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Social Security disability process needs reform

Today we celebrate the 80th anniversary of Social Security. Since its inception, America’s Social Security system has undergone numerous changes. Originally, Social Security was intended to pay only retirement benefits to the primary worker. However, in 1939 the law changed to add survivors’ benefits and benefits for the retiree’s spouse and children. In 1956, disability benefits were added.

Las Vegas currently has six administrative law judges who determine whether individuals claiming serious disabilities, illnesses or injuries prior to reaching retirement age are entitled to monthly benefits. According to data for fiscal year 2015, the six Las Vegas judges made approximately 1,830 decisions, of which only 768 individuals alleging a disability received favorable rulings.

The average wait time for an individual alleging disability to appear before a Las Vegas judge, as of June 2015, is 13 months. Because of the backlog of disability cases, not only in Las Vegas but nationwide, many applicants for Social Security disability benefits across the country now have the opportunity to have a hearing before an out-of-state administrative law judge via videoconference. The presumptive goal behind video hearings is to reduce the wait times for those alleging disability to appear before a judge. However, it’s difficult to see if a judge outside of Nevada will fully comprehend the level of medical care available to an applicant in, say, Pioche, as opposed to Las Vegas. Or better yet, will an out-of-state judge actually know that UMC and Las Vegas Medical Center are different facilities? (Yes, that’s been an issue before). Video hearings might be a start to improving wait times on Social Security disability determinations, but it still takes a long time to get a decision, especially for an individual who’s out of work because of a serious disability.

On the 80th anniversary of the Social Security Act of 1935, and with the 2016 general election approaching, it’s time to seriously re-evaluate the operation and structure of this federal program. In my time practicing Social Security disability law, I’ve noticed at least three areas (other than the obvious long-term funding of Social Security) that need to be addressed by Congress.

First, I’ve found that a veteran who is younger than retirement age and was previously found to be 100 percent disabled by Veterans Affairs can be found not disabled by an administrative law judge. The disability tests for the Social Security Administration and Veterans Affairs are different. Although the 9th Circuit U.S. Court of Appeals held in McCartey v. Massanari that VA disability determinations are entitled to “great weight,” the administrative law judge ultimately has the discretion to weigh the evidence and determine the significance of a veteran’s disability rating, if any. Do disability determinations under the VA and Social Security need to be unified?

Second, if hearings can be held via videoconference, then do we need judges spread across the country for local hearings, or should we only conduct video hearings?

Third, administrative law judge denials are appealed to the Appeals Council in Virginia. Despite the widespread usage of electronic submission of documents throughout the Social Security process, the Appeals Council still requires documents to be served via regular mail. Shouldn’t the system be updated? And if so, what’s the cost?

You never know when you’re going to find yourself disabled. If you don’t have a private long-term disability plan, aren’t independently wealthy or don’t have significant family resources, then Social Security provides an important safety net for you and your family. There’s no easy way that Congress can make the program more efficient, although I’ve listed a few suggestions here.

With the 2016 general election approaching, it’s critical to begin a dialogue with candidates regarding the future and efficiency of the Social Security Administration.

Attorney Mark A. Rouse is a Las Vegas resident.

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