The social security disability process can be a long and frustrating process. The process begins with an application that is reviewed and either approved or denied. If denied, an appeal must be filed within 65 days and the claim is reviewed on reconsideration. If the reconsideration is denied, then you have 65 days to request a hearing. The claim is then sent to the Hearings and Appeals Operations to schedule a hearing before an Administrative Law Judge (ALJ).
Years ago, we would warn clients that the entire process could take up to a year. However, initial reviews alone are now taking a year or more. The current national average to review an initial application is 233 days as of October 2023. The problem for anyone applying for social security disability is that you can no longer work to support yourself or your family and you have to wait years for benefits. Also, while you are waiting, any work that you do can and will likely be used against you. So, how is the average person expected to survive a year without any income? The truth is you can’t, and in fact 10,000 people die each year while waiting for a decision. The social security claims process needs to be completely revamped, but that is an article for another time.
This article will instead review the application process, discuss applicable laws and policies, and then discuss ways to expedite the claim process.
Initial Application Process:
Initial claims are processed through a network of local Social Security Administration (SSA) field offices and State agencies, normally referred to as Disability Determination Services or DDS.
The SSA field office is responsible for first reviewing applications. The SSA field office will review non-medical eligibility requirements. If the claimant meets the non-medical eligibility requirements, it is then sent to the State DDS for an evaluation of disability.
The State DDS offices are funded by the Federal Government but are separate State agencies. The DDS normally tries to obtain evidence from the claimant’s own medical sources. If that evidence is unavailable or insufficient to decide, the DDS will arrange for a consultative examination (CE). The claimant’s treating source is the preferred source for the CE, but the DDS may obtain a CE from an independent source. After completing their review, the DDS will make an initial disability determination and return the case to the SSA field office.[1]
Are There Any Laws/Policies Setting a Time Limit for DDS’s Review:
Laws
20 CFR § 404.1642 lists what they refer to as processing time standards. The target level for processing an initial claim for Title II benefits is 37 days and for Title XVI claims, its 43 days. However, the threshold levels are 49.5 days for Title II claims and 57.9 days for Title XVI claims. If a State agency (DDS) does not meet these thresholds for two or more consecutive calendar quarters, the SSA will notify the State agency and provide the State agency appropriate performance support for 12 months, including monitoring and performance support.[2] However, there is no specific law as to how long DDS has to review a claim.
Policies
The SSA Program Operations Manual System (POMS) DI 39557.001 sets forth the SSA’s standard of performance for DDS. The policy statement simply confirms the SSA’s responsibility to provide program standards, leadership and to monitor and evaluate DDS performance. The SSA Reginal Office (RO) has the primary responsibility for monitoring and evaluating DDS performance and should conduct regular visits and periodic reviews. POMS DI 39557.001 then simply reiterates the State agency DDS’s obligations to comply with standards set forth in 20 CFR §404.1642. Again, there are no specific policies that provide recourse for the individual claimant.[3]
Why is My Claim Taking So Long:
USA Facts issued a report updated 11/8/23 explaining the recent delays in initial applications. This report first noted that applicants for social security disability are currently seeing an average wait time between 218-223 days or approximately 18 to 19 months. The report also noted that wait times in 2023 were the highest reported in the last 15 years. As of October of 2023, the average processing time for an initial application was 223 days.
This report examined some of the reasons for the current delays. One issue is a backlog in cases from the COVID-19 pandemic. Another issue is the lack of funding and workloads causing a significant loss of employees. However, the report noted that the SSA did receive an additional $785 million increase over the 2022 enacted budget, but the SSA is now having to hire and train new employees.[4]
The USA Facts report referenced a letter from the SSA Deputy Commissioner for Communications dated letter dated 9/8/22. Deputy Commissioner Jeff Nesbit noted the SSA’s FY 2022 budget was $850 million less that the initial budget request and that this budget cut has led to a hiring freeze in March of 2022, and staffing levels were the lowest they have been in 25 years due to budget cuts. Deputy Commissioner Jeff Nesbit’s letter further noted that the budget cut was particularly felt at the State disability DDS departments.[5]
Overall, the wait times are due to several factors including a back log of cases from the COVID-19 pandemic, hiring freezes, and employees leaving due to massive workloads. However, it appears that the SSA has received recent funding that will help, but it will still take time.
What To Do?
As previously noted, there are no laws or policies that give a claimant individual recourse if an initial application is taking longer than expected. However, a claimant or representative can try and take some measures to assist the DDS in reviewing the application. First, make sure that all forms are completed accurately and legibly. Second, a claimant or representative can assist the DDS in obtaining needed medical records to hopefully expedite the process.
In addition to these practical approaches, the SSA does have some internal review polices that could expedite the process that are deemed Critical Cases that include:
Compassionate Allowance List
The SSA has a list of several medical conditions and if you meet the listed qualifications, this could expedite the process. The list of conditions can be found at: https://www.ssa.gov/compassionateallowances/conditions.htm
Terminal Illness
Terminal illness cases (TERI) are those in which the applicant has an untreatable condition that is expected to imminently end in death. There is no special form to complete for a case to be expedited under the TERI program. An SSA claims specialist or DDS claims examiner can identify a TERI case when the applicant’s illness is terminal.[6]
Military Service Disability
Veterans with a 100% Permanent and Total disability rating from the VA can receive expedited review of their applications and priority review.
Dire Need
A dire need situation exists when a claimant alleges any of the following circumstances:
- The claimant is without food and is unable to obtain it.
- The claimant lacks medicine or medical care and is unable to obtain it, or access to necessary medical care is restricted because of a lack of resources.
- The claimant lacks shelter (e.g., without utilities such that their home is uninhabitable, homelessness, expiration of a shelter stay, or imminent eviction or foreclosure with no means to remedy the situation or obtain shelter).
A claimant must be designated as a dire need case at the hearings level, unless the circumstances have changed sufficiently to no longer warrant such designation.[7]
[1] https://www.ssa.gov/disability/determination.htm
[2] 20 C.F.R. § 404.1642, Westlaw
[3] https://secure.ssa.gov/poms.nsf/lnx/0439557001
[4] https://usafacts.org/data-projects/disability-benefit-wait-time
[5] https://www.ssa.gov/news/dcl/2022/#9-2022-1
[6] https://soarworks.samhsa.gov/article/social-security-administration-programs-for-expediting-disability-claims-andpayments#:~:text=SSI%20Expedited%20Payments&text=An%20applicant%20may%20granted%20PD,or%20total%20blindness%20or%20deafness.
[7] https://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-40.html#:~:text=A%20dire%20need%20situation%20exists,of%20a%20lack%20of%20resources.