Legal News

In September 2020 Social Security announced it would begin to offer Social Security disability claimants the opportunity to appear at disability hearings through a new online video format, but since then most hearing offices were not offering that option until recently. Below is a portion of the press release announcing the new option. The Social Security Administration announced a new service for people awaiting a hearing decision. In addition to telephone hearings, Social Security will offer the opportunity for an online video hearing using the Microsoft Teams platform beginning this fall. This new free service will allow applicants and their representatives to participate in the hearing from anywhere they have access to a camera-enabled smartphone, tablet, or computer. This stable and secure online platform allows the Social Security judge to see and interact with applicants and their representatives just like an in-person hearing, while maintaining privacy of the claimant’s information. Other hearing experts, such as medical or vocational experts, may participate as well. Social Security has been conducting appeal hearings with Administrative Law Judges (ALJ) via telephone only since March, while offices remain closed to the public to protect the health and safety of the public and employees. The agency’s ALJs have held more than 180,000 telephone hearings since March, allowing the agency to continue to deliver critical customer service. For the new online video hearings, whether the device is a laptop, smartphone, or tablet on either iPhone or Android, people will experience a clear picture and audio of the ALJ and their representative during their hearing. For updates on the implementation and expansion of this new hearing service, and other Social Security information, please visit the agency’s COVID-19 web page at, www.socialsecurity.gov/coronavirus/. As the press release points out, until now most disability hearings have been conducted by phone. Each participant, the claimant, the claimant’s representative, the Administrative Law Judge (ALJ), and any witnesses all appeared in different locations by phone. This has been the practice since Social Security hearing offices were closed to the public in mid March and stopped doing in-person hearings due to the COVID-19 pandemic. When the new online video platform was announced Social Security Commissioner Andrew Saul said Social Security was looking at different ways to offer hearings to claimants. “The COVID-19 pandemic has highlighted the importance of finding new ways to serve the public,” said Commissioner of Social Security Andrew Saul. “For over a decade, the agency has used video hearings to get applicants their hearing decisions sooner. This advancement builds on that effort, making it easier and more convenient to attend a hearing remotely, particularly during the COVID-19 pandemic. To continue to ensure all participants’ safety, we expect online video hearings and telephone hearings will be the only two hearing options for the foreseeable future.” The new online video hearings will not be without any obstacles. Many people don’t have access to the needed technology and any time you add a new technological component to a process it increases the chances something will go wrong and hearings will need to be rescheduled. It is likely the number of disability hearing postponements will increase.  

Two recent rules that will make it more difficult to qualify for Social Security disability benefits were enacted, but they could be short lived and rescinded by the incoming Biden Administration. The first new rule now allows for Administrative Appeals Judges (AAJs) to conduct and adjudicate Social Security disability cases. Prior to this rule Administrative Law Judges (ALJs) were the only ones to conduct and adjudicate disability cases. Critics of the move believe that this will result in less people qualifying for disability benefits because AAJs are closely associated with the Social Security Administration and ALJs are independent from Social Security. It makes sense that critics would be wary of this move because AAJs might be more critical of disability cases than independent ALJs. The second rule involves Continuing Disability Reviews (CDRs). Social Security has implemented a new category for CDRs, which could result in more people being kicked off Social Security disability benefits. A CDR is done on a Social Security disability beneficiary after a specific period of time the beneficiary is on benefits, but Social Security expects to improve medically to allow the agency to take the benefits away. This new category, critics argue, will allow the agency to make it easier to take away benefits from people. Over the last four years of the Trump Administration qualifying for Social Security benefits have become harder to come by because of the rule and policy changes instituted. With President-Elect Joe Biden coming into office some speculate that Biden will rescind these rules. If Biden does make this move it would be beneficial to Social Security beneficiaries and people who are applying and going through the Social Security disability process.

Mistakes are a natural part of life and certainly the Social Security makes its share of them, but a December 11, 2020 report from Social Security’s inspector general shows that the agency has continued to miss paying people the benefits they deserve. The report showed that Social Security did not pay more than 27,000 eligible beneficiaries more than $50 million in benefits they were owed and more than 17,000 people missed out on more than $90 million in benefits because Social Security could not locate them. In an opinion piece from the Washington Post many critics of Social Security’s leadership said that the agency is mismanaged and is in need of new leadership. This is something President-Elect Joe Biden will likely consider when he is sworn into office in a few weeks. Nancy Altman, president of Social Security Works, an advocacy group that works to improve and maintain benefits said this oversight by Social Security is unacceptable. “It is important to emphasize that these are earned benefits that people are being deprived of through no fault of their own,” Altman said in the article from the Washington Post. U.S. Rep. John Larson, D-Connecticut, was also not pleased by the report. Larson is the chair of the Social Security subcommittee in the House said he plans to have hearings on this report in January. Larson, in the Washington Post piece said these mistakes by Social Security can’t continue. “Underpayments are just as important as overpayments,” Larson said “and SSA leaders need to pay as much attention to preventing and correcting underpayments as they do to overpayments.” Below is a report of the findings and recommendations of the report the inspector general released December 11, 2020. Findings SSA did not always take proper actions to pay underpayments due terminated beneficiaries. In December 2015, SSA improved systems controls to pay underpayments due deceased beneficiaries to eligible surviving spouses. However, this control does not identify underpayments due to all terminated beneficiaries. For the100 terminated beneficiaries in our sample, we found 39 had underpayments that should be paid to eligible beneficiaries; 25 were cases where SSA did not locate the beneficiaries or individuals who were eligible for the underpayments; 7 had erroneous underpayments that should have been corrected or removed from the Master Beneficiary Record; and 29 were correctly paid or resolved. This occurred because SSA employees established 74 percent of these underpayments manually, and SSA systems did not generate alerts after they were established. In addition, SSA’s corrective actions to address our prior audit recommendations were not sufficient to ensure it resolved and issued underpayments to eligible beneficiaries or individuals. Based on our random sample, we estimate SSA did not (1) issue payments to 27,724 eligible beneficiaries or individuals due approximately $52.1 million, (2) locate 17,772 beneficiaries or individuals eligible for approximately $90.4 million in payments, and (3) remove or correct erroneous payments totaling approximately $6.7 million recorded on the Master Beneficiary Record for 4,265 beneficiaries. Recommendations We made four recommendations for SSA to take corrective actions for underpayments due terminated beneficiaries. SSA agreed with our recommendations.

During the transition phase into President-Elect Joe Biden, whose administration will take over January 20, 2021 Biden has been briefed about national security matters, economic matters and domestic matters and recently Social Security Works released its transition report to the incoming Biden Administration. Social Security Works is an advocacy group that works to protect Social Security and improve the economic status of the disadvantaged. There are some strong recommendations in the transition report including the call to replace the entire leadership at Social Security and the recommendation that Social Security need to be strengthen, and benefits need to be increased. Below is the complete report issued to the Biden Transition team. These are not official recommendation, but the policies that Social Security Works would like to see implemented. INSTALLING NEW LEADERSHIP AT SSA IS ESSENTIAL On day one, President Biden should give Commissioner Andrew Saul the choice to immediately resign or be fired and require all other SSA political Schedule C appointees, including Deputy Commissioner David Black, to vacate their offices that day. The Biden-named Commissioner should be included in Cabinet meetings and serve on the Domestic Policy Council, which, among many other reasons, would demonstrate President Biden’s strong commitment to Social Security. IMPROVING ACCESS AND CUSTOMER SERVICE DURING AND POST-COVID The Biden administration should use the necessity of refurbishing the offices for safety as an opportunity to develop and showcase offices that will be welcoming, safe, and “green.” All offices should meet or exceed CDC safety guidelines, including the use of masks and other personal protective equipment, as well as the ability to maintain social distance. Opening offices serving communities of color, low-income areas, and other neighborhoods more likely to require in-person services should be a priority. All offices should be fully accessible to those with disabilities and employ staff that reflects the local community. The Biden administration should ensure that every penny of emergency payments provided under the CARES Act is received by all Social Security beneficiaries and SSI recipients. Through executive action, President Biden should extend the number of months over which the deferred contributions from Donald Trump’s FICA deferral must be repaid, so that the amounts withheld are much less burdensome. President Biden should work to ensure that Congress addresses the so-called COVID notch, and does so in such a way that no one’s benefits are reduced. SSA should review its policies with the goal of getting more money to beneficiaries and recipients, which, among other advantages will get more money into the economy, during the current crisis. ADDITIONAL ACTIONS TO PROVIDE THE FIRST-CLASS SERVICE AMERICANS The new SSA commissioner should prepare and issue a written policy that provides SSA employees with the clear understanding that high-quality, informed service is the most important job at SSA – and that job performance will be measured on this basis. The President should propose and vocally champion legislation consistent with his campaign promises. The Biden administration should withdraw or, at least freeze and assess, with the idea of reversing all harmful executive orders, regulations, and sub-regulatory rules. SSA should issue new regulations and take other steps to ensure that working families can more easily access the benefits they have earned and, once receiving benefits, that they are not subject to garnishment and – in fact – have their student loans cancelled, without tax liability. As a first step, the President and Commissioner should declare a moratorium on the garnishment of Social Security benefits by the federal government while the issue is examined and legislation is developed. SSA should fully restore the annual mailing of the Social Security Statement; and develop age-specific mailings. The Biden administration should protect the Office of the Chief Actuary to ensure its continued independence. It should take every step it can to ensure that Congress recognizes its expertise. SSA should develop a robust research agenda.

The National Organization of Social Security Claimants Representatives (NOSSCR) recently did an analysis on the reduction of Supplemental Security Income (SSI) applications being filed since Social Security offices closed in mid March due to the COVID-19 pandemic. The analysis shows just how much the pandemic has impacted the ability to file applications. Since March the number of SSI applications being filed has significantly dropped from 2019. As an example, applications for SSI were up by 10 percent in January compared to 2019 prior to the pandemic that forced Social Security to close its doors, but the decline in applications came soon after that. In March the number of SSI applications was down by 21 percent and even more, by 38 percent in April, compared to 2019. Unfortunately this is not a big surprise. Since April the volume of SSI applications has fluctuated, but has not come close to reaching the number of applications filed in any month of 2019. A significant portion of applications were filed in person at a Social Security office and with offices remaining mostly closed to the public this option is now limited. If an application can’t be filed in person for SSI there is only one other option, to apply by phone. This requires scheduling a phone interview with Social Security to apply for SSI, but as we’ve mentioned in previous blogs, phone service at Social Security is not stellar. It can be a time consuming process to try and schedule an SSI phone interview. Unlike a Social Security Disability Insurance (SSDI) application, people can’t apply for SSI online. Because SSI is a needs-based program, qualifying is dependent on meeting low income and asset rules. This type of application would be difficult to complete online, so the only real option now is for the application to be completed by phone.

The United States has already lost 160,000 people to COVID-19. Most people know only a small percentage of people infected with the coronavirus succumb to the virus, but that doesn’t mean there are no long-term effects after someone has recovered from the virus. Because the virus is so new it is difficult to determine what some of the longer lasting impacts are on the people who have had the virus, but a recent article from the American Association for the Advancement of Sciences  indicates there are many people who were diagnosed with the virus months ago who are experiencing longer lasting health concerns. People who were infected with the virus have reported a long list of persistent maladies from COVID-19 including fatigue, a racing heartbeat, shortness of breath, achy joints, brain fog, a chronic loss of smell and damage to the heart, lungs, kidneys, and brain. There are some studies that have been done on the long lasting effects from the virus. The AAAS reported that one study showed that 87 percent of patients in Italy who were hospitalized for COVID-19 were still struggling with some of these types of issue months after they were released from the hospital. The COVID Symptom Study uses an app available to millions of people in the United States, United Kingdom and Sweden, which shows that between 10 to 15 percent of people infected with the virus, some who only suffered from mild cases, “don’t quickly recover,” from the virus according to the AAAS. If there are long-lasting health issues associated with the coronavirus it could lead to chronic disease for some people health experts caution. The virus is going to require Social Security to take a look at COVID-19 as a potential disabling condition related to disability benefits if evidence shows that people who were infected with the virus suffer from signification impairments that prevent people from working.