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"60 Minutes": What You Didn't See

Posted by Jenna M. Fliszar, Esq. | Jan 23, 2014 | 0 Comments

In October, I appeared on an episode of “60 Minutes” titled “Disability, USA.” The story discussed the Social Security Disability (SSD) system, its problems and inefficiencies. Having worked at Binder and Binder, the nation's largest SSD firm, I was in a prime position to provide a firsthand account of how inefficient and broken the system truly is. My interview with the anchor, Steve Kroft, lasted over an hour. That hour was whittled down into a segment lasting approximately 5 minutes. Besides me, they had interviewed Senator Tom Coburn and two Administrative Law Judges (ALJs), Marilyn Zahm and Randy Frye. Those interviews and a report on Eric Conn, an SSD/SSI attorney had to fit into a 15-minute segment, leaving much of what I had to say on the editing room floor. Lucky for you, I get to give you a behind the scenes look at what didn't make it into the segment as aired.

First of all, let me start by saying that, despite comments on other blogs, the point of the interview was not to slam people who are on disability or say that most people are not deserving of it. I had plenty of clients who should have been granted disability and were denied. Although I said that half my clients may not have been deserving of disability, I also said that I didn't blame them. I also told Mr. Kroft that my firm took on every case that called the office with no screening process to determine if the client had a viable claim. I called it a legal factory because it was a numbers game. There are certain ALJs that statistically grant the majority of cases in front of them. If Binder took on enough cases, eventually they would get those weaker cases in front of the favorable ALJs and disability benefits would be granted. There was nothing to lose, as travel expenses could be reimbursed by the government and clients were responsible for paying for medical records and other evidence. Also, even though I may not think they deserved disability, it's not up to me. It's up to the ALJ. If the ALJ granted them disability, legally they deserved it.

One thing we discussed in the interview was how the majority of the public doesn't realize or understand the high threshold that has to be met in order for disability to be granted. To be granted disability, you must have a physical or mental ailment which prevents you from doing ANY TYPE OF WORK on a full-time basis for more than a continuous period of one year when provided reasonable accommodations. The statute doesn't take into account whether or not an employer will actually hire you or the kind of work you've done in the past (unless you are over 50, since other rules kick in at that point). It doesn't take into account the current job market either. The question the ALJ has to answer is, if you are hired for the job, and the employer gives you reasonable accommodations and a ride from door-to-door (since many people claim they can't work because they don't drive), is there ANY job out there that you can perform? If they answer is yes, you do not qualify for disability. It's actually an extremely difficult standard to meet and there's almost always an expert for the government that says there are jobs out there that a claimant can perform.

This high threshold is one of the reasons so many people apply for disability. The economy is so bad that disability often becomes a last ditch effort for anybody who has any type of physical or mental ailment which makes it very difficult, but not impossible, to work. In an economy like this where so many people are vying for every job out there, employers have the pick of the litter when hiring new employees – they can be picky and discerning. Imagine this scenario: 5 people, all of their qualifications equal, apply for a job. One person out of five tells the interviewer he has an ailment and needs some sort of accommodation to be able to work. There are 4 other qualified people who can come in and do the job without any assistance or “special treatment” from the employer. Who do you think will get the job offer? Eventually, that one person is going to become desperate and have to find another option to make money just to survive. The most viable option available, in their mind, is SSD.

One of the biggest problems with the SSD/SSI system is the gigantic backlog of cases. If I had a client whose hearing was scheduled within a year of their initial application, I considered that a fast case. There were many times people were waiting a year-and-a-half up to two years for their hearing. Keep in mind that in the meantime, they weren't working and had no source of income save for a fraction of people who were able to go on welfare and receive a whopping $200 per month. If I were to miss one paycheck it could be catastrophic; I can't even imagine being in a position where I had no source of income for a minimum of a year. And many of these people had children!

Another huge problem is the inconsistency among ALJs. There were some ALJs who had a reputation for granting almost everything (and their stats showed 80-90% grant rate), while there were other judges who we knew would deny a case no matter how strong it was. There were judges who refused to grant cases that were solely mental health cases simply because they believed mental health was not disabling despite the fact that the SSD statute specifically listed several mental health conditions as disabling. In fact, one judge came right out and told me, on the record, that mental health conditions are not disabling. Some judges would see how strong a case was and grant it without the need for a hearing, while other judges required the client and attorney to show up just to tell us the case was granted, even though they could have granted it without the need for a hearing. I can't tell you how much time and resources are wasted as a result of these inconsistencies or the failure to follow basic regulations.

One solution the Social Security Administration has come up with to help move the system along and help claimants receive benefits is the Non-Attorney Representative (NAR) program. NARs are people who take an admittedly difficult test on the regulations and rules related to the SSD program. A person must have a Bachelor's degree and pass the test with a 70% in order to become a NAR. In my opinion, NARs are essentially permitted by the SSA to practice law without a license. They do everything an attorney does: file motions, argue cases to the judge, question witnesses, and receive payment for cases. In any other system, this would be lawyering. It doesn't help that clients often go to the big firms believing they'll get an attorney but then are assigned a NAR (remember, NARs are great for big firms as they can be paid lower salaries than attorneys). Don't get me wrong, NARs are usually extremely intelligent and capable of handling an SSD/SSI case. However, it never sat well with me that a non-lawyer was doing the same job as me and making legal arguments in the process.

I think the better solution is to make the system an adversarial one. Right now, claimants can be represented, but there is no one there to rebut their case or argue on behalf of the government. As a result, ALJs often become the adversary even though their role is supposed to be a neutral third-party decision maker. They often feel and act as though they are representing the government. I believe this probably contributes to much of the inconsistency in the rulings. An adversarial system would allow ALJs to move back into the third-party decision maker role. It would also allow for both sides to negotiate and possibly resolve the case without the need for a hearing which would help alleviate the backlog in the system. Having somebody represent the government could also help stem the tide of frivolous disability claims. Although it would initally cost money to hire these attorneys to represent the government, in the long term it should save tax dollars as it would make the system much more efficient.

This is the conversation that happened behind the scenes and didn't make the cut. Your experience may have been different, but this is what I observed in representing close to 200 claimants. The system is broken. I don't think it's working in its current form. Too many people who deserve disability are denied, and too many people who don't deserve it are granted. It's inefficient and inconsistent. The solution isn't simple, but at least “60 Minutes” started a discussion.

About the Author

Jenna M. Fliszar, Esq.

Bar Admissions Pennsylvania United States District Court for the Middle District of Pennsylvania Additional Training Practitioner, Standardized Field Sobriety Testing Instructor, Standardized Field Sobriety Testing Drug Recognition Expert Training Forensic Chromatography Training Ad...


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