June 2008: Justice Delayed at the Social Security Administration

Washington Watch | June 2008
By Bruce Moyer

During my three decades in Washington, D.C., I have helped numerous clients testify before Congress on many issues—from pay raises for judges to payloads on airplanes. At each hearing, the witness has advocated with skill and earnestness the issue or underlying legislation at the heart of the hearing to an interested panel of lawmakers. But never has a client's testimony been as poignant or compelling as the testimony delivered last month before the Ways and Means Committee of the House of Representatives by Judge Rick Waitsman, the vice chair of the Federal Bar Association's Social Security Section.

Judge Waitsman is an administrative law judge with the Atlanta North Regional Office of the Social Security Administration (SSA). The House Ways and Means Committee invited him to testify about the huge and increasing backlog of appeals for disability benefits that remains before him and before roughly 1,000 other SSA administrative law judges. These appeals are from Americans who allege that they are too physically or mentally impaired to work and are seeking the Social Security benefits to which they are entitled—if found disabled—under federal law. The Atlanta North Office in which Judge Waitsman works is faced with one of the largest backlogs of appeals of any office in the country.

Today the backlog of Social Security disability appeals has grown to 755,000 cases from 311,000 in 2000. The average waiting time for an appeal hearing before an administrative law judge like Rick Waitsman is more than 500 days, compared with 258 days in 2000. Some appellants in some parts of the country may have to wait as long as three years before receiving a hearing.

Many of the 2.5 million men and women who file disability claims each year give up after initial denial of their claim or after denial of their request for reconsideration. But those who continue their appeal are entitled under the law to a de novo hearing before a federal administrative law judge like Rick Waitsman. Ultimately, more than half of those who have their case heard by an administrative law judge prevail in overturning their unfavorable decision and win their Social Security disability benefits—either as a result of their worsening medical condition, or submission of a more complete and convincing medical record, or representation by a lawyer, or the in-person nature of their hearing, or a combination of these factors.

In the meantime, however, the interminable wait for a hearing has taken its toll on thousands of claimants, most of whom lack adequate financial means of support in the interim. As Judge Waitsman testified to the House Ways and Means Committee, "During the painful wait, some appellants have lost their homes, others have been deprived of medical care and necessary medication, some have undergone bankruptcy, while others have suffered even the loss of custody of their children, and in perhaps the most tragic of cases, suffered from depression so severe that it has resulted in suicide." Yes, suicide. As Judge Waitsman explained, "Sadly, it is no longer unusual to review a disability claim at the hearing level in which the claimant has died from the disabling impairment or taken one's life from the stress of lack of resources, without the benefit of temporary assistance from the Social Security Administration."

In the face of such human tragedy, why is the SSA's backlog of appeals even allowed to exist? Largely because, over the past decade, the Social Security Administration has lacked sufficient funding from Congress to hire enough administrative law judges and support personnel to properly stay apace with the increasing numbers of appeals being filed, particularly as the baby boomer generation ages. "In the starkest and simplest of terms," Judge Waitsman explained to Congress, "we do not have the resources locally to handle the cases we are assigned. … The bottom line is that SSA sorely needs a substantial increase in its funding so that meaningful justice can be promptly and fairly delivered to the hundreds of thousands of disability claimants who await an answer
to their appeals."

The good news is that the SSA received more funding than the President requested last year, and Congress may repeat that step again this year. The agency plans to hire at least 175 new administrative law judges. Without those new hires, even longer waits and more heartbreak may result from the uncertainty of justice delayed.

Bruce Moyer is government relations counsel for the FBA.
© 2008 Bruce Moyer. All rights reserved.

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