The huge Social Security scandal

I have written before on the troubled situation with Social Security appeals. Richard G. Kopf, The trouble with Social Security disability appeals, Hercules and the umpire (May 10, 2013). As an introduction to this post, I urge the reader to take another look at that earlier post.

Now, the Washington Post has done the research and has produced a terrific in-depth article detailing that the Social Security Appeal process has a backlog of 990,399 cases. David A. Fahrenthold, The biggest backlog in the federal government, Washington Post (October 18, 2014). The situation is outrageous. It is a scandal of monumental proportions. Something must be done, and now, to relieve the many dedicated Administrative Law Judges, and other similarly dedicated SSA employees, who confront this mountain of work every day under impossible conditions. Claimants who are not entitled to benefits receive them because the ALJs don’t have time to do it right. Claimants who are entitled to benefits wait in the wings despite the fact that many of them are the most vulnerable among us.

To fix the problem will take a lot of money and the will of Congress to get it right. Until then, the Social Security appeal process will continue to operate, if that’s what you call it, like a Bangladeshi bureaucracy instead of an American legal system worthy of respect. The President and Congress should be embarrassed. Said to say, that’s not news.



45 responses

  1. In my opinion, the bottleneck is partially due to inefficiencies at the ALJ level. Currently, ALJs are overworked and understaffed. But the rest of the administration places unfair demands on them to adjudicate every case and provide a sufficient rationale even in cases that are easy approvals. The ALJs have been discouraged from using a number of tools that would lessen the workload such as on-the-record decisions and communicating directly with attorneys and representatives. These inefficiencies result in a lot of sloppy decisions that ultimately end up appealed in federal court–pushing the workload on to you guys.

  2. If the staffers didn’t reject 99.44% of applications, the ALJs wouldn’t have so much to do. The typical claim is filed and rejected. The insurance companies condition receipt of benefits on getting an ALJ opinion, so you have to appeal informally, where your claim is almost always denied. So, you are forced to go to the ALJ, regardless of how obvious the claim is.

    Government attorneys treat the money as if it were theirs, so they fight like a sow bear against anything that threatens her cubs. Winning isn’t everything; it is the only thing.

    Still, I have a hard time calling anyone in that agency “dedicated.” “Blindingly incompetent” is the phrase that first comes to mind.

  3. I agree about the insurance companies. One issue that would significantly affect the backlog is if the long-term disability insurance companies were not permitted to subrogate their policies by requiring Social Security applications in every case. I’m not certain what percentage of total claims involve a concurrent LTD claim, but my guess is that it would be significant. However, as long as the current statutory and regulatory scheme permits this type of subrogation, the insurance companies will take full advantage.

  4. Judge:
    You’ll pardon both my ignorance and my cynicism but this situation strikes me as classic Cloward-Piven. Many years ago I read a quote that I think applies here: “Don’t bother to examine a folly–ask yourself only what it accomplishes.” What this situation accomplishes is to have more and more Americans, whether entitled or not, sucking from the public teat. We will have lost our country when the government becomes nothing more than a device whereby the unproductive part of society can vote benefits from the productive part. Have we reached that point already?

  5. Nick,

    Thank you for this insight. I had no idea this was taking place. Nor do I have the slightest idea whether the practice is good or bad. However, it does cause me to wonder whether Congress is aware of what is going on.

    All the best.


  6. From my days as a USDC law clerk that saw disability appeals come through, there were a few things readily apparent. First, these people already lived in poverty. These were not people just waiting for a long-term disability insurance policy to kick in. Second, the reason their claim was denied was because they already lived in poverty. They were unable to provide a consistent medical record, well, because they couldn’t afford ongoing medical treatment. Instead, they offered snapshots in time when they could find the records; and the snapshots were from a treating physician who did not have any meaningful knowledge of prior treatments or diagnoses. There were ALJ findings that the person could work part time as a telephone solicitor. Tell me how that person is leading a life beyond poverty. These were easy cases for the ALJs to dispose of in some ways because the record was so bad.

  7. Not really sure this is a proper forum for extreme right-wing politics. If you want to talk jurisprudence, this is the place.

  8. Robert Since Cloward Pivens was proposed in 1965, if it still has not achieved its goal in nearly 50 year ,the people behind it must have remarkable stamina. 50years ago I was a handsome young thing, now I am an old wreck. Are lawyers productive vel non? Just asking.

  9. Recall a case from my ad law teaching days in which SSA argued without a giggle that a lady with terrible Crohn’s disease could operate an answering service from the bathroom. Curious if people who pay for disability insurance are required by subro to seek disability, who is sucking from the governmental teat, the insured or the carrier. In some types of coverage carrier do not consider subro in setting rates. Wonder what they do in disability. Hypothetical, suppose a lawyer paid for disability insurance for 25 years, becomes disabled and is required to pursue SS Disability, is she part of the mid sixties Cloward Pivens conspiracy?

  10. Dear repenting lawyer:
    The Cloward-Piven strategy is not about a particular case, whether its your hypothetical lawyer or the unfortunate lady with Crohn’s disease. The “genius” of the strategy is to so overload these entitlement programs that a crisis is precipitated leading to a replacement of same with a more dramatically redistributive system.

  11. Dear Robert,

    On SS appeals, most of the time I deny them. That is because the law is against the claimant. But, sometimes, I grant the appeal because the claimant is clearly entitled to benefits under the law. My post was intended to complain about the failure of the legal system, and not whether SS writ large is good or bad. That is a call for Congress. I simply want the legal process to work with some modicum of speed and fairness.

    I know this is simplistic. But the policy debate on SS is way above my pay grade.

    All the best.


  12. Robert One of the elementary rules of conspiracy law is that a conspiracy may not be inferred from identical or similar conduct if each acter’s self interest would lead him to engage in the conduct regardless of what the others do. While the Washington Times may be right about POTUS, the editorial is not relevant to the number of SS Disability claims. which would be pursued Cloward Pivens or no Cloward Pivens, since the claimants just want money and their lawyers just want fees. Or maybe you are assuming a conspiracy in SSA, but that would go against the government ineptitude thesis most conservatives hold, and does not seem consistent with the motives usually applied by public choice theory to government employees. On this one I will borrow from Scots law and give you a not proved.

  13. Robert I have heard about these wonderful impacts of aging, but I have yet to see a fifty year law class that locked other than wasted away though as mine approaches I hope my classmates are in better shape than I am.

  14. Robert,

    If you want a pristine example of Cloward-Piven, how about the war on civil rights and the middle class waged by extreme right-wingers? Back in 1976, Jude Wanniski devised what he called the “two Santa Claus strategy,” which sought to bankrupt the government, with the intention that it would no longer be able to maintain the social safety net and basic infrastructure. And that has been Republican policy — “starve the beast” — ever since the Reagan ideologues swept into power. They whine about out-of-control spending and “the makers and the takers,” mindful of the fact that they disemboweled the middle-class through hollowing-out of our manufacturing base, and engaged in destruction of trade unions and treasonous sabotage of the government. (Never mind that tax revenues as a percentage of GDP are the lowest they have been in my long lifetime.) They have been selling the meme that our government can’t do anything, and proved it by putting incompetent political hacks like Michael Brown (a lawyer and Judges and Stewards Commissioner for the International Arabian Horse Association) in charge of critical agencies like FEMA.

    Yes, this is a right-wing application of C-P, in the sense that rules have been devised with the intent of depriving people of benefits, and relevant agencies have been so starved of resources that they can’t meet the need. We see the same thing in our court system: rather than expand it to meet the need, it has been starved to the point where we no longer enjoy civil rights, as there is no effective mechanism for vindicating them. Judges are literally trained to dispose of pro se civil rights claims, instead of hearing them. This has the appearance of a grand plan to bring about a dystopian oligarchy, where the United States of America once stood. Modern Russia is their utopia, with a 13% flat tax and no social safety net.

    If you want to discuss this, I am ready, willing, and able. But with all respect, this is not the proper forum for it.

  15. Dear Absinthe-Minded Professor:
    I will be more than happy to answer you if you would be so kind as to direct me to the proper forum

  16. Seems to me that the comments section of the Sun Myung Moon Times article you originally is adequate, and it would actually be on topic there.

  17. They are. And of course, subrogation is considered when setting rates, as the very purpose of an insurance company is to sell coverage while denying liability. Problem is, instead of getting the tax-free benefits you paid for with after-tax dollars, you have to pay tax on your SSI income.

    We’re all part of the vast left-wing conspiracy. Those of us who worked and paid into the system, with a reasonable expectation of being caught by the social safety net. To Randian zealots like Robert, who embrace an extreme form of social Darwinism, even the thought of a social safety net is anathema. It is a religion to them.

  18. Robert,Hardly a response, I suppose I have no answer to the charge that the Jesuits, the Masons, and the Illuminati have joined in this conspiracy, and my usage of conservative was the popular one which includes various libertarian beliefs in the term. Certainly you do not seem to believe in super efficient government.

  19. Curious about your of course, if subro is not considered in setting rates that would increase not diminish the money the insurance companies, hence my curiosity. I do not know and am not motivated to look it up.

  20. This sounds very much like the ALJ backlog at CMS’s Office of Medicare Hearings and Appeals.

    Essentially, CMS ratcheted up its “program integrity” efforts and started compensating audit contractors based on claims recoupment. And the overturn rate for appeals once those recoupments reach OMHA’s ALJ level? On averag it’s 60 percent.

    I’m over simplifying, but the net result has been a tsunami of appeals so huge that OMHA has a two-year-plus delay in appeals going to ALJ, and has refused to assign anymore ALJs until it gets through that glut of likely questionable recoupments.

    Who is auditing the auditors?

  21. PS: If you want to read more about it, I cover the topic fairly regularly over at Look under the topic of “audits.”

    PPS: The OMHA backlog situation is so nutty, the industry I work in has floated legislation into the house, H.R. 5083. Who knows if it’ll go anywhere before the midterms force it to lapse…

  22. You consider Robert’s view to be “extreme right-wing politics”? Good grief! Furthermore, I suggest that on one level the comment does, in fact, address the condition of “jurisprudence” in this fine nation of ours. Parts of our legal system are starting to spiral into bureaucratic oblivion.

  23. Reno: what you say is quite accurate based on my own experiences in representing SSA disability clients (not my specialty, but have handled enough to have impression of the system and how it works). Lousy medical records, or not much record at all due to lack of medical care, and little evidence available to “prove” the claim, at least on the first go around. Two denials and then before the ALJ, where the claim was most often allowed. The old “third time is the charm” idea.

  24. Dear repentinglawyer:
    You are correct, sir: I do not believe in super efficient government (has anything like that EVER existed?).

  25. Dear Absinthe-Minded Perfesser:
    “Vast left wing conspiracy” is your phrase, not mine. I am not a zealot but someone who tries to call it straight. The phrase “social safety net” sounds rather benign until you realize that, at the very least, such a thing comes at the expense of your hard earned dollars, creates a disincentive for voluntary charity, and births metastasizing government bureaucracies that exist more to justify themselves rather than to help intended recipients. If this makes me a social Darwinist then I plead “guilty” in capital letters.

  26. MOK which parts? what evidence? I know NU football appears to be in decline, is that what you mean?

  27. Robert, historicly social insurance and particularly SS has been more efficient than private insurance, in part it is because they are not subject to adverse selection and moral hazard to the same degree as private carriers and they benefit from economies of scale. In addition they are not subject to the underwriting cycle.

  28. Dear repentinglawyer:
    Please see the Galveston pension plan as a comparator to SS. Were that there was a federal judge who would have the courage to declare SS as unconstitutional.

  29. I’m sure the Old Grey Lady doesn’t have a forum for your views, but Sun Myung Moon’s daily had one. Problem is, it had over 2,000 posts on the topic chosen, and it would be hard to find your comments.

  30. Robert You have a gift for changing the subject, example of Galveston not relevant on issue of efficiency, you would need a national example, there have been some not very sucsessful efforts to adopt the 401(k) models to national social insurance, and that is really all Galveston plan is.a public sector example of a defined contribution rather than defined benefit plan. The social security part is a fluke, I paid in and now receive SS, the pension arrangement after that is no different from Galveston. The debate is whether total transfer of portfolio risk to employees with out SS net is a good idea. I am skeptical but that is not what we have been talking about

  31. No, it doesn’t. We pay in, with the reasonable expectation that it will be there for us if we need it. Take disability, for example. It is quite likely that you will become disabled at some point before you retire (I’ve been there). SSI is like private insurance, only without the huge sales commissions.

    Other countries have proven that socialized medicine is more efficient than our system. Even Mint Rawmoney admitted that! Whereas I don’t believe in super-efficient government — look at the total clusterfuck we call the federal courts! — I am not quite as religious in my belief in an Adam Smith-style free market, as I know that it can only exist in theory.

    Do you realize how much of your insurance dollar is eaten up in admin costs? 30%, as opposed to the 2% for Medicare. We can do better and should, but your solution is far from being a panacea.

  32. Cherry-pick. Denmark’s government is a lot more effective than ours, which argues for socialism, right?

  33. Dear repentinglawyer & Absinthe-Minded Perfesser:
    Then why do those employees who bear the total risk of transfer of their portfolios earn higher returns than that of SS (and why not given employees the choice in the first place?)?
    Denmark?! Would this be the same country that taxes its citizens to an extent greater than all but seven (7) other countries on the planet? Why am I not surprised that you’d choose it…

  34. Your gift for changing the subject remains in tact. You raise the issue of government efficiency, I pointed out social insurance you countered with Galveston, but Galveston said nothing about relative efficiency, particularly since City of Galveston is government. Your response is privatizing SS, having along the way announced SS violates the Constitution. The Perfesser pointed to the legendary efficiency of Denmark, and you attack its tax rates. All of this in a discussion of the Disability part of SS. I am impressed.

  35. This is very common and known. This is an old article from 2008 ( but there were more recent NY Times articles on the LTD carriers causing a chunk of the SSD claim backlog by requiring every case be appealed within the administrative level (but NOT to federal court). The financial benefit is so great to the LTD carriers of saving up to $24-40k a year (the offset is not only for the adult benefits, but ALSO for the child benefits, which were intended for the kids under 18; the LTD carrier takes that money, too, as part of the LTD benefit offset). The result is that a promised, for example, $5k LTD benefit gets essentially erased because the claimant gets SSD benefits (for example, up to $2500 for the individual and then potentially up to $2500 for children benefits that flow from their parent getting SSD benefits). What a deal for the LTD carrier–premiums get collected, but then nothing gets paid out because of the offset.

  36. If you followed the applicable regulation regarding the treating physician rule in SSD cases (404.1527(d)), you’d reverse the administrative denials and grant or remand the cases. Cases are won or lost based on the treating physician rule and, respectfully, the SSA and its ALJs (and most importantly, the administrative agencies before it even gets to the ALJs) refuse to comply with the treating physician rule).

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