The Social Security Disability Reconsideration Appeal Process Returns to New Hampshire

As a practicing Social Security disability lawyer handling claims throughout New England for the last 29 years, I have seen a number of changes to the Social Security disability program. For the majority of that time, from October, 1999 up through 2018, New Hampshire has been anomaly in terms of the appeals process as compared to Maine and Massachusetts, having been designated a prototype state (along with 9 other states) whereby the reconsideration appeal process was eliminated and a denied claimant could proceed straight to hearing.

In evaluating the pros and cons of reinstating the reconsideration process as of January 7, 2019, it certainly is important to take a hard look at the numbers associated with what have been the approval and denial rates at each stage of the process. Likewise, it’s important to understand the practicalities of the review process itself at reconsideration process, and to what extent it may or may not serve a useful purpose.

As a Social Security Lawyer practicing out of Maine, Massachusetts and New Hampshire, I’m familiar with how the approval rates differ not only between the states but between different areas of the state.   When taking the national approval numbers for Social Security disability insurance claims for worker disability insurance claims between the years of 2007 to 2016, it is notable that the total overall award rate for disabled workers is 33%.   Over that same period of time, the percentage associated with those that won their claims at the initial level has ranged between 20 to 25%, but has averaged 22%.   And so, in essence, 2/3 of those approved ultimately were approved at the initial level.  The percentage of those nationally that were awarded benefits at the reconsideration level was 2%, while the remaining 9% were awards that took place at the hearing level.   And so indeed it is a very small number of individuals that prevail at the reconsideration level.   And, yet, it’s important to remember that 10 out of the 50 states have not had a reconsideration process and so this has skewed the results somewhat.   The SSA statistics with respect to the overall approval rate at reconsideration for worker disability insurance claims at the reconsideration level ran between 13.2 and 17%, with the percentage approval rate decreasing from a high of 14.5% in 2000 to 11.1% in 2016.   This representing the fact that the reconsideration process has become a very rubber stamp denial process.

And yet the approval rates at the hearing level during the pre-prototype period (1992 to 1999)  was between 73.7 and 80.1 during the period of 1992 to 1999.   While initially seeing an uptake in approval rates for the 6 years after the institution of the prototype program given a curtailment of reconsideration in 10 states, there was subsequently a precipitous decline beginning in 2005 (from a high of 81.7% down to a low of 51.3% in 2016), which may very well speak to the very employment friendly economic climate for those remaining somewhat limited by their disabling conditions.

And so, while one might draw the conclusion that where there is only a very small approval rate at reconsideration as compared to the hearing process, why even bother requiring individuals to go through this process.  In practical terms,  while the Social Security POMS (Program Operation Manual) suggests that a new adjudicator undertake a reexamination of all evidence and make a new determination, in practice, even when there is compelling new evidence, the new adjudicator is ordinarily deferring to the initial decision by stating that the prior determination technically resolved all adjudicative issues.   This has led to what I describe as a rubber stamp denial.

However, there are instances when the reconsideration can prove useful for both claimants and the hearing offices.  Many claimants file their claims too early on, shortly after going out of work,  receive a quick denial, and then find themselves at the doorstep of a hearing well prior to being out of work for a year.  Many times, claimants fail to understand that Social Security disability is for those suffering from a medical condition that keeps the from working long-term (i.e., a year or longer).   Facing this additional hurdle called reconsideration can cause some to turn back, and appropriately so: perhaps reapplying later on if in fact they do find themselves longer-term disabled.   In practice, counsel likewise sees the need for claimants in NH to apply for both Medicaid (for absolutely essential health insurance) for treatment of their conditions along with APTD (Aid to the Permanently and Totally Disabled) for cash assistance.  Applications for these programs require an active application for Social Security.   Ending up at a hearing in front of a judge well shy of a year creates a serious dilemma at that point as to whether the claimant goes forward prematurely with the ALJ hearing as, if they turn back, they risk losing the APTD and Medicaid benefits they have.   An interim process called reconsideration helps solve that dilemma.

And so there are certainly pros and cons to reinstatement of the reconsideration process in New Hampshire.  However, reinstatement of this process will in no way harm one’s ultimate ability to receive benefits: and perhaps it will shorten for some the need to wait out what can be a year or longer to get to hearing.

If you or someone you love remains disabled from working and needs legal advice or assistance, suggest they contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.

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