The Complicated Process of Claiming Disability

The process of getting disability can be long and complicated

Is Social Security Disability Insurance (SSDI) a hammock for lazy cheats or an essential government insurance program for workers too physically or mentally impaired to work? Is the near doubling of enrollment over the last decade a result of rapidly changing demographics or an out-of-control bureaucratic program begging for abuse?

While the debate rages on, heading for a Congressional showdown on whether major reforms will be adopted or deep cuts to meet the program’s deficit, the facts are clear and daunting.  Eleven million — one out of every 14 people — are receiving Social Security disability benefits. 

New Hampshire lawyers say the process of getting disability is long, complicated and increasingly erratic because of two competing trends: a political pushback because of concern about potential abuse and the sheer volume of applications that must be processed. All this means more rejections, appeals and delays. The initial Social Security Disability application process is typically handled without an attorney and takes about three months, but an appeal takes more than a year and is usually handled by an attorney for a contingency fee of no more than $6,000.

The classic SSDI applicant, based upon statistics and lawyers’ observations, is a 53-year-old man whose body, after years of physical labor, is breaking down to the point his ability to work is compromised. If he succeeds at obtaining a tax-free monthly benefit, it will be on average $1,146 (maximum of $2,800) and after a two-year period of time, he’ll be eligible for Medicare. Some end up seeking disability because of an injury by way of the Workers’ Compensation system or through private disability income insurance. Many private disability income insurance programs require and guide applicants through the public system and supplement the balance with private insurance payments.

"Eleven million — one out of every 14 people — are receiving Social Security disability benefits."

“Bodies break and break down,” is how Attorney John Ward, a former state lawmaker, who specializes in Social Security Disability cases, summed up what he sees from his offices in Manchester and Littleton: “Overall it’s not easy to prove; it is tougher than it used to be.”

To qualify, an applicant must have worked and paid into the system. The benefit is based upon previous earnings. The requirements include a limited work history (called Work Credits) and a medical condition that meets Social Security Administration’s definition of a disability. The disability must be severe enough to interfere with basic work or, according to SSA, not allow an individual “to engage in any substantial gainful activity (SGA) because of a medically determinable physical or mental impairment.”

 “It must be comprehensive injury — progressive and chronic,” Ward says. And it must be based in fact. “Ultimately it comes down to medical evidence,” says Donald Manning, a paralegal with a Manchester law firm. So a diagnosis, like Parkinson’s disease or blindness, is pretty easy to prove, but then it must be linked to how it impacts your ability to perform specific tasks associated with your existing job or an entirely new one. “It’s like peeling an onion,” says Michael Shklar, a Newport attorney. He asks potential clients rhetorically: “Can you be a greeter at Wal-Mart? Why can’t you do it?”

An inventory of tasks must be identified and how the disability or series of disabilities prevents that task from being completed. For example, if a disability causes someone to be unable to stand for extended periods of time and the job requires it, then it would be a qualifying factor.

“Mental health is a challenge,” Shklar says, because “there is no hard diagnosis.” And there are an expanding number of conditions that need to be sorted out by a state-based Disability Determination Services. He suspects that overburdened bureaucrats “say yes to the easy cases” but no to the complex ones, sending them along to an administrative judge for determination.

"Social Security is the largest insurance company in the world."

It is important to remember, Manning says, that “Social Security is the largest insurance company in the world.” And that SSDI is a public disability income insurance program rooted in the original landmark New Deal legislation creating the Social Security Program and was formalized in 1956. It grew substantially in the ensuing years and it never really succeeded at getting disabled workers back to work. In part, this is because of the age of most recipients and the steady decline of menial jobs. 

The program is funded in part through payroll taxes paid by both the employer and employee equally at a rate of 7.65 percent. FICA, which stands for Federal Insurance Contributions Act, is the acronym that appears on paychecks as an automatic withdrawal. It is an insurance program based upon contributions and work history. By contrast, Supplemental Security Income (SSI), a similar disability program, is a low-income welfare program without a work history requirement. 

Much has changed in the last half-century that has contributed to the boom in the number of people eligible for Social Security Disability Insurance. It is a demographic perfect storm, according to demographers, led by aging baby boomers, more women in the workforce and an increase in the retirement age. Together this means the health of more and more people will wear out before they are eligible for Social Security retirement benefits. But that’s not all, Shklar says: “The bad economy and disappearance of low-skill, menial jobs that have been replaced with part-time, fast-paced jobs.”

“It’s a disastrous race to the bottom,” he says, adding that many of these people “are unable to participate in the labor force because there are no jobs for them. Very simple work jobs are gone.” In some areas of the state, a full quarter of all prime-age men (25 to 54 years-old) are not part of the workforce. “Who’s pumping gas anymore?,” he asked, “Those jobs don’t exist.”

Categories: NH Law