Breakdown of Approvals and Denials in 2012

The chart below is a helpful breakdown of exactly what happened with applications for Social Security Disability in 2012. Of all the initial applications, 33% were approved and 67% were denied. Of those that were denied that went through with asking for reconsideration– only 12% were allowed while a whopping 88% were denied– making reconsideration the toughest point to win a favorable decision. Following the denial at reconsideration, those applicants that appealed again were asking for a hearing before an Administrative Law Judge. That is the first time the Claimant was actually in front of a judge and allowed to answer questions about his or her disability. At that level, 52% were allowed, 16% were dismissed, and 32% were denied. The nest step within the Social Security Administration is to appeal to Appeals Council. That is the final administrative appeal before one must file a civil action in Federal Court. At the appeals council level, only 2% were approved, while 18% were remanded back to the ALJ, 4% were dismissed and 77% were denied.

I will post the 2013 statistics later. (Click the image to enlarge.)

SSA Status Report for Reps

Gordon Gates posted about representatives being able to pull status reports from the Social Security Administration. I went online to check it out, and it is really an amazing document. It has all of my pending hearings, where the hearing will be, if any decision has been recently made, and more. You can read more about it in his original post. If you are an attorney doing social security disability work, you really need to check it out!

3.6% Cost of Living Increase for Social Security Beneficiaries

ocial Security Announces 3.6 Percent Benefit Increase for 2012

Cost-of-Living Adjustment is First Since 2009

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Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012, the Social Security Administration announced today.

The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

Some other changes that take effect in January of each year are based on the increase in average wages. Based on that increase, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $110,100 from $106,800. Of the estimated 161 million workers who will pay Social Security taxes in 2012, about 10 million will pay higher taxes as a result of the increase in the taxable maximum.

Information about Medicare changes for 2012, when announced, will be available at www.Medicare.gov. For some beneficiaries, their Social Security increase may be partially or completely offset by increases in Medicare premiums.

The Social Security Act provides for how the COLA is calculated. To read more, please visit www.socialsecurity.gov/cola.

I am not liking this new policy from SSA:

I just received this alert from NOSSCR. There are often reasons for a claimant to file a new application while there is an appeal pending at Appeals Council:

In today’s Federal Register, SSA published SSR 11-1p, which revises SSA’s policy for filing subsequent applications where a prior application is pending at the Appeals Council. 76 Fed. Reg. 45309 (July 28, 2011). Available at http://www.gpo.gov/fdsys/pkg/FR-2011-07-28/pdf/2011-19103.pdf.

Under SSR 11-1p, which is effective today, SSA “will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.” This SSR does not change SSA’s policy where an appeal is pending in federal court. In those cases, the claimant may file a new application while the court case is pending. According to SSA, SSR 11-1p will not apply to subsequent applications that were filed before July 28, 2011.

Key provisions of SSR 11-1p:

A claimant who wants to file a new disability claim under the same title and of the same benefit type will have to choose between continuing with the administrative appeal or declining to pursue administrative review and filing a new application.
If the choice is to purse the administrative appeal, SSA will not accept the subsequent application.
Additional evidence reporting a new medical condition or a worsening of existing medical conditions can still be submitted. If submitted to an SSA Field Office, the evidence will be forwarded (in most cases, electronically) to the office handling the claim, e.g., the ODAR hearing office or the Appeals Council.
If the claimant decides to pursue the first claim and it is pending at the Appeals Council and additional evidence is submitted, the Appeals Council will first determine if the evidence relates to the period on or before the date of the ALJ hearing decision. If it does relate to that period, the Appeals Council will consider it with the rest of the record. See 20 C.F.R. §§ 404.970(b) and 416.1470(b). In Region I states, see 20 C.F.R. § 405.373.
If the new and material evidence relates to the period on or before the date of the hearing decision and “shows a critical or disabling condition, the Appeals Council will expedite its review of your pending claim.”
If the additional evidence relates to the period after the date of the ALJ decision, the Appeals Council will return the evidence to the claimant per 20 C.F.R. §§ 404.976(b) and 416.1476(b).
The evidence will be returned when the Appeals Council takes action on the appealed claim. The notice from the Appeals Council will inform the claimant that “under certain circumstances,” SSA will consider the date the request for review was filed as the protective filing date for the new claim. To be covered by the protective filing date, new Title II applications will need to be filed within six months of the date of the Appeals Council notice; new SSI claims will need to be filed within 60 days of the notice. Id.The new application can be filed only after the Appeals Council completes action on the request for review of the first claim.
If the claimant decides not to pursue further review of the pending claim, a new application can be filed. However, the claimant will need to withdraw the request for review. See 20 C.F.R. §§ 404.971 and 416.1471.

Video Hearings

Colorado Social Security Law has a post up about video hearings being done from lawyers offices. I agree that the concerns about scripting and coaching are off base, but I share the concern about video quality. I also think that being in my office might diminish the seriousness of the hearing. A social security hearing is THE most important event in my clients life, and I think it should be treated as such.

I am not the biggest fan of the video hearing. I have adjusted and have certainly done more than my fair share. However, the last video hearing we attended had a bad feed. You literally could not see the judge– he was just a blob of pixels that talked. It was difficult to see his expressions and to feel as if we were headed in the right direction. Its hard to ask for a continuance though, as the client has waited so long to be heard. I also had a hearing with a burn victim who wore “sleeves” that the burn center directed him to wear. To the judge it just looked like he had on a black long-sleeve undershirt. Fortunately we were able to describe and explain to the judge why he was wearing them, but I still was concerned she couldn’t see the effect of the scarring and his tightened skin. It is one thing to read about it and entirely another to see it with your own eyes– to see the pain in his face when he tried to move his arm past a certain point.

I really do want to speed up claims, my clients deserve to have a hearing in less than two years. I’m not convinced that this is the right direction though.

Expungement/Pardon Workshop Offered in Florence

All walks of life may have a criminal incident in their past that they would like to clear from their record. Representative Terry Alexander, the Solicitor’s office and the SC Dept. of Probation Parole, and Pardon Services will sponsor an Expungement/Pardon Workshop at the Florence County Library on Tuesday March 30, 2010 from 10:00 a.m-12:00 p.m.

This leads to the question, does your criminal history affect your Social Security disability case? The answer is that it depends. This is something I would look at on a case by case basis.

If you are currently receiving benefits and get sent to jail, it is more than likely that your benefits will stop:

The Code of Federal Regulations provides in 404.468 Nonpayment of benefits to prisoners.

(a) General. No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.
(b) Felonious offenses. An offense will be considered a felony if—
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year.
(c) Confinement. In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).
(d) Vocational rehabilitation exception. The nonpayment provision of paragraph (a) of this section does not apply if a prisoner who is entitled to benefits on the basis of disability is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for the individual by court of law. In addition, the Commissioner must determine that the program is expected to result in the individual being able to do substantial gainful activity upon release and within a reasonable time. No benefits will be paid to the prisoner for any month prior to the approval of the program.
[49 FR 48182, Dec. 11, 1984, as amended at 62 FR 38450, July 18, 1997]

Fortunately, the benefits to a claimants family will not stop during the period of incarceration.

H.R. 4532 signed into law

From NOSSCR:

We are very pleased to report that H.R. 4532, the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010” was signed into law by President Obama on February 27, 2010. H.R. 4532 makes permanent (1) direct payment of attorney’s fees in SSI cases; and (2) the program by which certain nonattorneys become eligible for direct payment of fees in Title II and SSI cases. H.R. 4532 made no changes other than removal of the previous “sunset” date. These two provisions are now permanent.

Compassionate Allowances expanded

38 new compassionate allowances have been approved by the Social Security administration.  These allowances are for diseases that are generally progressive and from which a patient is not expected to cover.  (Source: Wall Street Journal)

The previous list of compassionate allowances is here on the Social Security Website.

The 38 new allowances are:
1 Alstrom Syndrome
2 Amegakaryocytic Thrombocytopenia
3 Ataxia Spinocerebellar
4 Ataxia Telangiectasia
5 Batten Disease
6 Bilateral Retinoblastoma
7 Cri du Chat Syndrome
8 Degos Disease
9 Early-Onset Alzheimer’s Disease
10 Edwards Syndrome
11 Fibrodysplasia Ossificans Progressiva
12 Fukuyama Congenital Muscular Dystrophy
13 Glutaric Acidemia Type II
14 Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
15 Hurler Syndrome, Type IH
16 Hunter Syndrome, Type II
17 Idiopathic Pulmonary Fibrosis
18 Junctional Epidermolysis Bullosa, Lethal Type
19 Late Infantile Neuronal Ceroid Lipofuscinoses
20 Leigh’s Disease
21 Maple Syrup Urine Disease
22 Merosin Deficient Congenital Muscular Dystrophy
23 Mixed Dementia
24 Mucosal Malignant Melanoma
25 Neonatal Adrenoleukodystrophy
26 Neuronal Ceroid Lipofuscinoses, Infantile Type
27 Niemann-Pick Type C
28 Patau Syndrome
29 Primary Progressive Aphasia
30 Progressive Multifocal Leukoencephalopathy
31 Sanfilippo Syndrome
32 Subacute Sclerosis Panencephalitis
33 Tay Sachs Disease
34 Thanatophoric Dysplasia, Type 1
35 Ullrich Congenital Muscular Dystrophy
36 Walker Warburg Syndrome
37 Wolman Disease
38 Zellweger Syndrome