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Social Security Disability News: August 2009

Social Security Disability News

August 2009

New Hearing Resources

The economic downturn is increasing the new claim filing rate well beyond projections, and the appeal rate for denials is also rising. At the hearing level, about 365 ALJs will be added to the corps by the end of 2010, to reach a target total of 1,450. Thirteen new hearing offices will be opened, but the GSA process to do so may be time consuming. Listed by state, the new ODAR offices will be:

  • Phoenix, Arizona
  • St. Petersburg and Tallahassee, Florida
  • Atlanta (South), Georgia
  • Danville or Portage, Indiana
  • Topeka, Kansas
  • Mt. Pleasant and Livonia, Michigan
  • Akron and Toledo, Ohio
  • Fayetteville, North Carolina
  • Auburn, Washington
  • Madison, Wisconsin

Note that ODAR offices covering large geographic areas may have satellite offices or permanent remote hearing sites. For example, the Seattle ODAR is in the process of adding a new hearing location in Anchorage, Alaska.

National Hearing Centers, which use exclusively video proceedings to assist backlogged local offices, are now open in Albuquerque and at ODAR headquarters in Falls Church, Virginia. Additional NHCs are planned for Chicago and Baltimore.

ALJ staffing of the NHCs is a current friction point with pending Unfair Labor Practice proceedings before the Federal Labor Relations Authority. The agency contends that NHC judges are supervisors, and thereby exempt from the collective bargaining agreement with the Association of Administrative Law Judges.

SSI Extension for Refugees

P.L. 110-328 provides an additional two years of SSI eligibility for refugees and other humanitarian immigrants subject to the seven-year time limit. The extension applies to those with time remaining in their original eligibility and to refugees already suspended since the law changed in 1996.

In order to receive the extension, refugees must sign a declaration to show a good faith effort to pursue citizenship. A third year of extension is available to those with a pending naturalization application. The agency implementation of the extension program is at POMS SI 00502.107. A new outreach campaign to contact individuals whose SSI is already suspended is at Emergency Message EM-09040.

Unsuccessful Work Attempt

The employee rules for UWAs are set out in 20 C.F.R. §§ 404.1574(c) and 416.974(c). UWAs are used to help decide if work during a relevant time period is substantial and gainful. By reputation, a Title II UWA is considered only in an initial disability determination, since work after benefits begin falls within the trial work and re-entitlement provisions. Not so. The UWA concept also applies after benefits start to determine if resumed employment is at the SGA level, warranting a finding that disability has ceased despite the continuing presence of a disabling impairment. This is a separate issue from the continuation of benefits during the work incentives. See Rulings SSR 84-25 and SSR 05-02.

SSA and SSI Benefits via Debit Card

As noted in a prior SSAS newsletter, the Treasury has offered a "Direct Express" option since April 2008, allowing enrollees to have their Social Security or SSI benefits automatically deposited in a Direct Express account, with debit card access to their funds at teller machines and financial institutions nationwide.

While Direct Express has proven popular, with some 446,000 participants to date, Social Security has targeted only those individuals, including the "un-banked," receiving benefits through the mail by check. In fact, Direct Express has features that many beneficiaries with bank accounts also should consider.

First, unlike bank accounts, Direct Express funds cannot be frozen or garnished by creditors, since Social Security and SSI funds in a Direct Express account are no longer commingled with other funds on deposit at a bank. Direct Express has no credit checks or minimum balance requirements, and there are no overdraft fees or bounce loans because the debit withdrawal is simply declined. There is no account maintenance fee. Withdrawing cash at a teller window carries no charge. Withdrawals also are free at more than 56,000 designated ATM locations, including specified banks and 7-Eleven stores.

Direct Express prevents the risk of lost or stolen checks of course, but the beneficiary is also relieved of the need to cash a benefit check in one lump sum, and the un-banked can avoid expensive check-cashing fees.

The growing tendency of banks to use Social Security and SSI benefits for fees and overdrafts is causing some beneficiaries to cancel direct deposit. Banks even use these benefits to collect charges for handling garnishment orders and freezing the account. These gaps in the exempt status of federal benefits are the subject of proposed regulations being developed by Treasury and SSA B see "Closing the Benefits Loophole" in the May 30, 2009, Wall Street Journal.

Disability Determinations

For fiscal 2008, the Title II and XVI allowance rate was 36% at the initial level and 14% on reconsideration. As usual, a large majority of claimants denied at the recon. level continued their appeals to the hearing level. The ALJ allowance rate was 63%, with 16% dismissed and 21% denied.

The Appeals Council remained a significant part of the process in fiscal 2008, remanding 22% for further ALJ proceedings, but allowing only 2% of claims outright.

Federal courts remanded an impressive 47% of all disability appeals, granted immediate benefits in 5%, and dismissed 8%.

These figures are drawn from the annual report by the SSA Office of Disability Program Management Information to the House Ways and Means Committee, for inclusion in the Committee's annual "Green Book" of background data for all programs under its jurisdiction.

Work Resumption Before the Hearing

Many ALJs find it difficult to award ongoing benefits where work has resumed by the time of the hearing, and push for a closed period stipulation. Advocates must decide what is practical, but a stipulation should be avoided if there is no "material medical improvement," since the client should have the benefit of extended Medicare, the trial work period and the other work incentives.

An ALJ who agrees that disability began more than 12 months before the work resumption will often ask counsel for authority allowing an ongoing award. The difficulty is showing that nothing precludes the recognition of an open period, and it is important to emphasize that the rare return to work deserves encouragement through the work incentives. Here are the general principles involved:

Where work at the SGA level resumes within 12 months and SSA is adjudicating the disability claim later, no period of disability may be recognized, even if the claimant's impairments were expected to preclude work for at least a year. This SSA policy applies equally in Title II and Title XVI claims, appears in SSR 82-52, and has been upheld unanimously by the Supreme Court. Barnhart v. Walton, 122 S.Ct. 1265 (2002).

For Title II only, work at the SGA level within the 5-month waiting period also prevents recognition of a period of disability, no matter when the disability determination is made. However, for SGA performed after the waiting period and within 12 months of onset, the POD is left intact and the normal work incentives apply if SSA makes the favorable disability determination before the work begins B a rare case given typical claim processing delays.

From the principles above, it flows that there is no barrier to an open period award where work began (1) after the waiting period (if any), and (2) more than 12 months after established onset.

As a last resort for motivated clients who return to work "too soon," remember to review the facts closely for the possibility of an unsuccessful work attempt, and for impairment-related work expenses that may lower earnings below the SGA test amount.

Medicare Part D "Extra Help"

Anyone who has Medicare can get Medicare prescription drug coverage. Some people with limited income and resources also are eligible for Extra Help to pay for the costs B monthly premiums, annual deductibles, and prescription co-payments B related to a Medicare prescription drug plan. The Extra Help is estimated to be worth an average of $3,900 per year. Many people qualify for these savings and do not know it, and the eligibility limits are well above the income and resource limits of the SSI program. To complete an eligibility worksheet and start the claim process, visit this SSA web address: www.ssa.gov/prescriptionhelp/10164.html..

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