. Both types of ALJs may even exist in the same hearing office.
The approval rates among ALJs can be quite arbitrary. One ALJ might reverse 9 out of 10 cases and another might deny 9 out of 10 cases. It all depends on the luck of the draw.
There is a practice called “Paying Down The Back Log”. This is where a judge just reverses every case on his docket and grants benefits to the claimant. Some ALJs have been known to do this with no regard at all for the merits of the case. Judges have been known to pay 200 cases or more on-the –record in this manner. Sometimes the Commissioner will take action to stop them. Other times he does not. (See Appendix B)
Those ALJs are the exception and not the rule. However, there are other ALJs who see this type of behavior and emulate it on a smaller scale. Rather than pay 200 or more case “on-the-record” without holding a hearing, they will hold hearing and pay 75 to 100 or more cases per month. The hearings are very brief. Some may last for no more than 10 minutes or so. Then the ALJ will issue a favorable decision.
These ALJs are irresponsible, but they are not the worst. At least, deserving claimants are getting the benefits they deserve. Not all of them might be genuinely disabled, but the majority probably deserve benefits.
The worst ALJs will follow the same pattern, but they will deny the majority of the cases. They simply want to clear their docket. In the process, they deny a lot of deserving claimants.
Your chances of being granted benefits early in the process will be greatly increased if your case is assigned to a traveling judge or to a judge who is an officer in the judges’ union, the Association of Administrative Law Judges (AALJ). The AALJ is supposed to represent the ALJs in bargaining with the SSA Commissioner and management. One would have to wonder why an ALJ needs a union to protect him from his so-called bosses, the SSA Commissioner and his staff.
Nevertheless there is a union. It is International Federation of Professional and Technical Engineers, AFL-CIO and CLC, Judicial Council 1. When an ALJ joins he receives a card with his membership number and he is obligated to pay $39.00 a month as dues for 20 years. I have never heard of the Union doing anything for any ALJ in a management dispute unless the ALJ has already gone out and purchased malpractice insurance. How many real judges need malpractice insurance?
ALJs that are union officers are not counted as a whole judge. They are 25% of an ALJ and are not required to hear as many cases per month as a regular ALJ. ALJs are given a quota of 45-55 decisions per month to issue, however the union ALJs are only expected to decide 10-13 cases per month. And some do not even do that. ALJs who are union officers or regional representatives spend much of their time writing emails to each other, holding meetings, fighting over election results, or entertaining lobbyists who have been hired to persuade Congress to grant ALJs a retirement package that is equal to 80% of the highest salary they earned while working. That means they would get a lifetime retirement of 80% of their salary regardless of how many years they worked.
These union judges do not have their minds on hearing cases. Their minds are on other matters. They are not really concerned about the claimants or the back log of cases. They tend to grant all or only a few cases. Many of their cases are reversed and remanded on appeal. Their cases must be heard again by another ALJ.
Since traveling ALJs are essentially on vacation, they do not usually thoroughly review the case record before a hearing. Also, they want to get the hearing over as soon as possible so they can go sightseeing or visit their relatives living in the local area. Most of their cases must be decided again by a judge in the local office.
ALJs from New York fly to California to hold hearings. Judges from California fly to New York, Georgia or Florida to hold hearings. The same applies to judges flying to the Gulf Coast or to the mid-west. Only Regional Chief Judges are allowed to fly to Hawaii. This would probably be a so-called inspection trip.
Regional Chief Judges hold so few hearings that some carry a list of sample questions in their pocket to use during the hearing. These cases are almost always appealed and heard again. So, a claimant would be lucky to have a hearing scheduled before a traveling ALJ or a union officer.
If ALJs are not replaced by staff attorneys, additional fat could be wrung out of the SSA budget by eliminating ALJ travel to other hearing offices.  Some ALJs will routinely order more medical examinations of the claimant before scheduling the case for a hearing. Others will wait until after the hearing and then send the claimant out for more medical exams. In many cases ALJs spend over $10 thousand dollars on expensive medical tests and procedures when the claimant will probably not collect that much money in benefits if the case had been granted without a hearing.
These practices are not cost beneficial. They are time consuming. They are extremely costly and psychologically damaging to the claimants and the disability program. Often times the claimant will die waiting for a final decision. One may wonder if this is the intent of the delay and deny strategy.
ALJs, like most bureaucrats, are jealous of their turf, and protective of their job security. In the past many have been reprimanded for granting too many benefits. They are subtly indoctrinated to deny as many claims as possible. They even try to talk claimants out of their benefits. This happens when a claimant is persuaded to accept a later date of onset of benefits, called the alleged onset of disability (AOD). In some cases a claimant may even take back an allegation of a symptom or an impairment in exchange for a guarantee that the ALJ will grant benefits for another disabling condition.
The ALJs sometimes see themselves as saving the Government money when they compromise claims. ALJs actually negotiate with claimants in order to reach a decision that the ALJ can live with. Some ALJs find it hard to grant a claimant benefits with an AOD so far into the past that the claimant will undoubtedly collect $25,000 to $30,000 in past-due benefits.
Concerning attorneys, the SSA will withhold 25% of your past-due benefits to pay attorney or other representative. A successful claimant will never see these benefits. This way, the claimant does not feel that he has paid for an attorney. No money has actually come out of his pocket. It all came from the Government.
 Some attorneys may even ask for half the past-due benefits arguing that the case was particularly difficult and time consuming.  All of these considerations and others have contributed to creating a very large back-log of Social Security Disability claims. Processing times are getting longer. Sometimes a claimant might have to wait over five years to get a final decision. Claimants may even die from disabling symptoms while waiting for a decision. There is often little compassion from ALJs and the Social Security Administration.
This book will not change that. However, if you follow the principles outlined in this book, you will almost guarantee that at the end of the process you will receive a big fat check. It will not matter how long the process takes, because you will get paid for the time it took to process the claim. In that case it will be worth the wait. To apply for Social Security Disability benefits, you must contact the Social Security Administration by phone, submit an application online or visit your local Social Security office.
Once you complete your initial application, you will be notified of a decision within three to five months.  However, processing times may vary considerably from state to state or from Hearing Office to Hearing Office. You can speed up the application process, if you gather all your medical records in advance and fill out all SSA forms correctly.  If you do not have access to your medical records or do not fill out the application properly, you may have to wait many months for a decision.
The framers of the Constitution began with these words:
WE, the people of the United States, in order to form a more perfect Union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and ensure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the Unites States of America. (see Preamble to U S Constitution.) SocialNsecurity does not promote the general welfare.



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