The Social Security Disability Appeals Backlog Crisis and the Necessity of Radical Reform

• Author: Ken Matheny
• Position: Retired Administrative Appeals Judge, Social Security Administration. B.A., W.Va. Wesleyan College; M.A., West Virginia University; J.D., West Virginia University. The views expressed are those of the author and not the Social Security Administration.
• Pages: 361-389

THE SOCIAL SECURITY DISABILITY APPEALS

BACKLOG CRISIS AND THE NECESSITY OF RADICAL

REFORM

KEN MATHENY*

I. THE DISABILITY DETERMINATION PROC ESS AND THE ROOTS OF

THE CRISIS

The Social Security Act (the Act) establishes two benefit programs for

disabled Americans.1 They are Social Security Disability Insurance

Benefits (DIB) and Supplemental Security Income (SSI), which is for

disabled Americans with little or no work history.2 Because DIB is a form

of social insurance that the Act provides for persons who have a significant

work history, and SSI is a public assistance program created to assist those

who have worked very little or never worked, there are many differences

between the two programs.3 However, the definition of “disability” for

both programs is identical:

An individual shall be determined to be under a disability

only if his physical or mental impairment or impairments

are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education,

and work experience, engage in any other kind of

substantial gainful work which exists in the national

economy . . . . For purposes of the preceding sentence

(with respect to any individual), “work which exists in the

national economy” means work which exists in significant

numbers either in the region where such individual lives or

in several regions of the country.4

Copyright © 2017, Ken Matheny.

* Retired Administrative Appeals Judge, Social Security Administration. B.A., W.Va.

Wesleyan College; M.A., West Virginia University; J.D., West Virginia University. The

views expressed are those of the author and not the Social Security Administration.

1 Matthew Diller, Entitlement and Exclusion: The Role of Disability in the Social

Welfare System, 44 UCLA L. REV. 361, 362 (1996).

2 Id.; see also SOC. SEC. ADMIN., SUPPLEM ENTAL SECURITY INCOME (SSI): SSA

PUBLICATION NO. 05-11000 (2016), https://www.ssa.gov/pubs/EN-05-11000.pdf [https://

perma.cc/JY96-EG2J].

3 For a discussion of the different philosophies between social insurance and public

assistance, see Diller, supra note 1.

4 42 U.S.C. § 423(d)(2)(A) (2012). The identical SSI definition can be found at 42

U.S.C. § 1382c(a)(3)(B) (2012).

362 CAPITAL UNIVERSITY LAW REVIEW [45:361

When determining if a claimant for DIB or SSI is disabled, the Social

Security Administration (SSA) follows a five-step sequential evaluation

process.5 If at any step of the five-step evaluation SSA determines that the

claimant is disabled or not disabled, the inquiry ceases.6 At the first step,

SSA determines if the claimant is engaging in a substantial gainful activity,

that is, whether she is working and earning income that demonstrates that

she is not disabled.7 At step two, SSA determines if the claimant has a

“severe impairment.”8 At step two the use of the word “severe” is

somewhat misleading. SSA has explained that it is relatively easy to

establish the existence of a severe impairment.9 SSA will find an

impairment to be not severe only if it is a slight abnormality “which would

have no more than a minimal effect on the individual’s physical or mental

ability(ies) to perform basic work activities.”10 Step two, then, is a test to

5 The five-step evaluation process is set forth in 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),

416.920(a)(4)(i)–(v) (2016). Because the five-step process is identical for both DIB and

SSI, in the remainder of this Article I will cite only to the regulations for DIB contained in

20 C.F.R. §§ 404.1501–404.1599 (2016) with the understanding that the SSI disability

regulations are usually identical. I will cite to the SSI regulations only if they differ from

the DIB regulations.

6 § 404.1520(a)(4)(i).

7 Id. The guidelines for determining if a claimant is working and earning income at a

level that mandates a conclusion that the claimant is not disabled are set forth in 20 C.F.R.

§§ 404.1574–1576 (2016). Cf. Substantial Gainful Activity, SOC. SEC. ADMIN.,

www.socialsecurity.gov/oact/cola/sga.html [https://perma.cc/92C8-D77A] (the substantial

gainful activity amount for 2016 was $1,130 per month or $1,820 per month for blind

claimants).

8 § 404.1520(a)(4)(ii).

9 20 C.F.R. § 404.1520(c) (2016); 20 C.F.R. § 404.1521(a) (2016); 20 C.F.R.

§ 416.920(c) (2016); Bowen v. Yuckert, 482 U.S. 137, 153 (1987).

10 See SSR 86-8, S.S.R. Cum. Ed. (1986) (elaborating on policy that was effective on

August 20, 1980). The Supreme Court of the United States has observed that step two

requires only a de minimis showing that the claimant has an impairment that can interfere

with her ability to work. Yuckert, 482 U.S. at 153–154; see also McCrea v. Comm’r of Soc.

Sec., 370 F.3d 357, 360 (3rd Cir. 2004) (the purpose of step two is to weed out frivolous

claims). SSA has stated that a denial of benefits at step two is justified only if the evidence

clearly shows that the claimant does not have an impairment of combination of impairments

that have more than a minimal effect on the person’s abilities to perform basic work

activities. SSR 85-28, S.S.R. Cum. Ed. (Nov. 15, 1985). Furthermore, SSA will not deny

the claim at step two if the adjudicator is “unable to determine clearly the effect of an

impairment or combination of impairments on the individual’s ability to do basic work

activities, the sequential evaluation process should not end with the not severe evaluation

step.” Id. (emphasis added). If the evidence d oes not clearly show that an impairment does

not cause more than a minimal limitation, the inquiry should proceed to step three. See id.

Accordingly, because step two exists to screen out frivolous claims, few claims are denied

at step two. For data on the allowance and denial rates at the various steps of the sequential

evaluation process, see Bernard Wixon & Alexander Strand, Identifying SSA’s Sequential

(continued)