Will Reinstating Disability Reconsideration Address Backlog?

By April 16, 2019 November 27th, 2019 Social Security Disability
Colored silhouettes of individuals, some with visible physical disabilities

The SSA has struggled with a record-high backlog of Social Security Disability (SSD) claims since 2008, when the Federal government did not adequately fund the Social Security Administration (SSA). These backlogs resulted in claimants waiting years to receive benefits. In Buffalo, claimants wait an average of 20 months between their hearing request date and their hearing.

In 2010, Congress significantly increased funding and the SSA hired additional staff and Administrative Law Judges (ALJs) to reduce backlog. However, the lasting impact of the Great Recession caused more disabled workers to apply for benefits. The government introduced the CARES Plan in 2016 “to eliminate the hearings backlog and reduce the average wait time to 270 days by the end of fiscal year (FY) 2021.” To support this plan, Congress “provided $290 million in special funding” between 2016 and 2019.

President Trump’s proposed budget, which included extensive cuts to SSD, threatened this plan in 2017. Kevin J. Bambury, attorney, Jeffrey Freedman Attorneys, PLLC and member of the National Association of Social Security Claimants Representatives (NOSSCR), is experienced in helping individuals obtain SSD and SSI benefits. He says, “This budget addresses SSD and SSI as though it were an entitlement program that is fraught with fraud. When in fact, this is a program workers pay into to insure if they become disabled they will have at least a modest income to support themselves and their families. And, according to Government Accountability Office in 2012, the error rate in the SSD program (The GOA does not use the term ‘fraud’) was .06 percent, for a program then serving around nine million people — most corporations would be pretty happy with that error rate.”

NOSSCR, formed in 1979 to provide support and educational programs for attorneys who handle SSD claims, issued a memo citing its objections to the budget. The proposed changes include reducing retroactive payments to six months rather than the current 12 before the protected filing date. This is projected to save an estimated $9.9 billion over 10 years.

“Applying for SSD benefits is a rigorous process which — combined with the current backlog of claims — means our clients typically wait two years for a decision on their benefits,” Bambury said. “During that period, they go without income, often losing their homes and delaying or foregoing medical treatment and medications. By the time they get that check for retroactive benefits, they are so far behind financially it’s just a drop in the bucket toward meeting their needs. Cutting that check in half is unconscionable.”

Many of the budget proposals, such as reinstating the reconsideration stage, creating an “expert” panel to recommend program changes, and putting new ALJs on probation for their first year of service, will slow down an already clogged system, according to Bambury.

“SSD provides a minimal income,” Bambury said. “And, over the past two years, the program has actually been decreasing.” In 2015, the number of disabled workers receiving benefits fell to 8.91 million, from 8.95 million. This was the lowest level since 2012. “There is no justification in taking basic, modest, yet necessary benefits away from people who have worked and paid into a system with the promise that if they needed them the benefits would be there,” Bambury said.

What is Disability Reconsideration?

If you live in the United States, you have a one in four chance of becoming disabled by the time you turn 67. The loss of income due to disability can be devastating to you and your family. That’s where Social Security Disability Insurance (SSDI) steps in.

The application process can be convoluted and the review of your claim can take many months. You also must remember that your doctor’s opinion about your disability is just an opinion. Your doctor’s medical evidence supports your claim. After you file your claim with SSA, your case is sent to a disability examiner. That examiner, working with a doctor, makes an initial decision on your claim. At this initial stage, almost 70% of claims are denied. Thus, you will likely need to file a request to have your claim reconsidered.

According to the SSA, “reconsideration is a complete review of your claim by someone who didn’t take part in the first decision. That person will look at all the evidence used to make the original decision, plus any new evidence” you submit. This is the first level of appeal after the SSA denies your SSDI or Supplemental Security Income (SSI) claim. It is followed by a hearing with an ALJ.

To begin this process, you need to file Form SSA-561, which is called the “Request for Reconsideration.” You have 60 days to complete the form and mail it in. Remember, this is 60 days from the date of the decision, not the date you received the decision. When you file your Request for Reconsideration, a different disability examiner reviews your case. They follow a similar process to that of your initial claim.

Reconsideration does not require the SSA to notify claimants of any missing documentation. At this stage, there is no face-to-face meeting between the decision-makers and the disabled person.

If your Request for Reconsideration is denied, you can request a hearing with an ALJ. In total, the process can take anywhere between six months and several years to complete. Consider hiring an experienced SSD attorney to help you with your claim. While they may not be able to speed up the process, they can help ensure there are no unnecessary delays.

Disability Reconsideration Removed

In 1999, the SSA instituted a pilot program in 10 states that eliminated reconsideration from the disability claim process. New York was fortunate to be one of those states.

To reduce backlogs and the length of time applicants wait for benefits, the SSA considered reinstating reconsideration in these states. SSA Commissioner Michael Astrue testified at a House Ways and Means Subcommittee meeting, saying reinstatement of reconsideration “would allow a significant number of cases to be allowed at reconsideration, resulting in earlier payment to those claimants and a reduction in the number of hearing requests.”

This is, in fact, contrary to data collected by the SSA. The reconsideration stage actually adds 103 days to the total average processing time. The reconsideration stage also drives up costs. Costs for staff, consultative physicians, review physicians, and processing of paperwork go up – with no foreseeable benefits.

Adding the reconsideration stage back into the disability application process in New York State would likely add to the workload and costs at local ODAR offices. The time claimants have to wait to receive benefits, and the financial stress they endure during the process would also increase.

Reconsideration Returns in New York

In January 2019, a change to the SSA’s disability insurance claim evaluation process went largely unnoticed: the return of reconsideration in five states. Reconsideration will be reinstated in an additional five states by mid-2020.

If you live in one of the 10 states (Alabama, Alaska, California, Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York and Pennsylvania), we encourage you to seek legal representation for your reconsideration appeal. Any error in paperwork can result in an extension of time between your claim and your final approval. It is best to have someone knowledgeable about the process helping you with the details.