The Debt Ceiling Debate: Advocator's Analysis of the Impact on Social Security Benefits

As things currently stand, the United States government will lose its legal authority to borrow money on August 2, 2011. With this deadline drawing near, Social Security recipients are among the many groups of Americans who are wondering how this issue will impact their lives and more specifically, their monthly benefits. Should Congress fail to pass a plan to avoid default on the federal government's financial obligations, it is possible that benefits payments due in August (totaling $23 billion) will not be made on time.

  

In order to understand this issue and the potential impact on Social Security benefits payments, it is helpful to understand the background of the Social Security trust funds, 

as well as how income to the funds is invested over time.

  

The funds used to make Social Security payments reside among two large trust funds - one for Old-Age and Survivors Insurance (OASI) and one for Disability Insurance (DI). Legally, the funds are separate, but they often are described collectively as the OASDI Trust Funds. While in total the federal budget includes more than 200 trust funds, the OASDI fund is among the largest, at a total of $2,609 billion at the end of 2010. The Secretary of the Treasury is the managing trustee of the Social Security trust funds. So, all Social Security payments are made from the U.S. Treasury.

  

By law, income to the trust funds must be invested, on a daily basis, in securities guaranteed as to both principal and interest by the Federal government. All securities 

held by the trust funds are "special issues" of the United States Treasury. Such 

securities are available only to the trust funds. As tax income is deposited into the trust funds on a daily basis, it is invested in these special issue securities and the cash exchanged for the securities goes into the general fund of the Treasury and becomes indistinguishable from other cash in the general fund.

  

In the past, the trust funds have held marketable Treasury securities, which are available to the general public. Unlike marketable securities, special issues can be redeemed at any time at face value. Marketable securities, on the other hand, are subject to market forces and suffer losses or enjoy gains if sold prior to maturity. Theoretically, investment in special issues gives the trust funds the same flexibility as holding cash.

  

That said, in order for the special issues to be redeemed for "cash," they must be purchased by the U.S. Treasury. Then, the U.S. Treasury can sell the bonds to the public. However, if the debt ceiling is not raised, the U.S. Treasury will not have sufficient funds to purchase the bonds from Social Security in the first place, meaning the bonds could not be turned into cash and used to make monthly payments to beneficiaries.

  

Given the uncertainty around how and when this issue will be resolved by Congress, disability beneficiaries and health and welfare benefit plans should prepare for the possibility that Social Security checks will not be distributed as planned on August 3. For beneficiaries who rely on this income, this obviously means planning for a possible interruption to that income. For health and welfare plans, on the other hand, it means advance planning to handle the anticipated influx of inquiries from beneficiaries, as well as determining how to navigate the application of Social Security offsets. 

The "Brick Wall of Bias": A Look at the Subjective Nature of SSDI Claim Adjudication

In light of the one-sided media scrutiny on ALJs who award too many claims, this Newsletter zeros in on the more problematic issue - those judges who arbitrarily deny claims and demonstrate general bias and animosity toward SSDI claimants.

The Office of Disability Adjudication and Review (ODAR) is responsible for holding administrative hearings and issuing decisions as part of the Social Security Administration's (SSA) process for determining whether a claimant is eligible to receive Social Security Disability Insurance (SSDI) benefits.  In carrying out this responsibility, approximately 1,500 administrative law judges (ALJ) each issue 2 to 3 decisions per day, for a total of 500 to 700 decisions per ALJ, per year.  However, despite the aggressive production level, ODAR maintains a backlog of hundreds of thousands of disability cases nationally.

Given the rigorous caseloads required of Social Security ALJs, the quality of the decisions rendered has been highly scrutinized over the past several years.  A recent series of articles published in the Wall Street Journal drew attention to the near-perfect approval record of an ALJ who adjudicates SSDI appeals in an "impoverished intersection of West Virginia, Kentucky and Ohio."  According to the article (and confirmed by the Social Security Administration's Public Use Files), the ALJ has awarded benefits "in every one of his 729 decisions" rendered in fiscal year 2011. 

While the articles pointed out that there are ALJs with similar records across the country, it glossed over the fact that there are also ALJs who arbitrarily deny the vast majority of cases that they hear.  These ALJs arguably pose more significant issues from both a moral and cost standpoint, as they seem to exhibit a general bias toward disability claimants, leading to arbitrary denials and overturned decisions at federal court.  In fact, a class action filed in New York on April 12, 2011, alleges "that five named ALJs, including the Hearing Office Chief ALJ, violated the plaintiffs' constitutional and statutory right to a full and fair hearing before an impartial adjudicator."

Class Action Suit: Padro, et al. v. Astrue

As stated in NOSSCR's April 2011 Social Security Forum, "[c]laimants' representatives have been frustrated over the years with ALJs who seem to exhibit a general bias toward disability claimants and the inadequate procedures to address that bias."  Recognizing the lack of a systemic process to combat the issue, the class plaintiffs in Padro, et al. v. Astrue allege that as a result of the ALJs' bias and their "failure to follow applicable law and applicable instructions from the Appeals Council and the federal district courts," the plaintiffs "have been denied fair hearings before an impartial adjudicator in violation of the Social Security Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the U.S. Constitution."  The class "consists of all claimants whose claims have been or will be assigned to the Named ALJs for a hearing and/or decision and all SSI and SSD claimants who, since January 1, 2005, have received an unfavorable or partially favorable decision, not reversed on any subsequent appeal, from the Named ALJs."

The complaint alleges that the ALJs have routinely engaged in adversarial and unprofessional conduct, including "ignoring well-established law and regulations, selective and misleading use of facts, subverting the weight of the evidence rules, abusing medical expert testimony, and ignoring specific orders of the Appeals Council and federal courts."  While some of these allegations are strictly anecdotal, the data seems to support the allegations.  The ALJs at the ODAR in question (Queens, NY) have the third-highest benefits-denial rate in the country, with almost all of the named ALJs ranking high on the list of top claims deniers.  Additionally, the ODAR "suffers from one of the highest remand rates in the country."

In support of its allegation that the conduct of the Named ALJs represents a violation of the Social Security Act, the complaint cites a 1969 Second Circuit case, where the court opined that the Social Security Act "was intended to aid beneficiaries rather than ease the lot of administrators," and was "to be broadly construed and liberally applied," with its intent to include, rather than exclude, potential beneficiaries.  Additionally, the Supreme Court more recently confirmed that Social Security hearings are to be "non-adversarial [in] nature" and that ALJs have a duty to conduct inquisitorial hearings, developing facts and arguments both for and against the granting of benefits.

The complaint ultimately alleges that "the Named ALJs are systematically violating these core principles and depriving disability claimants of the right to a fair and impartial non-adversarial hearing."  However, "the lack of public accountability for ALJs" means that without intervention from the courts, "there is no practical means for the public generally, and the plaintiffs and class members particularly, to hold the Named ALJs accountable for their actions and to obtain the necessary relief from unfair hearings and decisions based on bias."

In a legal environment where the vast majority of claimants lack professional representation, the importance that ALJs are fair and impartial is heightened.  While the outcome of the class action lawsuit is far from determined, the allegations are representative of a broader challenge - the subjective nature of the SSDI claim adjudication process.

Advocator's First Hand Experience

At The Advocator Group, our clients and Hearing Advocates areexperiencing much of the aggressive and biased behavior indicated in the complaint.  Below are two actual examples:

-  A Hearing Advocate represented a 58 year old client alleging disability due to various circulatory and respiratory impairments.  This client's hearing had been rescheduled and thus, the Vocational Expert (VE) had no notice of the hearing and arrived an hour and a half late.  The ALJ (one of the Named ALJs) was extremely angry that the VE was late and his anger was reflected in his treatment of our client.  Throughout the hearing, the ALJ showed animosity toward our client, mumbling under his breath after each testimonial statement.  Additionally, he was angry that our Hearing Advocate submitted recent medical evidence to supplement the record, stating that the submission was "absurd."  At the conclusion of the hearing, the ALJ reprimanded our Hearing Advocate for submitting a pre-hearing on-the-record (OTR) brief, something that we do for every client we represent at the hearing level.  The ALJ stated that our hearing advocate was "trying to pull a fast one on him" by submitting the brief.  Our Hearing Advocate explained to the ALJ that we were simply advocating for our client.

  

-   A Hearing Advocate represented a 32 year old client in Jamaica, NY, suffering from various musculoskeletal impairments.  Our client was fairly fluent in English, but much more comfortable speaking Spanish.  For this reason, our Hearing Advocate ensured that an interpreter was present at the hearing so that our client could communicate his testimony as effectively as possible.  To begin the hearing, the ALJ (one the Named ALJs in the complaint) stated that he did not want the interpreter present because he did not think the interpreter was needed.  He then went on to ask our Hearing Advocate why he should believe that certain treatment notes were in fact authentic.  While finally conceding that the notes were actually from the medical facility cited, the ALJ was annoyed and dismissive of our client throughout the hearing.  To conclude, the judge questioned our client's work history as a delivery employee, demanding that we submit documentation that our client did "legitimate delivery work."

Conclusion

The impact of the increased initial application levels began to be felt at ODAR last year.  While some ODARs have been able to successfully keep up with the increased levels of disability claims over the past couple of years, others have struggled, leading to undue delays and notable variations in allowance rates from one region to the next.  This means that where a claimant lives or which particular ALJ hears a case has an enormous impact on the outcome of the case.  In this system, ALJs play key roles in determining the future economic security of each disability claimant that comes before them. 

The recent media focus reflects poorly on a group of ALJs that for the most part is comprised of dedicated, hard working legal professionals.  While the headlines and litigation focus on the outlying ALJs whose bias clearly inhibits their ability to fairly adjudicate claims, there is no doubt that the vast majority of ALJs nationally make their best effort to adhere to legal principles and ensure that claimants before them are afforded full, fair and non-adversarial hearings.  However, the subjective nature of the SSDI claim adjudication process opens the door to bias and abuse at all levels of the process.

 

Sources

Padro, et al. v. Astrue, Case No. CV11-1788 (E.D.N.Y., filed Apr. 12,2011).

Damian Paletta.  May 19, 2011.  Disability-Claim Judge Has Trouble Saying 'No.' Wall Street Journal.

SSA Public Use Files, ALJ Disposition Data (http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html)

NOSSCR, Social Security Form.  Volume 33, Number 4.  April, 2011.

Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969).

Sims v. Apfel, 530 U.S. 103, 110-111 (2000).

May is Hepatitis Awareness Month

The Hepatitis Foundation International designates May as Hepatitis Awareness Month.

Hepatitis is an inflammation of the liver and is a contagious disease resulting from infection of any of the five known hepatitis viruses.  It is one of the leading causes of chronic liver disease such as cirrhosis, liver cancer, or liver failure.  This condition is characterized by nausea, abdominal pain, jaundice, vomiting and loss of appetite, fever, and fatigue.  There are five known types of hepatitis virus, but only three of these are more commonly identified in reported cases in the United States, namely:  Hepatitis A (HAV), Hepatitis B (HBV), and Hepatitis C (HCV).

HAV is the least dangerous of these diseases and is spread through ingestion of fecal matter from contact with infected objects, food and drinks such as fruits, vegetables, shellfish, ice, and water.  This condition does not become chronic and people sick with HAV usually recover with no lasting liver damage. 

HBV and HCV are transmitted when blood or body fluids of an infected person are absorbed through the mucosal tissues of someone who is not infected.  Thus, sharing of infected needles, syringes, or other sharp instruments are some of the ways by which these viruses are spread.  Sexual contact with infected partners, and birth to an infected mother are transmission routes more common to HBV, but less seldom associated with HCV.  Unlike HAV, both HBV and HCV could progress into a chronic illness, requiring treatment and hospitalization.  Even after the patient recovers, periodic check-ups are necessary in order to monitor the development and condition of the liver.

An estimated 3,000 persons in the United States die from HBV-related illness per year; and 12,000 persons die from HCV-related illness per year.

HBV and HCV patients may need to stop work in order to undergo treatment for their disease.  During this time, they may be eligible for Social Security Disability Insurance (SSDI) in order to cover daily living expenses involved in the treatment and possible hospitalization.  Since the application process can take many months and is sometimes confusing, some people do not file timely, or if they do file they become frustrated and give up.  In these cases, The Advocator Group can help.  From facilitating the processing of the claim, assisting with the paperwork, obtaining medical information when it is needed, making sure that deadlines are met, and advising on the Medicare enrolment process, The Advocator Group is there when life changes.  Being represented by The Advocator Group reduces the stress associated with being ill and helps to get the financial help needed.  For more information on how The Advocator Group can help with the SSDI process, call their toll free number at:  (877) 261-1947.

This is National Stroke Awarness Month

When Facing a Disability - You Need an Advocate

On May 11, 1989, President George Bush created and signed into law, a Presidential Proclamation naming the month of May as National Stroke Awareness month.  In doing so, the President encouraged and designated a special time to create public interest and awareness of this life changing, challenging, and debilitating disease. 

According to the American Heart Association’s Heart Disease and Stroke Statistics (updated for 2011), “the estimated total cost (including health expenditures and lost productivity) from heart disease and strokes, in the United States is higher than that for any other diagnostic group.  According to the stats, over 700,000 people have succumb to a stroke, but less than half, have a fatal end.

So what happens to the hundreds of thousands of people who live, recover, and survive?

Whether you have suffered a heart attack, a minor stroke, or are suffering from any other disability, your life changes, and many feel, for the first time, like a victim; so vulnerable with nowhere to turn.   They may need disability benefits, but are hesitant and even afraid to pursue this course.  That is why you need an Advocate to represent you.

Social Security Disability Insurance (SSDI) – You’ve Earned It

What you don’t know about disability benefits, can really hurt you financially.  The average person tends to believe that social security benefits are strictly for their retirement.  Others may be hesitant to apply for any kind of disability insurance as they are totally unaware of their eligibility, and end up not applying for the very funds they need to sustain them at this crucial time. This type of reasoning has prevented many Americans from applying for the very help they so desperately require.  The fact is, that SSDI is funded by FICA tax deductions that Americans contribute to, through their paychecks.  This automatically earns them the right to apply for a benefit that they have already contributed to, throughout their years of employment.

The Advocator Group is Standing by – We Care and We Understand

The Advocator Group  has been helping thousands of individuals suffering from disabilities get the financial benefits that they have already earned and deserve. We are comprised of a nationwide staff of experienced and seasoned Case Advocates, who specialize in disability-related matters.  They, in turn, are supported by licensed attorneys referred to as Hearing Advocates, who are on call, if needed.  At The Advocator Group, we have all your bases covered.  We are here to help you navigate seamlessly through the process, making it pain free. 

As your disability benefit advocate, we are well aware of how difficult it can be when suffering from a disability.  You find yourself struggling your way around a Government website, trying to obtain the information needed, on top of having to cope with the application deadlines that must be met. It can be a very stressful experience.

The Advocator Group  gives you the representation that you need.  We will hold your hand in the process, with compassion and patience.  Our focus and passion is helping our clients receive their disability benefits quickly, getting the financial help that they require.

When you Have an Advocate – You are Never Alone

After a disability, your life will change.  Some people may go back to work, with a limited capacity, while others may have to leave their full time jobs and work from home.  Family and friends may be of great comfort, but at this time, you will need the facts, and need them quickly.

The Advocator Group is waiting to help you.  Just call our toll free number at:  (877) 261-1947.  We have the tools and resources that you need.  Let’s get started today.