Imagine a government program that provides benefits of great value. Imagine that all citizens have a right to receive these benefits if they can prove eligibility based upon their medical records.
Imagine that an enormous bureaucracy exists, to process all the applications and make determinations as to eligibility and the nature and extent of benefits it will award. And this bureaucracy is run according to a body of administrative law that has developed over 50 years.
Finally, imagine that, against all odds, the results produced by this government program have been pretty good.
The program is Social Security Disability (and its low-income associate, Supplemental Security Income, or SSI) providing cash and medical coverage for 8.7 million Americans, average monthly payment, $1,111. In Alaska the numbers are 12,825 disabled workers receiving Disability benefits and 10,780 receiving SSI benefits.
When I began to practice in this area, representing disabled people, I was amazed that a single claim went through so many hands in so many states: the local Social Security Field Office on 8th Avenue, the Disability Determination Services offices on Ship Creek, the official data center in Salt Lake City, Payment Centers in Baltimore and Richmond, CA. The entire paper trail goes into an electronic system, and somehow, it works.
The factors involved in winning—how somebody qualifies for Disability—this is the stuff of urban legend. Common misconceptions: they never approve you on the first application; you have to keep applying, over and over, and eventually, you’ll get it; they deny you hoping you’ll die.
Forty percent of claims are approved (national SSA estimate), usually within six months. The rest can be appealed to a hearing office. Alaska has one such office, the Office of Disability Adjudication and Review [ODAR], located in Midtown in Anchorage. The Alaska ODAR opened in 2010. It is budgeted for two administrative law judges, but for half of its brief existence, it has only had one.
Disabled Alaskans run into some serious problems when it comes to proving disability, pursuant to Social Security law. The claimant at a hearing on appeal needs lots of medical records, and critical evaluations must be signed by doctors. Doctors recognized by Social Security are M.D.’s, D.O. ’s and Ph.D. psychologists. Claims of physical impairment must be supported by x-rays, MRI’s, and lab results; mental impairments by psychiatric or psychological evaluations, hospitalization and treatment records. The findings and opinions of nurse practitioners, physician assistants, chiropractors and social workers can be used only to corroborate the reports of doctors.
The claimant must show that (s)he has obtained treatment for the disabling condition. Lack of medical care brings up an issue of credibility on the theory that– if the claimant really was in so much pain, (s)he would have gone to an emergency room. Lack of medical facilities in the geographical area is not recognized as an excuse for failure of obtain care. Likewise, lack of health insurance is no excuse. Living in a shelter is no excuse. The claimant has to find medical care and follow through with recommendations, cooperate with providers, fill and refill prescriptions, make appointments. Failure to follow through—credibility at stake again.
Alaska provides Medicaid coverage to some low-income individuals, but generally not to men and women without minor children. If single adults are desperate enough, they can request a coupon to see a particular doctor who will accept the coupon. The coupon system may be used for treatment of one severe chronic condition. The maximum income for eligibility in this program is $300/mo. True.
Claimants are encouraged by Social Security to obtain legal representation for the appeal to ODAR. Unfortunately, perhaps disgracefully, disabled Alaskans cannot find lawyers who will do this work.
The explanation is two-pronged. One, it doesn’t pay well, even if the lawyer has excellent skills and good luck. The attorney fee on a claim is 25% of the past due payment to the client, or $6,000. whichever is less. A claimant who earned good money might qualify for $2,000 a month in Disability benefits. The past due payment runs from the “onset date†through the date of approval of the claim on appeal (minus a waiting period). The onset date is the date upon which the claimant has medical proof of disability. $6,000 cases exist, but they are subject to offsets for worker’s compensation, and unpaid child support trumps the attorney fee.
More typical example: Claimant applied for SSI 14 months ago, while living at the Brother Francis Shelter. Benefits are awarded by the ALJ, and are calculated over at the Field Office at $698 per month for the 4 months at the shelter, plus $ 465. for the next 10 months when claimant slept on a friend’s couch. Total: $7,442. as a past due payment. Attorney fee is 25% of that, minus administrative fee, or $1779. (The State recoups its public assistance of $280/mo. out of past due payment also.)
This is the attorney fee for meeting with the claimant two or three times or more, completing forms, bird-dogging the collection and submission of medical records, review of same, writing a 2-4 page brief that proves disability under the Agency’s rules, and appearing at a fifty-minute hearing. Amazingly, very few Alaskan lawyers are interested in this practice.
Second prong: The Partially Favorable Decision. An ALJ can interpret the medical records so as to lop off most of the past-due benefits. This is called “amending the onset date.â€
Apparently, lawyers in the other 49 states are not deterred by these problems. We hear that most claimants are represented in every other state. In Alaska, it’s maybe twenty percent who are represented. And a lot of the attorneys at hearing on these federal claims are from out-of-state. They do not meet their disabled Alaskan clients until the day of hearing, if then. Statistics on representation are not available.
Social Security does publish statistics on the number of claims approved by each administrative law judge in the country. Alaska’s presiding ALJ has approved 24% of the claims he’s heard in 2012 (through July 12). That includes the Partially Favorables. The approval rates for the two ALJ’s who came and went are 66% and 40% for the few cases continued into the same time frame. The national average is 48%.
Possibly Alaska has more phony, lazy bums applying for Disability benefits than has any other state. Perhaps we have fewer cases of advanced cancer, multiple sclerosis, blindness, schizophrenia, bipolar disorder, severe, chronic depression, degenerative disc disease affecting ambulation, heart disease, lung disease…. Perhaps we have fewer industrial accidents that leave men and women disabled after the workers’ compensation claim is settled.
Whatever the reasons, disabled Alaskans are being approved for life-saving benefits at a rate which is half the national average.
