If an adult has a severe medical condition that began before age 22, they may be eligible for Childhood Disability Benefits, also known as Disabled Adult Child (DAC) benefits, based on their parent’s Social Security earnings record. Under current law, even a single month of substantial gainful activity can make someone ineligible for future DAC benefits.

Senators Ron Wyden (D-OR) and Bill Cassidy (R-LA) and Representatives John Larson (D-CT) and Tom Reed (R-NY) introduced the bipartisan Work Without Worry Act (S. 2108/H.R. 4003). This legislation will ensure that these young adults with disabilities will not risk their future benefits by attempting to work.  Even if someone works enough to become insured based on their own earnings, the bill would allow them to receive the larger of the benefits from either their parent’s work history or the benefit from their own work history.   

Social Security is financed through a dedicated payroll tax. Employers and employees each pay 6.2 percent of wages up to the taxable maximum of $142,800 (in 2021), while the self-employed pay 12.4 percent.

In 2019, $944.5 billion (89 percent) of total Old-Age and Survivors Insurance and Disability Insurance income came from payroll taxes. The remainder was provided by interest earnings $80.8 billion (7.6 percent) and revenue from taxation of OASDI benefits $36.5 billion (3.4 percent).

The payroll tax rates are set by law, and for OASI and DI, apply to earnings up to a certain amount. This amount, called the earnings base, rises as average wages increase.

Field Office Closings

July 14, 2021

SSA has closed numerous field offices in recent years. A New York Times article by Mark Miller discusses the impact of those closures:

2019 study that found that field office closings reduced disability applications by 10 percent — and the number of new recipients by 16 percent in affected areas. The closings also disproportionately discouraged low-education and low-earning applicants from applying, the study found, because of longer wait times at offices that were still open.

In the 10-year period Dr. Deshpande studied, Social Security closed 118 field offices, a cost-cutting move. She estimated that during that period, a total of 786,000 applicants for disability insurance and S.S.I. were discouraged from applying.

The impact of closing all field offices during the pandemic has been far greater, Dr. Deshpande said. “You’d probably need to multiply the estimates from the paper by a few times to see the effect of closing all the offices,” she said. “The 10 percent decline we measured took place with neighboring offices absorbing some of the applicants. It’s likely a much larger effect with all the field offices closed.”

Agency data shows a 29 percent decline in S.S.I. awards from July 2020 to April 2021 compared with the same period a year earlier, and disability awards are down 17 percent over that period. Taken together, up to 330,000 people will miss out on these benefits over a one-year period, according to an analysis of agency data by David Weaver, a former associate commissioner in Social Security’s Office of Research, Demonstration and Employment Support.

NOTE: The content below was shamelessly stolen from the New York Times. It is cut from an article written by Mark Miller, a well-respected journalist.

The pandemic abruptly closed the agency’s 1,200 offices, and officials are considering how to move forward. One issue: Without the offices, fewer low-income seniors sought benefits.

When the pandemic struck last year, the Social Security Administration shut down its national network of more than 1,200 offices as it scrambled to protect the public and its employees from the coronavirus.

The agency, which served 43 million visitors in those offices in 2019, was forced to meet immense technological and administrative challenges practically overnight as it shifted to an almost completely remote operation.

Social Security’s consideration of a larger role for telework is a sharp departure from its stance in November 2019, when it ended a work-from-home pilot program. In addition, it is expanding the use of “express interviews” at the offices, aimed at minimizing the time people need to spend there. Another change: a new option to enroll for Medicare Part B online, available to people 65 and up who lose jobs that provided health insurance. Previously, those applications needed to be made by phone or mail.

But there have been problems.

There has been a sharp drop in applications for S.S.I., and for disability insurance. S.S.I. is an important tool for reducing poverty among the oldest Americans, and its beneficiaries are disproportionately people of color. For example, 50 percent of S.S.I. recipients 65 or older in 2017 were African American or Hispanic, and about 15 percent were Asian American, according to a new Census Bureau report.

“The drastic drop in S.S.I. applications and awards is deeply disturbing,” said Nancy Altman, president of Social Security Works, an advocacy group. “Generally, those numbers rise in a recession. It means that too many poor seniors and people with disabilities are not getting the help they desperately need.”

One issue that has prompted criticism is the agency’s requirement that sensitive documents, such as drivers’ licenses and birth and death certificates, which are used for verifications, be sent to S.S.A. via mail. The agency has relaxed some of these requirements, and tested drop boxes placed outside the offices to collect such paperwork. But during a recent Senate Finance Committee hearing on the agency’s pandemic customer service, Senator Ron Wyden, Democrat of Oregon and chairman of the committee, said he wasn’t satisfied with that.

“We can’t have people’s original documents flying around in the mail or putting them into a drop box and wondering when they will be returned,” he said.

Long before the pandemic, Social Security was trimming the number of field offices, and closed 67 around the country beginning in 2010. That move concerned consumer advocates, especially from an equity and access standpoint. While a great deal of routine Social Security business is now transacted via its website, field office staff provide in-person assistance on complex matters, in particular on applications for disability insurance and S.S.I., says Manasi Deshpande, an assistant professor of economics at the University of Chicago.

“Especially for people with lower socioeconomic status, being able to get in-person information and assistance with the application is critical to their decision to apply,” Dr. Deshpande said. “Without it, they just don’t apply.”

Summer Vacation

June 30, 2021

The Blog is on a break while I take my kids to the Pacific Northwest and visit Seattle, Mount Rainier National Park, Olympic National Park and North Cascade National Park.

I’ll be back in the office the week of July 4th. Happy Birthday USA!

SSI Restoration Act

June 23, 2021


Representative Raul Grijalva (D-AZ) and Senator Sherrod Brown (D-OH) have reintroduced their Supplemental Security Income (SSI) Restoration Act.  This legislation, if enacted, would make numerous updates and improvements to the SSI program including, but not limited to:

  • Increasing the federal benefit rate to 100% of the federal poverty level
  • Updating the general income disregard to $128 per month, the earned income disregard to $416 per month, and the asset limit to $10,000 for individuals and $20,000 for couples, with inflation adjustments for each of these
  • Repealing penalties for in-kind support, resource transfers, and state taxes
  • Eliminating dedicated accounts for children, the “couples rate” when married people both get SSI, and installment payments of retroactive benefits

Please click below to send a letter to your Members of Congress asking them to co-sponsor this crucial legislation today! 

Click here: Write Your Rep 

Paul Eaglin, Esq. is a long-standing member of NOSSCR and served on the board of directors for several years representing first the Ninth Circuit and then the Second Circuit. Paul has practiced in North Carolina, Alaska, and New York, and represents plaintiffs for Social Security benefits at the appellate level in multiple Federal Circuit and District courts nationwide. He is never too busy to help NOSSCR members with questions or issues and gives freely of his time and knowledge. He possesses a deep commitment to people with disabilities and fellow disability attorneys.

I am lucky to call Paul not only a colleague but a friend and I send my hearty congratulations to him on this well deserved award.

On May 28, the Biden Administration released its long-awaited 2022 Budget request. The budget calls for a 9.7% increase in funding for the Social Security Administration (SSA), bringing its total funding level to $14.2 billion, an increase of $1.3 billion from last year. Additionally, the President’s budget backed away from its earlier proposal to aggressively fund continuing disability reviews (CDRs). As noted, on page 60 of the President’s Analytical Perspectives “the Budget excludes funding for the now withdrawn proposed rule regarding increasing the number and frequency of CDRs.”

The Biden administration is asking agencies to submit by July 19 finalized plans for returning federal workers to their offices. 

The administration’s Safer Federal Workforce Task Force sent an email to the President’s Management Council and agency chiefs of staff on Tuesday with an update on the return to workplaces process.

“Agencies will need to have finalized their plans for both reentry and post-reentry procedures and policies by July 19,” said a task force email to agencies on Tuesday, sent in collaboration with the Office of Management and Budget, the Office of Personnel Management and the General Services Administration. “Agencies may submit earlier at their discretion.”

Covid as a Disability

June 2, 2021

The Social Security Administration has recently issued an Emergency Message that outlines how SSA should be examining Covid cases:

COVID-19; the EM just states that “existing policy” should be followed to determine whether COVID-19 is a severe impairment.

In regards to the duration requirement for disability, the EM states that “[i]f a person recovers from acute COVID-19 with no residual symptoms, limitations, or restrictions, [SSA] generally would not expect COVID-19 to meet the duration requirement. Some people may have symptoms associated with COVID-19 that last for months or even longer after recovery from acute illness. In these cases, COVID-19 may meet the duration requirement when a person develops:

  • Long-term effects of COVID-19,
  • One or more new MDIs caused by COVID-19

OR

  • Any existing MDI(s) have worsened becauseof COVID-19.

The EM clarifies that while two or more unrelated MDIs cannot be combined to meet the duration requirement, “if COVID-19 causes a new MDI(s) or worsens an existing MDI(s), [SSA] consider[s] these MDIs related.” The EM also contains information about projecting the severity of COVID-19 “if it is unclear whether or when the MDI(s) will resolve” and about cases requiring medical deferment “to determine whether COVID-19, or a new or worsening MDI(s) resulting from COVID-19, meets the 12-month duration requirement.”

EM-21032 explains that “COVID-19 is a new disease and the trajectory of improvement or worsening may be difficult to predict in some cases. If the medical evidence indicates a person is in hospice or palliative care with no possibility of recovery, [SSA] may be able to make a favorable determination without medical deferral.” EM-21032 also states that while most cases involving COVID-19 do not result in death, “in some cases, a person may die within in a short period after contracting the COVID-19 infection.” Therefore, the EM reiterates that “[SSA] may establish disability for a person who has an incapacitating MDI that results in death before it has lasted 12 months (DI 23510.001B). For COVID-19 resulting in death, follow existing policy for processing death cases (DI 23510.000).”

For evaluating symptoms of COVID-19, the EM states that “COVID-19 symptoms may range from no symptoms to severe illness. In cases when long- term symptoms develop, those symptoms may include, but are not limited to, fatigue, shortness of breath, joint pain, and difficulty thinking and concentrating.” The EM then instructs to “[f]ollow existing policy for evaluating symptoms related to COVID-19, or any new or worsening MDI as a result of COVID-19 (DI 24501.021)” and notes that “[i] ssues related to the COVID-19 pandemic, including, but not limited to, evictions, medical facility closures, quarantines, job loss, and insurance loss, may affect a person’s ability to seek treatment to minimize symptoms. Consider whether a person’s lack of treatment is the result of these COVID-19 related issues when evaluating the consistency of his or her statements with the objective medical evidence (DI 24501.021C).”

For evaluating COVID-19 at step three, EM-21032 explains that “COVID-19, on its own, cannot meet a listing, but it may equal a listing as an unlisted impairment or as part of a combination of impairments (DI 24508.010). COVID-19 may affect respiratory, cardiovascular, renal, neurological, or other body systems. In most cases, the listing relevant to a new MDI(s) caused by COVID-19, or any MDI(s) that has worsened because of COVID-19 will be the appropriate listing to consider.”

When making the RFC assessment, the EM states that “[SSA] must [] consider functional limitations arising out of any new MDI(s) caused by COVID-19, or any MDI(s) that has worsened because of COVID-19 in the RFC. When assessing the RFC, evaluate both stamina and endurance based on individual case facts (DI 24510.005C.2). In the situation when the person’s MDI(s) does not meet or equal a listing, but evidence clearly indicates he or she is unable to sustain any work related activities for a continuous period, consider an RFC for complete inability to do sustained work-related activity (DI 24510.057B.2.b).” The EM notes that SSA does “not include in the RFC any prophylactic limitations or restrictions intended to limit possible exposure to COVID-19 or any other infectious disease (e.g., face covering, telework, etc.). For example, a recommendation that a person must telework due to high medical risk for COVID-19 is not a functional limitation resulting from an MDI or impairment-related symptom (DI 24510.001A.1).”

EM-21032 explains that existing policy should be followed for determining the established onset date (EOD) and notes that the EOD may need to be inferred “when medical evidence from the acute COVID-19 infection is not available.” EM-21032 also explains that since COVID-19 is a new disease, “the trajectory of improvement may be difficult to predict in some cases,” and notes that existing policy should be followed when scheduling diaries for continuing disability reviews.

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