Posts in:Blog

Disability for Those with Inability to Speak English Expected to Change

Posted June 14, 2019 by Premier Disability Services, LLC®

The Trump administration is expected to change a federal rule this summer that for decades has allowed thousands of older citizens with proven mental or physical disabilities to qualify for federal benefits if they are also unable to communicate in English.

In its proposed rule change, the Social Security Administration (SSA) says the inability to read, write and speak in English is not the barrier it once was, because the “U.S. workforce has become more linguistically diverse and work opportunities have expanded for individuals who lack English proficiency.”

Members of Congress are squaring off over the proposal, with several Democrats saying the Trump administration is promoting an unnecessary and polarizing policy change that discriminates against older workers and is anti-immigrant. Some Republicans who favor the rule change say the current system is antiquated and does not take into account how multilingual U.S. citizens and residents have become.

In the five-step application process for the disability insurance program, the language eligibility requirement can be considered only if the applicant reaches the final step and is at least 45 years old. To get there, applicants must prove, through medical records and physician testimony, that they have severe, long-term disabilities that prevent them from returning to their jobs. In addition, applicants must prove that they cannot function in other lines of work. Applicants who clear this eligibility requirement are often physically disabled and, because of a lack of English proficiency, are unable to switch to desk jobs.

The SSA uses a formula to determine whether applicants have paid a sufficient amount of Social Security and Medicare taxes to qualify. Applicants must be U.S. citizens, lawful permanent residents or have one of a variety of legal immigrant statuses. Only about one-third of applicants ultimately qualify for benefits.

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By: Joyce Trudeau of Premier Disability Services, LLC®

Ex-Heads of the Social Security Administration Offer Plan to Improve Customer Service

Posted June 7, 2019 by Premier Disability Services, LLC®

A worsening customer service crisis at the Social Security Administration has prompted three of its former commissioners to urge the U.S. Congress to fix the annual budgeting process that has starved the agency of the resources it needs to do its job. A letter calling for administrative budget reforms signed by the former commissioners – two appointed by Democratic presidents, and one by a Republican – will be delivered to congressional leadership. It will be sent to 19 key lawmakers, including the leadership of both parties and the chairs and ranking members of all the key congressional committees controlling budget, appropriations and finance.

To read the letter and view the list of recipients, see: (

The Social Security beneficiary rolls are growing quickly as the nation ages – this year, the agency is expected to pay $1.1 trillion in benefits to 69 million recipients of retirement and disability benefits, and Supplemental Security Income. The agency forecasts that its beneficiary rolls will increase 43% over the next two decades. However, Congress cut the agency’s budget nearly 11% between fiscal years 2010 and 2019, after adjusting for inflation, according to the Center on Budget and Policy Priorities, while the number of beneficiaries grew by more than 16%.

Social Security has responded to the cuts by closing 67 of the field offices that provide critical service to the public since 2010. Wait times have soared on its toll-free phone line, and there is a very large backlog of disability insurance claims waiting for decisions on appeal.

The Social Security administrative budget is funded through the same payroll taxes that fund benefits. Currently, workers and employers split a 12.4% tax. Social Security benefits were removed from the federal budget under legislation enacted in 1990, but administrative expenses continued to be counted due to an interpretation of the legislation by the Office of Management and Budget. Since passage of the 2011 Budget Control Act, which places caps on nondefense discretionary spending, the Social Security budget has been forced to compete with other federal spending priorities – for example, the National Institutes of Health. The struggle to manage federal spending under those caps is starting to heat up again as Congress begins turning its attention to the budget for next year.

The trio of former commissioners is proposing a legislative fix to the problem. The letter to be sent to Congress on Wednesday is signed by Ken Apfel, who served as commissioner during the Clinton administration, Jo Anne Barnhart, who was nominated by President George W. Bush and served from 2001 to 2007; and Carolyn Colvin, who served from 2013 to 2017 during the Obama administration.

The former commissioners propose that Congress eliminate the requirement that the Social Security administrative budget be included in the caps. Congressional appropriations committees would still approve the agency’s budget. “But importantly,” they write, “the Committees would be able to approve the funding that would be needed for the Social Security Administration to provide adequate service to the public.”

The letter notes that the agency operates very efficiently – since 1989, administrative expenses have been less than 1% of its budget. Social Security also has moved to improve efficiency through initiatives aimed at serving the public online and via its toll-free number, and by beefing up program integrity programs aimed at rooting out fraud.

But the commissioners note that 858,000 people were waiting for hearings before administrative law judges on disability benefit applications in fiscal year 2018. In the same year, the average wait time for callers to the Social Security toll-free number was 24 minutes, up from 13.6 minutes in fiscal year 2016 – and 15% of callers received a busy signal. Social Security’s processing centers, which handle claims after beneficiaries are determined to be eligible, face an enormous backlog of 2.9 million cases this year.

“Social Security has a two-pronged standard for its performance – providing benefits in a timely and accurate way,” Jo Anne Barnhart noted in an interview with Reuters. “Accuracy is really not an issue, and Congress has actually allocated additional funding for program integrity activities in recent years, so the agency is doing a really good job there. It’s timeliness that is really falling short – people who have paid into the system are really getting deficient public service. It has been a problematic situation for a while, and it is trending in the wrong direction.”

Contact our office today if you or anyone you know would like to learn more about qualifying for Social Security Disability benefits.


By: Joyce Trudeau of Premier Disability Services, LLC®

Dismissal of SSI Claimant’s Request for Review is Final Decision Subject to Judicial Review

Posted May 31, 2019 by Premier Disability Services, LLC®

Section 405(g) of the Social Security Act allows for judicial review of “any final decision … made after a hearing” by the Social Security Administration. Earlier this week, in a unanimous opinion, the Supreme Court resolved in favor of the claimant, Ricky Lee Smith, a split among the courts of appeal as to whether a claimant has a right to judicial review under section 405(g) when the SSA’s Appeals Council dismisses the claimant’s request for review as untimely after the claimant has obtained a hearing before an administrative law judge.

The opinion, written by Justice Sonia Sotomayor, began with the text of the statute. The court had no difficulty finding that the Appeals Council’s dismissal of the claim fits within the term “final decision,” because the dismissal was the final stage of review. The court’s interpretation of the “after a hearing” requirement was a bit more nuanced. After observing that the phrase “has been the subject of some confusion over the years,” the court declined “to give section 405(g) a definition for all seasons” because in this case Smith had obtained the kind of hearing the statute most naturally suggests: an ALJ hearing on the merits. The court noted that the “after a hearing” requirement cannot be satisfied “as matter of mere chronology.” To allow that it could be satisfied that way risks “untenable breadth.” Instead, distinguishing the case from Califano v. Sanders, which involved the denial of a petition to reopen, the court found that the final decision in this case was much more closely tethered to the relevant “hearing.” Moreover, the claimant’s access to “this first bite at the apple” is “a matter of legislative right rather than agency grace.”

Turning to the statutory context, the court found that both requirements for finality under the Administrative Procedure Act were met because the action “mark[s] the  ‘consummation’ of the agency’s decision-making process,” and  is “one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” The court acknowledged that the Social Security Act is a different statute from the APA and “courts must remain sensitive to their differences.” In this instance, the court noted, some of these differences indicate that Congress sought more oversight by the courts rather than less, and Congress designed the Social Security Act as a whole to be “unusually protective” of claimants. The court would not presume that Congress intended to leave claimants without recourse when the agency makes mistakes, as it inevitably will.

The court then found that Smith’s right to judicial review was consistent with “’the strong presumption that Congress intended judicial review of administrative action’” and that the heavy burden for rebutting that presumption had not been satisfied. Although Congress has granted the agency the power to establish the procedure by which individuals may claim benefits, Congress has not suggested that the Social Security Administration should be the sole arbiter of whether a claimant has satisfied those procedures.

The court then turned to consider the arguments offered by Deepak Gupta, the amicus curiae appointed to defend the judgment below after the government agreed with the claimant that the dismissal in this case met the terms of Section 405(g). The court gave two reasons for rejecting Gupta’s claim that “final decision … made after a hearing” refers to a conclusive disposition, after exhaustion, of a claim for which the Social Security Act gives a claimant to a right to a hearing. First, under the court’s precedents, exhaustion is not a pure necessity for judicial review. Second, the dismissal in this case was not merely collateral. Rather, the dismissal terminated a procedure with a substantial record and on which considerable resources had been expended. The agency cannot preclude judicial review simply by stamping “untimely” on a request.

Responding to Gupta’s argument that a ruling in favor of the claimant would open the floodgates to a wave of litigation, the court observed that the number of dismissals for untimeliness is relatively small and that experience in the U.S. Court of Appeals for the 11th Circuit, which has allowed judicial appeal of untimeliness determinations since 1983, does not bear out that prediction. Finally, the court noted that, because related statutes each must be considered in light of “the particular administrative scheme at issue,” yesterday’s decision “hardly knocks loose a line of dominoes.”

The court then rejected Gupta’s argument that the agency’s longstanding interpretation of Section 405(g), before the government changed its position following Smith’s petition for certiorari, is entitled to deference. Declining to decide whether the statute is unambiguous or how to address this curious situation of an amicus seeking deference to a position the government rejects in its brief, the court found deference inappropriate because the scope of judicial review is not the kind of question Congress is presumed to have implicitly delegated to an agency.

Finally, the court addressed the scope of review on remand, a question on which Smith and the government disagreed. The court declared that a federal court would have jurisdiction to proceed to the merits of the claim. However, the court pointed out that reaching the merits when the agency has not first decided a question delegated to it would be contrary to fundamental principles of administrative law. Thus, “in the ordinary case,” a court should limit its review to the procedural question that was the basis of the dismissal and should permit the agency to address any substantive questions in the first instance. In the rare case, such as when the government joins a claimant in asking the court to address the merits, the court might appropriately consider the merits.

The outcome is not surprising in light of the clear text of the statute and the fact that neither party defended the judgment below.

Contact our office today if you or anyone you know would like to learn more about qualifying for Social Security Disability benefits.

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By: Joyce Trudeau of Premier Disability Services, LLC®