Proposed Social Security Changes Could Terminate Benefits for Thousands in PA – NPLS Ready to Help with New DAP Program
In 1981, the Social Security Administration (SSA) increased the frequency of continuing disability reviews (CDRs) for SSI and SSDI recipients to every three years. SSA claimed that they were only trying to manage costs of the program by making sure that people who were not disabled were terminated from the program at appropriate times. Public outcry ensued, and Congress passed the Social Security Disability Benefits Reform Act of 1984 (1984 Law). Congress explained that the increased frequency of disability reviews had led to the “erroneous termination of benefits.” In other words, the increased frequency of reviews led to people who were still disabled to be kicked out of the program. Claimants lose CDRs when they are unable to comply with burdensome procedures and jump through bureaucratic hoops, often because of their disabilities. Social Security acquiesced, implementing rules in 1986 that scheduled recipients for reviews approximately every one, three, or seven years, depending on the specific facts of the medical evidence in a given case.
Social Security still faces rising costs. The Social Security Administration (SSA) admits these costs correlate most with raw population growth, not an increase in the percentage of the population who are disabled. Although the percentage of people receiving SSI or SSDI has decreased since 1992, the costs of SSI and SSDI have skyrocketed. Congress has not changed the definition of medical disability under the Social Security Act, yet Congress also has not provided the funding needed to keep up with population growth. The SSA and its employees operate under increasing pressure to cut costs. In an anonymous survey, multiple Social Security adjudicators admitted that are unable to read every page in a claimant’s file because of the tremendous caseload they face, which allows them only a few hours to review hundreds or thousands of pages of medical records, conduct a hearing, and issue a decision.
Already, in the United States, “criteria for disability benefits is one of the most restrictive in the developed world.” To solve its financial problems, the SSA recently embarked on an escalating series of actions to make it harder to get and keep benefits. In 2015, the SSA implemented the All-Evidence Rule, which requires claimant representatives to submit evidence which harms the claimant’s case. In 2017, the SSA repealed the treating source rule, a longstanding rule that required ALJs, who are laypeople with no medical training, to afford a certain level of deference to the medical professionals who treated disability claimants. In 2019, the SSA repealed protections for people suffering from obesity, freeing adjudicators to deny disability on the grounds that difficulty losing weight or sticking to a diet constituted noncompliance.
Now, the SSA proposes to mimic the rules implemented in the early 1980s, except instead of every three years, they propose to subject many recipients to review every two years. In 2017, 361,250 Pennsylvanians received SSI. Many would qualify for help by legal services organizations like North Penn Legal Services because SSI requires compliance with income and resource limits. Claimants undergoing CDRs are disadvantaged by the lack of available legal representation. Private attorneys generally do not represent clients undergoing CDRs because there is no possibility of compensation from a lump sum of back benefits. The rule proposes to put “certain mental health conditions including anxiety-related disorders, depressive, bipolar and related disorders, attention-deficit hyperactivity disorder, and impulse control disorders” into the two-year review category, and claimants suffering from those conditions are especially likely to need assistance from low-income legal services organizations.
Some of the categories of recipients who would be subject to reviews every two years include people who were found disabled at step five in the process, which has nothing to do with the medical specifics of a given case. At least some commenters argue this exceeds the statutory authority granted by the 1984 Law. However, other recent changes arguably exceeded the statutory authority granted to the SSA. For instance, the five-day rule and guidance on representatives’ ethical duties can allow adjudicators to ignore evidence if it is not submitted as soon as it is received, even if a hearing is months away, despite a statutory duty to develop the record and review all of the evidence. The SSA eliminated the treating source rule shortly after a statutory amendment required the SSA to consult medical professionals in all cases with medically determinable impairments, a seeming acknowledgment of federal courts’ consistent remands when lay people, like ALJs, rejected expert medical opinions by treating sources with only their lay reinterpretation of medical evidence. Despite these dramatic rule changes, Social Security’s rules have not been overturned on the basis of exceeding statutory authority. Such cases are not within North Penn Legal Services allowed activities, and few other checks exist to protect recipients.
Like in the 1980s, there has been some Congressional outcry, as 41 Senators sent a letter to the SSA that "the proposed rule would dramatically increase the number of CDRs the agency conducts every year and burden millions of Americans with disabilities with more frequent, unjustified reviews of their eligibility for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefits." Forbes collected comments from Jennifer Burdick, Esq., with Community Legal Services, one of North Penn Legal Service’s PLAN partners, on the “onerous” nature of CDRs, and Michelle Spadafore, the senior supervising attorney at the Disability Advocacy Project of New York Legal Assistance Group, who noted that a “majority [of terminated recipients] will be people who were not able to navigate the bureaucratic hurdles unaided.”
Social Security seems unmoved. The Notice of Proposed Rule Making (NPRM) contains numerous logical fallacies. The SSA explains that terminating more children from SSI would be a good thing because parents whose children are terminated from SSI make up the difference by working. However, the premise of the child SSI program is that disabled children need the support of their parents in the home for support. A parent stepping away from a child to work, out of desperation, is poor justification for terminating child SSI. Good justifications would be evidence of higher test scores by the child after termination, or higher functioning. No evidence of such findings appears in the NPRM. The SSA explained that individuals who return to the workforce after shorter periods of time have higher earnings than those who take longer breaks from the workforce, but correlation is not causation. Individuals who are less limited to begin with will have shorter breaks from the workforce and higher long-term outcomes. The SSA acknowledged that about eight out of ten individuals terminated from SSA fail to support themselves with substantial gainful activity within three years of a termination, but spins that fact like a positive, emphasizing that two out of ten terminated recipients are able to earn more than $1,200 per month within three years after termination.
One of the few silver linings to the SSA’s proposal is its timing. Until recently, Pennsylvania lagged far behind its neighboring states in funding for disability advocacy by legal services organizations. Funding to provide legal assistance has increased this year, thanks to increased state funding granted through the Department of Human Services. North Penn Legal Services has expanded its disability advocacy program (DAP) and will be able to help more clients with reconsiderations, appeals from initial denials, overpayments, and continuing disability reviews, particularly for those clients who are receiving benefits from the County Assistance Office. We encourage those individuals with these issues to seek assistance from DAP staff at the County Assistance Office and obtain referrals to legal services to get the legal help that they need.
Unfortunately, even with expanded funding, NPLS will still only be able to help a fraction of the hundreds of thousands of Pennsylvanians who could be subject to a CDR in the next ten years. We know that the chances for successfully navigating the process after receiving a notice from the Social Security Administration are greatly improved with the help of a legal advocate. We encourage pro bono attorneys to consider helping with these cases and to call their local office to join us.
If you or someone you know is experiencing a problem with SSI or SSDI benefits, NPLS’ DAP program may be able to help. To apply for free legal help, please call 877-953-4250 Monday through Thursday from 9-11:30 a.m. or 1:30-4 p.m. (no Friday hours), or click here to apply online anytime.