Mike Silver and Joseph Silver of Silver & Silver.

In the March 26, Legal Intelligencer, an article highlighted how some of the recently implemented Social Security Administration (SSA) rules and regulations “have made a confusing and challenging process much more difficult to navigate” for Social Security claimants' representatives. As practicing Social Security attorneys, we agree that the recent rule changes mentioned, such as new rules regarding submission of evidence and the narrowing of circumstances under which a representative can withdraw one's representation, have presented further hurdles to providing effective representation in an already difficult area of law.

While the practice of disability law has become increasingly challenging for claimants' representatives in Pennsylvania over the past several years, the present article addresses recent developments that pose very real obstacles to disabled Pennsylvanians awaiting disability determinations in their pending claims before the SSA.

Specifically, this article will point to two recent developments—one from the SSA itself and one from the Pennsylvania legislature—that are slated to negatively impact the lives and livelihoods of disabled Pennsylvanians awaiting a hearing before a SSA administrative law judge (ALJ). Somewhat ironically, both developments we will discuss directly contradict recent (and largely beneficial) changes to the law that had already begun to positively and meaningfully improve the system.

General Assistance in Peril

As a result of a July 2018, decision by the Pennsylvania Supreme Court, general assistance (GA) cash benefits for the poorest Pennsylvanians, which had been previously eliminated in 2012, were reinstituted.

Specifically, the Supreme Court unanimously ruled that Act 80, the law passed by former Gov. Tom Corbett and signed into law in 2012, effectively dismantling the GA program, unconstitutionally violated Pennsylvanians' due process protections. As a result, beginning in fall 2018, the GA program, which in its current incarnation provides an approximately $200-per-month cash benefit to the poorest qualifying Pennsylvanians, was effectively restored and swiftly began to improve the lives of many disabled individuals in the Keystone State.

As Kristen Dama, a managing attorney with Community Legal Services of Philadelphia, recently told WHYY: “General assistance is a huge, life-saving program … these are folks who are really struggling to get by on a day-to-day basis, and general assistance is the only income support that's available to them.” As Social Security disability practitioners, we second this assessment, and have witnessed firsthand how this modest benefit has already meaningfully and positively impacted the lives of many of our clients with disability claims pending before the SSA. Many of these claimants wait up to two years for a hearing before an ALJ, and others must wait several additional years for their appeals to work their way through the administrative system and then the federal court system. This process often leaves these already impoverished and destitute individuals to fend for themselves with no income or support.

The GA program provides these individuals with minimal, but much needed, funds during this lengthy wait. Additionally, these funds are often used to provide transportation to and from medical treatment sessions, often vital to the survival of the disabled individual, but also necessary to establish a documentary record of the claimant's alleged medical impairments. Indeed, GA profoundly impacts the disabled community, as roughly 90 percent of individuals collecting GA have temporary or permanent disabilities.

Nevertheless, just as this benefit began to roll out to the poorest Pennsylvanians while many waited for the slow wheels of the federal bureaucracy to turn, in mid-March, the Republican-controlled Pennsylvania House Health Committee voted 14-10 to curtail this program beginning July 1. Now, should a bill to eliminate this program pass the full House of Representatives, this modest benefit could just as swiftly be eliminated. As a spokesperson for Gov. Tom Wolf, J.J. Abbott, recently told Penn Live, “There is absolutely no reason to rush the repeal of this program,” further describing Wolf's position that repealing this program without a meaningful replacement is “inhumane and inappropriate governing.”

Reconsidering Reconsideration

Adding further insult to injury should GA be repealed, the SSA has reimplemented an additional administrative step called “reconsideration” in the 10 test states (one of which was Pennsylvania) that had done away with this pre-hearing appeal stage more than 25 years ago. Reconsideration takes place after the initial application has been denied. As of April 1, and thereafter, any individual in Pennsylvania who receives an initial determination from the SSA that they wish to appeal, will now be subjected to this additional stage of appeal.

As a past president of the National Organization of Social Security Claimants Representatives, in 19991, I was asked to present our organization's official position on the elimination of Reconsideration before Congress's Social Security subcommittee. The Congressional subcommittee called on representatives from 20 national organizations involved with the disability process. Nineteen of the 20 organizations supported eliminating reconsideration. Only the Government Accountability Office (then the Government Accounting Office) (the GAO) opposed eliminating reconsideration. To our collective surprise, the GAO representative, was most transparent, acknowledging that the GAO's opposition was purely based on the burden that they felt would befall the treasury, should reconsideration be eliminated. They reasoned, quite correctly, if the second administrative stage was eliminated, more applicants would have their cases heard by ALJs, who would, in turn, approve a higher percentage of claims than would be approved if reconsideration remained in effect. Since almost half of all applicants tend to drop off at each administrative stage—and a certain percentage of claimants die waiting for a determination to be made—the GAO coldly and correctly calculated that eliminating reconsideration would result in the government awarding more benefits.

As our office practices disability law in New Jersey and Delaware in addition to Pennsylvania—where both states have maintained the reconsideration stage—we have seen firsthand how this step most often serves as a rubber stamp of the initial disability determination evaluation. While there are some few individuals who are approved at reconsideration for whom this change will benefit, for the vast majority of claimants denied at the initial level, reimplementation of reconsideration will serve as yet another barrier for them and will extend the wait time to get to a hearing before an ALJ, where the highest percentage of individuals are awarded benefits.

This additional layer of appeal comes just as wait times to reach a hearing before an ALJ have finally started to decrease in Pennsylvania after many years of longer and longer delays due to an increasingly large backlog of pending claims. The backlog and wait-time problem in Pennsylvania appeared to reach a high water mark around January 2018, when The Philadelphia Inquirer reported on the matter in an article titled: “SSI backlog: Thousands around Philly waiting more than two years for disability hearings”. Since that time, and to SSA's credit, the Pennsylvania hearing offices have assigned additional ALJs that have made a meaningful impact on the backlog and bringing down wait times locally.

Yet, while wait times to get to a hearing have decreased in Pennsylvania, the percentage of favorable decisions at the hearing level have continued to dramatically decline over the past five years from approximately 60 percent of individuals being approved nationally five years ago, to now approximately 40 percent approved at the hearing level. This, in turn, has increased the backlog of cases in federal district court, where Social Security cases now comprise a sizable percentage of the court's docket in the U.S. District Court for the Eastern District of Pennsylvania, in turn, straining a different branch of the federal judiciary. Indeed, in our own practice, we have filed significantly more appeals to federal court in recent years, based on our belief that a higher number of meritorious claims have been incorrectly decided at the ALJ level as the rate of approval has fallen.

To summarize, while there have been some productive and beneficial steps taken by the SSA, Pennsylvania courts and the Pennsylvania legislature in the recent years to improve the adjudication process for claimants awaiting a disability determination by the SSA, each productive step forward seems to result in a step (or two) backwards for disabled claimants. Nevertheless, we believe in the system and intend to continue our zealous representation for this marginalized population as long as there remains a viable path to do so.

Mike Silver is the founding partner of the law firm of Silver & Silver whose practice is concentrated in disability matters. He was the founding chair of the Philadelphia Bar Association's disability law committee and a past president of the National Organization of Social Security Claimants' Representatives (NOSSCR).

Joseph Silver is a 2013 graduate of Duke Law School who has been practicing disability law at the firm since 2014.