Recent Data Troubling

According to the Social Security Forum (Vol. 36, No. 11):

  • Allowance rates are on the decline.  In other words, less people are being approved for disability.
  • Senior advisor fully favorable decisions are decreasing.
  • Over one million cases are pending at the ALJ level.
  • Fewer people are applying for disability

Denials on the Rise

Whatever the reason, a trend is developing: approval rates have dropped at every administrative level.  In 2009, 37% of applicants were approved on initial application for dsiability.  Last year, the approval rate dropped to 33%.  In 2007, Administrative Law Judges approved 62% of the disability claims adjudicated. Last year, the approval rate dropped to 48% nationally, which is the lowest rate in over 30 years. Whereas in the past there were arguably a very small percentage of folks approved that were not truly “disabled” under the Act, we are now seeing disabled individuals being denied.  The pendulum has swung, and it has swung too far.

2015 COLA

There will be a 1.7% cost of living adjustment for Social Security and SSI beneficiaries in 2015.

  • SSI:
    • Individual: $733 per month
    • Couple: $1,100 per month
  • Trial Work Period: $780 per month
  • Maximum Taxable Earnings: $118,500
  • Earnings required for quarter of coverage: $1,220
  • SGA
    • non-blind: $1090
    • blind: $1820
  • Retirement earnings test exempt amount:

Reopening a Case

Administrative Law Judges’ are allowed on their own initiative under HALLEX I-2-9-10(A)(I) to reopen and revise a decision.  Under POMS GN 04060.05, an ALJ may reopen within 12 months after the date of the determination for any reason.

Video Hearing Opt-Out

A few months ago SSA published rules regarding video hearing procedures. The rules provide that SSA will notify the claimant prior to the hearing that the hearing may be conducted by video teleconferencing. The claimant has the opportunity to object to the procedure and demand an in-person hearing, but must do so in writing within 30 days.

Severe Impairments in the 6th Circuit

Disability for Social Security purposes is determined using a five step sequential evaluation process. At the second step, the adjudicator is supposed to determine if the the claimant has any “severe” impairments.  To be severe, an impairment or combination of impairments must “significantly limit your physical or mental ability to do basic work activities.” 20 CFR 404.1520(c).  While this step of the sequential evaluation process may seem important, in practice, the process of determining a severe impairment has been, in many cases, rendered meaningless. 

For example, in the 6th Circuit, even if the ALJ fails to properly classify an impairment at step 2, a Court will normally find the error “not reversible” and irrelevant so long as the ALJ finds “some impairments” severe and continues the sequential evaluation process. Maziarz v. Sec’y of Health & Human Services, 837 F.2d 240 (6th Cir. 1987).  Although there are exceptions, the Maziarz holding presents a major hurdle for the practitioner attempting to appeal a denial to a federal court in the 6th Circuit where the ALJ may have committed error at Step 2.

Listing 12.05(C)

In Whitehead v. Comm’r of SSA, 2014 U.S.Dist. Lexis 112016, the District Court did a wonderful job of not only explaining Listing 12.05(C), but applying the listing to the facts of the case.   Listing 12.05C requires a valid IQ of 60 through 70 and a physical or mental impairment imposing an additional and significant work related functional limitation.  The Listing further requires intellectual disability manifested before age 22.  In my experience, there is a common misconception that someone who is mildly mentally retarded or intellectually disabled is unable to function in any manner whatsoever.  Thus, if a person with mild mental retardation has worked in the past, decision makers apparently feel it would be inappropriate to find the person disabled.  The truth is that individuals with mild mental retardation are usually able to live in the community, often independently (DSM, 4th).   Thus, it is improper to deny a claim that meets Listing 12.05 simply because the claimant has worked unskilled jobs in the past, or is able to watch television, drive, or take a bath.  “Individuals performing in the mild mental retardation range are capable of performing such activities.”  Whitehead, p. 14.      


Get every new post delivered to your Inbox.