Social Security Disability News

November 2009

Progress on Disability Backlog

In a news release on September 30, 2009, Commissioner Astrue announced a decrease in the hearing backlog for the first time in a decade: "Our backlog reduction plan is working, and progress is accelerating."

Fiscal year 2009 ended with 722,822 pending claims at the hearing level, compared to 760,818 pending at the start of the year, a reduction of more than 37,000 cases. Average processing time for each claim improved from 514 days in FY 2008 to 491 days in FY 2009.

The release emphasizes additional funding that allowed the hiring of 147 new ALJs in 2009, along with 850 new support staff. In FY 2010, the agency plans to hire another 226 ALJs plus staff. There are three new National Hearing Centers (in Albuquerque, Baltimore and Chicago), and 14 additional hearing offices will open soon.

Fleeing Felons Settlement Approved

On September 24, 2009, the district court approved the settlement of the nationwide class action Martinez v. Astrue, No. 08-CV-4735 CW (N.D. Cal.). The settlement will allow Social Security and SSI benefits to be payable where an applicant or beneficiary has an outstanding felony warrant — but there is no specific indication that the individual has fled to avoid prosecution. The settlement will affect over 100,000 people, with a potential benefit impact of several hundred million dollars.

Social Security has agreed to publish a formal Ruling to explain how the agency will implement the settlement. Details of the implementation process are available at this web address: http://nosscr.org/pdfs/martinez-notice.pdf, and coverage in the Wall Street Journal is available here: http://online.wsj.com.

Appeals Council Expansion

The Appeals Council was headed for extinction under the Disability Service Improvement plan, currently being tested in Region I states. These days, however, the AC has become an important tool to fight the disability backlog at the hearing level. In addition to its main headquarters in Falls Church Virginia, the Appeals Council has five new branches at a Baltimore location, to be staffed by additional Administrative Appeals Judges and support personnel. About 60% of cases at the AC for review are fully electronic, and representatives with pending review requests are beginning to receive bar codes for electronic submission of evidence, briefs, etc.

Age Categories Unchanged

SSA has withdrawn the 2005 proposed rule that would have changed all vocational age categories, increasing them by two years. 70 Fed. Reg. 67101 (11/4/05). The proposed rule was soundly criticized, with more than 900 comments almost unanimously opposed to the change. In announcing the withdrawal, the agency noted that "we continue to consider public comments and other relevant data sources." 74 Fed. Reg. 21563 (5/8/09).

Social Security - Medicare Link Challenged

On September 29, 2009, the DC District Court denied the government motion to dismiss the class action by former House majority leader Dick Armey (and others) to stop the mandatory enrollment in Medicare Part A at age 65 for individuals who have filed for Social Security benefits. Hall v. Sebelius, No. 08-1715 (D.D.C.).

The case has implications for disability beneficiaries as well. In addition to libertarian concerns, the plaintiffs contend that compulsory Medicare can cut off access to superior private health coverage. The lawsuit alleges that the policy of compelled Part A enrollment is just that: a mere POMS policy with no authority in the Social Security Act or the promulgated regulations.

File and Suspend

An excellent article in the "Your Money" section of the New York Times on July 11th covered the complex choices facing baby boomers and their spouses: "Collect Now, or Later? Timing Your Social Security Benefits." The article is available at http://www.nytimes.com. Here is the interesting "file and suspend" strategy mentioned in the article.

Since January 2000, workers who have reached full retirement age (FRA) are no longer subject to the annual earnings test or the foreign work test. When including this change in the Senior Citizens' Freedom to Work Act of 2000, Congress solved a dilemma for these workers and their spouses. The worker may be tempted to delay filing a claim, despite having reached FRA, in order to increase the benefit amount via delayed retirement credits (DRCs). However, the delayed retirement also would affect the worker's spouse, who cannot qualify for a spousal benefit until the worker retires.

The 2000 amendments therefore added the file and suspend option: The worker who has reached FRA may file a retirement claim but elect voluntary suspension of benefits, thereby (1) earning DRCs, and (2) paving the way for the spouse to receive up to half of the worker's amount..