Social Security disability rule change has advocates raising a red flag

  • Cheryl Sawyer, right, works with physical therapist Leanne Greene at Valley Medical Group in Easthampton on Tuesday, July 18, 2017. GAZETTE STAFF / KEVIN GUTTING

  • Cheryl Sawyer, right, works with physical therapist Leanne Greene at Valley Medical Group in Easthampton on Tuesday, July 18, 2017. GAZETTE STAFF / KEVIN GUTTING

  • Cheryl Sawyer works with physical therapist Leanne Greene at Valley Medical Group in Easthampton on Tuesday, July 18, 2017. GAZETTE STAFF / KEVIN GUTTING

  • Cheryl Sawyer, suffering from multiple sclerosis, does a doctor-prescribed exercise on her basement stair,Thursday, July 13, 2017. GAZETTE STAFF/CAROLINE O'CONNOR

  • Cheryl Sawyer, suffering from multiple sclerosis, rests on her recliner when she gets spasms or pain. GAZETTE STAFF/CAROLINE O'CONNOR

  • Cheryl Sawyer works on balance with physical therapist Leanne Greene at Valley Medical Group in Easthampton last week. GAZETTE STAFF / KEVIN GUTTING

  • Cheryl Sawyer, left, meets with physical therapist Leanne Greene at Valley Medical Group in Easthampton on Tuesday, July 18, 2017. —GAZETTE STAFF / KEVIN GUTTING

Published: 7/23/2017 9:41:47 PM

NORTHAMPTON — She had been struggling to keep a job for months.

Southampton resident Cheryl Sawyer had a degree from a two-year college and about 10 years of experience climbing the ranks of retail. She had worked consistently throughout her adult life, priding herself on never being dependent on anyone else.

But then, in 2013, pain began to take over her life, pain that would eventually be diagnosed as multiple sclerosis.

Sawyer couldn’t stand for long. She couldn’t lift. She couldn’t bend. Soon, she began having muscle spasms. After being let go from a job for the fourth time, she decided to apply for Social Security Disability Insurance benefits.

“I always enjoyed working, and I felt like I was contributing,” Sawyer said. “I felt like I was doing something. Now I’m trapped.”

Like millions of other people in the United States, Sawyer waded through the Social Security disability application process, which usually includes multiple appeals, reams of paperwork, and a lot of waiting.

Most applicants for SSDI are denied, and the few who are approved wait on average 18 months to receive benefits after they apply for them.

And that was before a major rule change took effect in March in the way Social Security disability claims are processed, which has attorneys and advocates who specialize in helping people apply for benefits raising a red flag for their clients.

The change lets administrator law judges weigh evidence in an applicant’s file however they see fit, instead of being forced to give the most weight to the opinion of an applicant’s doctor. The new rule is meant to simplify a judge’s deliberations and put full decision-making power back in their hands, according to the Social Security Administration.

Local and national disability benefit advocates are concerned the change will worsen the administrative backlog or cause people to be wrongly denied for benefits.

“This is something very concerning for a Social Security disability attorney,” said Northampton lawyer James Winston, who represented Sawyer. “This is a pretty big change in how the SSA evaluates claims.”

The change comes at the same time that proposals from the Trump administration seek to reduce the SSA budget (see related story), which advocates worry could take help away from people who need it and also worsen the backlog of cases.

Winston said a bigger backlog isn’t just an inconvenience. It’s a potentially fatal consequence.

Last year, according to national disability advocates, more than 8,000 people across the country died while waiting for their benefits application to see the inside of a courtroom.

“These are people that have very serious health issues and the money they get when on disability can provide moderate relief, but doesn’t change that they have to live with an impairment,” Winston said.

Recent changes

The SSA states on its website that one reason for the change giving judges more leeway in their rulings is a belief that it is inappropriate for adjudicators to be forced to take a certain medical opinion as true.

The change, which applies to applications made on or after March 27, was opposed by the National Organization of Social Security Claimants’ Representatives, a group of lawyers who work on disability claims.

“We think a treating provider deserves controlling weight,” said Stacy Cloyd, the organization’s deputy director of governmental affairs. “Our concern is people who have strong medical evidence showing they should receive disability benefits won’t be approved.”

Critics of the new rule say a judge can now give more weight to other evidence in an application, including the opinions of doctors or consultants connected to SSA who meet an applicant once or sometimes never at all. In addition, as part of the rule change, judges no longer have to tell applicants how they weighed evidence when making their decision.

“When we look at the file, someone who never met a claimant or met them for five or 10 minutes, all of sudden that person’s report can count as much or more” than a primary care physician’s, Winston said.

The SSA also justifies the change by saying fewer and fewer Americans have a true primary care doctor, instead choosing to use a variety of providers.

Cloyd said even if more Americans are shifting from having a primary care doctor, people will likely still have some sort of treating provider, who prescribes medication, refers them to a specialist or provides other treatments. She said the opinions of these providers, even if they aren’t true primary care doctors, deserve the greatest weight when making decisions about disability benefits.

SSA also states on its website that the new rule is intended to decrease the number of cases held up in court because of concerns about whether a doctor’s opinion was given enough weight. Without explanations about how a judge weighed evidence, as under the new rules, Winston believes applicants might file more appeals.

‘I’d much rather work’

Sawyer was one of the many people who waited to apply.

When she became unable to work, Sawyer delayed seeking benefits for a few months because she felt embarrassed about needing government assistance and because she began to experience clinical depression.

Then, after getting denied in the first round of her first application in 2013, she felt discouraged and quit. She didn’t restart the process until 2015.

“I thought I wasn’t going to get it. It’s such a long process,” Sawyer recalled.

Sawyer was diagnosed with multiple sclerosis partway through the process of her second application, which was initially denied. In the later round of consideration, her case went before a judge, and six months later, in April 2016, she was approved for benefits.

She received retroactive payments for the 13 months spent on her second application process and for the year before her second application, as required under the 12-month rule. That rule is threatened under the Trump administration’s budget proposal, which seeks savings by cutting retroactive payments.

The average monthly payment for an individual with SSDI is about $1,100, and Sawyer said her payments are worth only about 40 percent of what she made while working in retail.

But Sawyer said a job didn’t just provide her income. It also gave her intangibles that have been hard to recapture: social interaction, purpose, meaning. A sense of independence.

“If I had a choice,” she said, “I’d much rather work than receive benefits.”

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