The final rule that makes changes to the listing for Congenital Disorders that Affect Multiple Body Systems (Listing 110.00) went into effect on April 5, 2013.

The final rule that makes changes to the listing for Congenital Disorders that Affect Multiple Body Systems (Listing 110.00) went into effect on April 5, 2013. The disorders evaluated under this listing and affected by the changes include non-mosaic Down syndrome and catastrophic congenital disorders such as anencephaly, cyclopia, Patau syndrome, and Edwards’ syndrome, among others.

Non-mosaic Down syndrome is listed under 110.06. The evidence the Social Security Administration (SSA) looks at when evaluating a claim under 110.06 centers around laboratory findings, specifically a report of karyotype analysis, the determinative test to establish non-mosaic Down syndrome. However, if you do not have a karyotype analysis documenting that you have non-mosaic Down syndrome, you may still be found disabled under 110.06B or 110.06C. To meet a listing under 110.06B, SSA needs a physician’s report that states that your karyotype evidence is consistent with prior karyotype analysis, and that you have the distinctive facial or other physical features of Down syndrome. Under 110.06C, a claimant may be found disabled even without having information about prior karyotype analysis if SSA receives a physician’s report stating that you have the distinctive facial or other physical features of Down syndrome and evidence that your functioning is consistent with a diagnosis of non-mosaic Down syndrome.

Also effected by the new rule are catastrophic congenital disorders, which SSA evaluates under listing 110.08. Listing 110.08 is broken down into two parts: A and B. To determine whether you meet one of these listings, SSA requires one of the following:

1. A laboratory report of the test that documents your disorder, signed by aphysician.

2. A laboratory report of the test that documents your disorder that is not signed by a physician and a report from a physician saying that you have the disorder.

3. A report from a physician that states that you have the disorder and that you had definitive testing that documented your disorder.

If SSA does not have definitive laboratory evidence, you may still be found to meet 110.08A or B if SSA has a report from a physician that states that you have the disorder and that you have the typical clinical features of that disorder, and other evidence that supports that diagnosis.

As former Commissioners of the Social Security Administration (SSA), we write to express our significant concerns regarding a series recently aired on This American Life, All Things Considered, and National Public Radio stations across the U.S. (“Unfit for Work: The Startling Rise of Disability in America”). Our nation’s Social Security system serves as a vital lifeline for millions of individuals with severe disabilities. We feel compelled to share our unique insight into the Social Security system because we know firsthand the dangers of mischaracterizing the disability programs via sensational, anecdote-based media accounts, leaving vulnerable beneficiaries to pick up the pieces.

Approximately 1 in 5 of our fellow Americans live with disabilities, but only those with the most significant disabilities qualify for disability benefits under Title II and Title XVI of the Social Security Act. Title II Old Age, Survivors, and Disability Insurance (DI) benefits and Title XVI Supplemental Security Income (SSI) benefits provide critical support to millions of Americans with the most severe disabilities, as well as their dependents and survivors. Disabled beneficiaries often report multiple impairments, and many have such poor health that they are terminally ill: about 1 in 5 male DI beneficiaries and 1 in 7 female DI beneficiaries die within 5 years of receiving benefits. Despite their impairments, many beneficiaries attempt work using the work incentives under the Social Security Act, and some do work part-time. For example, research by Mathematica and SSA finds that about 17 percent of beneficiaries worked in 2007. However, their earnings are generally very low (two-thirds of those who worked in 2007 earned less than $5,000 for the whole year), and only a small share are able to earn enough to be self-sufficient and leave the DI and SSI programs each year. Without Social Security or SSI, the alternatives for many beneficiaries are simply unthinkable.

The statutory standard for approval is very strict, and was made even more so in 1996. To implement this strict standard, Social Security Administration (SSA) regulations, policies, and procedures require extensive documentation and medical evidence at all levels of the application process. Less than onethird of initial DI and SSI applications are approved, and only about 40 percent of adult DI and SSI applicants receive benefits even after all levels of appeal. As with adults, most children who apply are denied SSI, and only the most severely impaired qualify for benefits.

Managing the eligibility process for the disability system is a challenging task, and errors will always occur in any system of this size. But the SSA makes every effort to pay benefits to the right person in the right amount at the right time. When an individual applies for one of SSA’s disability programs, the agency has extensive systems in place to ensure accurate decisions, and the agency is home to many dedicated public servants who take their ongoing responsibility of the proper stewardship of the programs very seriously. Program integrity is critically important and adequate funds must be available to make continued progress in quality assurance and monitoring. In the face of annual appropriations that were far below what the President requested in Fiscal Year 2011 and Fiscal Year 2012, the agency has still continued to implement many new system improvements that protect taxpayers and live up to Americans’ commitment to protect the most vulnerable in our society. It is true that DI has grown significantly in the past 30 years. The growth that we’ve seen was predicted by actuaries as early as 1994 and is mostly the result of two factors: baby boomers entering their highdisability years, and women entering the workforce in large numbers in the 1970s and 1980s so that more are now “insured” for DI based on their own prior contributions. The increase in the number of children receiving SSI benefits in the past decade is similarly explained by larger economic factors, namely the increase in the number of poor and low-income children. More than 1 in 5 U.S. children live in poverty today and some 44 percent live in low-income households. Since SSI is a means-tested program, more poor and low-income children mean more children with disabilities are financially eligible for benefits. Importantly, the share of low-income children who receive SSI benefits has remained constant at less than four percent.

Yet, the series aired on NPR sensationalizes this growth, as well as the DI trust fund’s projected shortfall. History tells a less dramatic story. Since Social Security was enacted, Congress has “reallocated” payroll tax revenues across the OASI and DI trust funds – about equally in both directions – some 11 times to account for demographic shifts. In 1994, the last time such reallocation occurred, SSA actuaries projected that similar action would next be required in 2016. They were right on target.

We are deeply concerned that the series “Unfit for Work” failed to tell the whole story and perpetuated dangerous myths about the Social Security disability programs and the people helped by this vital system. We fear that listeners may come away with an incorrect impression of the program—as opposed to an understanding of the program actually based on facts.

As former Commissioners of the agency, we could not sit on the sidelines and witness this one perspective on the disability programs threaten to pull the rug out from under millions of people with severe disabilities. Drastic changes to these programs would lead to drastic consequences for some of America’s most vulnerable people. With the lives of so many vulnerable people at stake, it is vital that future reporting on the DI and SSI programs look at all parts of this important issue and take a balanced, careful look at how to preserve and strengthen these vital parts of our nation’s Social Security system.

Sincerely,

Kenneth S. Apfel

Michael J. Astrue

Jo Anne B. Barnhart

Shirley S. Chater

Herbert R. Doggette

Louis D. Enoff

Larry G. Massanari

Lawrence H. Thompson

How your assets and income may affect your eligibility to receive Supplemental Security Income benefits.

Current income and assets do not affect one’s eligibility to receive Social Security Disability benefits (SSDI) because it is paid for out of workers’ tax contributions.

If you do not qualify for SSDI benefits but are suffering from a disabling condition, you may qualify for Supplemental Security Income (SSI). SSI is another federal program but works differently than SSDI. SSI is need-based program for those individuals with little to no income and low resources.

How much can you own in assets and still qualify for SSI? As of 2013, the cap on income and assets for an individual is $2,000 and for a couple is $3,000. However, there are certain assets that do not count towards an individual’s and couple’s assets. For example, the house that you live in and the car you drive for transportation will not count toward your amount of assets.

Also, the Social Security Administration (SSA) calculates the income limit for SSI program based on the federal benefit rate (FBR). Currently, the FBR is $710 per month for individuals and $1,066 for couples. Therefore, to qualify for SSI, your countable monthly income cannot exceed the FBR. The SSA only counts a portion of your monthly income when determining if you are eligible for SSI benefits. This can make it difficult for you to figure out whether your income falls under the SSI limit. Speaking with an attorney can help you determine if your income and assets fall within SSI limits and whether you are eligible to receive SSI benefits.

If you have had or are facing the possibility of having a liver transplant, it is a strong possibility that you will be eligible for Social Security Disability benefits as a result of this procedure. A Liver Transplant is a condition that qualifies an individual to receive disability benefits under the Social Security Administration’s listing manual. Put simply, a person who receives a liver transplant will automatically be presumed to be disabled for a period of 1 year following the operation, and will receive disability benefits. After the year is up, you still may be eligible to receive your benefits, but the Social Security Administration will need to reevaluate your disability claim. The Social Security Administration will look to see if you have any continuing medical issues that effect your ability to work, and they do this by examining any complications from your transplant, any rejection episodes, and the adequacy of your liver function following surgery. For more information, see Social Security Listing 5.09 and 5.00(D)(12). These can be accessed online here: http://www.ssa.gov/disability/professionals/bluebook/5.00-Digestive-Adult.htm#5_09.

Although a Liver Transplant typically qualifies a person to receive benefits, it is still a good idea to consult with an attorney about your case. The reality is that a majority of first-time applications for disability benefits are denied, and this could be a result of an error in paperwork or forms that go along with a claim for benefits. Many applicants denied their first time could have saved themselves a great deal of annoyance by consulting with an attorney at the beginning of their claim.

Each year the Social Security Administration (SSA) publishes an updated version of The Red Book, which serves as a source of information regarding employment related provisions of the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs. The most recent version of The Red Book was released in January 2013 and is available on SSA’s website at: http://www.socialsecurity.gov/redbook/. New to the 2013 Red Book are several Automatic Adjustments, including changes to the income threshold for Substantial Gainful Activity (SGA) and the Federal Benefit Rate (FBR), among other important numbers that disability claimants and professionals who serve those with disabilities should be aware of.

An individual who currently receives or is filing for SSI or SSDI should be aware of the effect working, or attempts to work, will have on their benefits or claim. One topic discussed in the 2013 Red Book is the Trial Work Period (TWP). The TWP allows disabled individuals to test their ability to work, without the possibility of losing their benefits. The TWP starts when you begin working or performing services. In order to qualify as the performance of “services”, monthly earnings must be more than $750 per month, or you must work more than 80 hours a month in self-employment. If an individual meets these requirements for 9 months out of a rolling 60 month period, then the TWP is complete. The 9 months do not need to be consecutive. During this TWP, an individual will continue to receive full disability benefits, regardless of the level of income earned, so long as a disabling impairment continues. If an individual completes the TWP, he or she would then enter the Extended Period of Eligibility (EPE), during which the claimant will continue to receive benefits if not working at the SGA level. It is important to note that only SSDI claimants are eligible for the TWP.

For a full explanation of the many employment support provisions of the SSI and SSDI programs, view the 2013 Red Book at http://www.socialsecurity.gov/redbook/.

On February 20, 2013, the Social Security Administration gave notice of a new rule on how a claimant’s use of drugs and alcohol affects their disability claim.  Generally, use of drugs and alcohol will strongly undermine a clam for disability.  However, the issue gets complicated when people self medicate, and when people have conditions that would be disabling regardless of whether there was any drug or alcohol usage.

The new regulation ( SSR 13-2p ) addresses these issues stating clearly that the Social Security Administration will still examine whether drug addiction or alcoholism is a contributing factor material to the determination of disability, and whether a claimant would still be disabled if he or she stopped using drugs or alcohol.  These issues are often summarized as whether the drugs and alcohol are “material” to the disability claim.

From a technical point of view, which lawyers must adhere to, the new regulation references C.F.R. 404.1535 and 20 C.F.R. 416.935 which requires the adjudicator to apply the sequential process twice in order to delineate the effects of drugs or alcohol from other medically determinable impairments. During the first part of the process, the adjudicator will evaluate all the claimant’s impairments, including drugs and alcohol (DAA).  Then, during the second process, the adjudicator must evaluate whether a finding of disability would remain if the claimant stopped DAA. If the answer is “no”, then the DAA is found to be material to a determination of disability and the claimant will be denied benefits. To determine materiality, SSR 13-2p outlines a DAA evaluation process through a series of six steps that must be applied throughout the sequential processes. The six steps include and may be considered throughout the evaluation in any order:

1. Does the claimant have DAA;

2. Is the claimant disabled considering all impairments including the DAA;

3. Is DAA the only impairment;

4. Is the other impairment(s) disabling by itself while the claimant is dependent upon abusing drugs or alcohol;

5. Does the DAA cause or affect the claimant’s medically determinable impairments; and

6. Would the other impairments improve to the point of non-disability in the absence of DAA.

A significant focus on this new regulation is that it requires a higher degree of medical information to determine if the DAA is a material factor to disability. Specifically, SSA will only make a DAA materiality determination when an acceptable medical source finds that the claimant suffers from a Substance Use Disorder. A Substance Use Disorder is diagnosed in part by the presence of maladaptive use of alcohol, illegal drugs, prescription medication, and toxic substances (S.S.A Feb. 20, 2013). But SSR 13-2p now specifically excludes from Substance Use Disorders a claimant’s addiction to prescription medications taken as prescribed, and the claimant’s history of or current occasional maladaptive drug or alcohol use.  Additionally, the new regulation provides for a new aspect of the materiality determination in Step 6 above. SSA can deny a claim if it can be shown that the claimant’s impairments may improve to the point of non-disability in the absence of DAA.

It should also be noted that periods of no drug/alcohol use are looked at by the Social Security Administration, including whether disability symptoms continue or stop during this period of abstinence.   Acceptable medical sources are not necessary to make a determination that a claimant’s work-related functioning would improve in the absence of DAA and opinions of family members and “other” medical sources may be considered.

The SSA gave the following as examples of impairments that are likely to improve in the absence of DAA: alcoholic hepatitis, fatty liver, and alcoholic cardiomyopathy. Further, SSA states in SSR 13-2p that it does not know of any research data that it can use to predict reliably that any given claimant’s cooccurring mental disorder would improve, if the claimant were to stop using drugs or alcohol (S.S.A Feb. 20, 2013).

Our law firm recognizes the difficulties in having a disability and then having an accusation that the disability was caused by the alcohol or drugs.  We also must recognize SSA looks unfavorably towards drug or excessive alcohol usage. These situations are often complicated and we address them on an individual basis with the intent of proving that the underlying disability is the true cause for not being able to work.

For more information, see Social Security Ruling, SSR 13-2p; Titles II and XVI: Evaluating Cases involving Drug Addiction and Alcoholism (DAA) (S.S.A Feb. 20, 2013)(effective March 22, 2013; rescinds and replaces SSR 82-60) or call our offices and speak with an attorney.

Your Social Security check will no longer come via snail mail starting March 1.

In less than two months, the government will stop sending paper checks for Social Security, disability and other benefits in an effort to cut costs. Instead, the Treasury Department will distribute funds electronically, either via direct deposit or on a prepaid “Direct Express” card.

Around 93 percent of recipients currently receive their payments electronically, but 5 million checks are mailed each month, according to the Treasury. Paper checks cost the government about $4.6 million per month, CNN Money reported. Over the next 10 years, that total cost to taxpayers would add up to $1 billion.

The Treasury has launched an advertising campaign to get the word out about the March 1 deadline. Those who don’t switch to electronic payments will still receive paper checks, but will be under more pressure to make the change.

“We won’t interrupt their payment, but we will be communicating with them in a more personal direct way,” Walt Henderson, a Treasury official, told CNN.

Not everyone is embracing the end of paper checks. The check cashing industry, which will lose business because of the switch to electronic payments, argues that forcing people to use debit cards could mean more fees and lost money for some of the poorest benefit recipients.  

Quick Facts on Social Security’s 1.7% COLA for 2012 The Social Security Administration has just announced that retirement and disability beneficiaries will receive a 1.7% cost-of-living adjustment (COLA) beginning in their January 2013 checks. Social Security benefits are automatically adjusted to keep up with the cost of living.

Key points from Social Security’s release:

• The 2012 COLA will be 1.7%. That compares to a 3.6% increase for 2011 and no increase at all for 2009 or 2010.
• This 1.7% increase will take effect for the December benefits, which are payable in January.
• The COLA calculation is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), which is produced by the Bureau of Labor Statistics (BLS).

An important point affecting workers:

• The level of taxable maximum earnings for Social Security will increase to $113,700 in 2013, from the current maximum of $110,100 in 2012. About 6 percent of workers will be affected by this increase.

For more information on taxable earnings and the COLA calculation, see information provided by the Bureau of Labor Statistics and the Social Security Administration.

THE ADA, THE DISABLED, AND THE UNEMPLOYED.

The Americans with Disabilities Act (ADA) was signed into law 22 years ago.  Great strides have been made – buses and buildings are now accessible, the disabled have employment protections- but more still needs to be done. In this time of economic struggle, the disabled continue to be hit  hard :

• More than one-half of Americans with any disability are unemployed and more than 70 percent with significant disabilities are unemployed;
• During the recent recession the non-disability work force shrank 2 percent, while the number of working disabled fell over 10 percent; and
• Only 5 percent of the nearly 2.5 million people employed by the Federal Government in 2010 were individuals with disabilities.

However, all news is not grim. In 2010, President Obama called on the Federal Government to hire an additional 100,000 workers with disabilities by 2015 (Executive Order 13548).  The Labor Department has issued a proposed ruling calling on federal contractors to make people with disabilities at least 7 percent of their work force. Additionally, private companies like Walgreens are setting goals of hiring individuals with disabilities and persuading other companies to do the same. (Walgreens has hired 1000 people with disabilities in the past four years.)

As Delaware Gov. Jack Markell, a Democrat who was elected chairman of the National Governors Association said last week,  “…It doesn’t matter whether you were born with additional challenges to face or — in the case of our wounded veterans for example – acquired them later in life. What matters is what you have to offer.”

On December 19, 2011, the Office of Disability Adjudication and Review (ODAR) instituted a new policy in which the identity of the Administrative Law Judge (ALJ) assigned to a claimant’s case will not be revealed until the day of the claimant’s actual hearing. It appears that the reason for this new policy is in response to representatives objecting to certain ALJ’s, specifically some of the ALJs at the National Hearing Offices, and some abuse by a particular national (1-800) law firm.

This policy is an attempt to deal with a very specific problem but now creates a new set of issues.  Generally speaking, if a hearing is postponed, the same ALJ retains jurisdiction of the case and the hearing will be rescheduled with the same judge. However, if a person objects to a video hearing, which is to be held by the National Hearing Office, then the file will be transferred to the claimant’s local ODAR office and a local ALJ will be assigned the case.  Most representatives, including our office, do not object to the ALJ or the video hearings by the National Hearing office because the goal is obtain a hearing as quickly as possible so claimants do not have to wait any longer than necessary for their hearings.  However, because of the very questionable actions of a few, ODAR has responded with this sweeping new policy.

This policy, may prevent some abuse, but has caused great difficulties for the representatives the claimants, and even the Judges.  A number of Judges (ALJs) require prehearing memos or briefs in a specific format. We welcome the opportunity to be able to clearly explain our client’s position and need for disability benefits. However, if you do not know which  ALJ is assigned to the case, then you cannot provide that ALJ with the correctly formatted memo or brief. In addition, each ALJ has a particular way in which they conduct their hearing: some require more thorough testimony and some have a specific focus on the key issues. When you know who the ALJ will be, you are better able to prepare for each and every ALJ, including time considerations. Some ALJ’s hearings take longer than other’s hearings and more time is needed for those individuals assigned to those particular hearings.

From the claimant’s perspective, it is assuring for us to be able to tell our clients what to expect during the course of the hearing. But with the new policy, the representative can only provide the claimant with generalities. The more comfortable a client is, the more likely it is that the testimony will be candid, on point, and the hearing process will be more efficient. This is an especially important consideration for those claimants who are already anxious and nervous about their hearing, or have conditions which don’t respond well to pressure.  A concern is that the new policy diffuses the twin goals of assuring fairness to the claimant, and the efficient administration of justice.    In the interim, the ones who abused the system seem to have been forgotten.