Unfortunate Development – Reinstating an Intermediate Step in the Disability Application Process

SSA will reintroduce the “reconsideration” stage of the SSA disability process, which will likely increase the wait time for a final decision.

The adjudication process for social security disability benefits currently has three levels in Colorado; an initial determination process and a two-part administrative appeals process. Most other states, however, have an extra procedural level that claimants must navigate, adding time and frustration to the overall process. Colorado and nine other states will soon be required to have claimants submit to this extra step in their social security disability claims if denied on the initial level.

After a claimant files an application with the SSA, claims representatives in field offices perform an initial review and then pass along the application to a state agency called the Disability Determination Service (“DDS”). The local DDS office then completes the review of the claimant’s application and makes the determination whether to approve or deny the disability. At the initial stage, the claimant does not meet in-person with the SSA adjudicator.

If a claimant’s initial application is denied, in Colorado the claimant may immediately file an appeal with the SSA requesting that an administrative law judge (“ALJ”) review the case at a hearing. This is called a “request for hearing.” The claimant then waits for typically many months for her or his hearing to be scheduled. If you have a disability lawyer, she will assist you with your preparation and advocate for you at your hearing. This is the only appellate stage at which the claimant will meet with his or her adjudicator, i.e. the ALJ.

If the ALJ denies the case at the request for hearing (“RFH”) level, the claimant may file an appeal with the Appeals Council, located in Virginia. At this stage, the claimant requests that the ALJ’s decision be reviewed and he or she may submit additional evidence at this time. If the Appeals Council denies the appeal at this level, the claimant has exhausted her administrative review options and the decision becomes a final determination of the SSA.

Most other states have adjudication processes with four levels instead of three. (There are nine other states that, like Colorado, only have three: Michigan, Pennsylvania, Alabama, Alaska, California, Louisiana, Missouri, New Hampshire and New York) This four-level process includes a step after the initial denial and the RFH. This intermediate step is called a “reconsideration”. If a claimant files for reconsideration, the DDS again reviews the claim – but the review is performed by a different DDS examiner than the person who was involved in the initial determination. The point of the reconsideration level is the reduce the number of claims that move on to the hearing level, as it is more expensive to process hearings than reconsiderations.

Many believe that the reconsideration step is unduly burdensome to the disability appellate process and slows down the already protracted wait times for claimants. In addition, the approval rate at each level varies widely. The Disability Determination Service generally approves less than a third of all initial applications. At the reconsideration level, it is unlikely that claims will be awarded, although the claims are processed relatively quickly. The request for hearing level takes the longest amount of time, but many cases are awarded. Finally, the Appeals Council approves the fewest amount of cases.

Why are there different disability adjudication processes across the country?

In the late 1990’s, the SSA decided to try an experiment to attempt to reduce the wait times for complainants. It identified the ten states listed above to participate in the experiment, including Colorado. The SSA called the experiment the Disability Redesign Prototype Model.  The project eliminated the reconsideration step in those ten states. The aim was to streamline the administrative review process, enhance efficiencies and provide the claimants with the same benefits.  As a result, wait times were greatly reduced, and claimants were able to get a final determination much faster. The project was originally slated to end on December 31, 2001, but the SSA renewed the project 13 times.

The SSA now is ending the project definitively, however. The Trump Administration’s FY2019 budget justification contained the statement that it would work to implement the reinstatement of the reconsideration step over the coming three years.

This means that very soon, the ten exempt states will be forced to reinstate the reconsideration level in the appellate process.