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

AuthorKen Matheny
PositionRetired 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.
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 “disabilityfor
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).
PUBLICATION NO. 05-11000 (2016), [https://].
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).
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. §§ 404.1501404.1599 (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.
§§ 404.15741576 (2016). Cf. Substantial Gainful Activity, SOC. SEC. ADMIN., [] (the substantial
gainful activity amount for 2016 was $1,130 per month or $1,820 per month for blind
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. Commr 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

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