The Social Security Administration’s average wait time for an initial disability decision hit an all-time high in August 2022 of more than six months, or 198 days — almost three times higher than it was a decade ago. The AARP recently noted wait times of about 31 minutes on Social Security’s 800 number, about 10 times longer than they were in 2012. Meanwhile, the average disability claimant today waits more than two years for a final decision, while more than 10,000 people die each year without an answer, the nonpartisan organization said in its letter. Experts says that much of SSA’s ability to keep up with their workload will depend on Congress’ upcoming continuing resolution to keep the government funded into the next fiscal year. Budget cutting has squeezed SSA’s operating budget from an already low 0.9 percent of overall Social Security spending in 2010 to just 0.6 percent in 2021. Plainly speaking, they give out $99.40 dollars in benefits to people, for every $.60 they use to keep the organization running. Compare this amount to health insurance companies, who commonly spend up to 20% of their collected funds on administration — for every $80 they spend paying your medical bills, they keep $20 to keep their organization running. If you are concerned, please contact your members of Congress.
The Acting Commissioner of the Social Security Administration, Dr. Kilolo Kijakazi, recently announced an increase in the fee cap for attorneys helping claimants. The former fee cap, set in 2009, was $6,000. It will be raised to $7,200 on November 30, 2022.
What a raise in the fee cap means for claimants:
• The fee for attorney services, set by the Social Security Administration, is the lesser of ¼ of past due benefits or the fee cap. Most claimants’ past due benefits are less than $24,000, and therefore will be unaffected. Those whose past-due benefits are greater than $24,000 will now pay a little bit more.
• It may be a little easier to find a lawyer, since the low fees for services has resulted in many lawyers leaving this area of law.
What a raise in the fee cap means for lawyers:
• Lawyers doing Social Security cases have not gotten a pay raise since 2009. With the cost of inflation, higher wage costs, and the lower rate of approval of claimants, it has been financially difficult for Social Security lawyers to keep going. While the fee cap would have to be raised to $8000 to make up for inflation between 2009 and 2022, this increase does help a little.
Authors and researchers, Hilary Hoynes, Nicole Maestas, and Alexander Strand, recently examined the value of legal representation for claimants and the Social Security Administration and found the following results:
- When lawyers submit claimants’ initial application for disability benefits, they increased the probability of an award of disability at the initial level (without having to appeal) by 23%.
- When lawyers win benefits for claimants earlier, it saves money for the Social Security Administration who will otherwise pay staff, outside medical and vocational experts, and adjudicators as the case progresses through appeals and a hearing.
At Kirsch & Clark, a growing number of our Social Security clients join us at the initial level. In 2020, we helped 60% of our clients file an initial claim for benefits. The other 40% were in various stages of appealing a denial. We have had good success in resolving cases at the initial level, so that benefits can be received earlier. We take pride in submitting detailed applications with the relevant information so that the Social Security Administration can make the right decision earlier.
The Commissioner of the Social Security Administration posted this on 4/3/2020:
The Department of the Treasury (Treasury) announced on April 1 that Social Security beneficiaries who are not typically required to file tax returns will not need to file an abbreviated tax return to receive an economic impact payment. The Internal Revenue Service (IRS) will use the information on the Form SSA-1099 to generate $1,200 economic impact payments to Social Security beneficiaries who did not file tax returns in 2018 or 2019.
The Treasury, not Social Security, will make automatic payments to Social Security beneficiaries. Beneficiaries will receive these payments by direct deposit or by paper check, just as they would normally receive their Social Security benefits.
Please note that we will not consider economic impact payments as income for SSI recipients, and the payments are excluded from resources for 12 months.
Kirsch & Clark also found this additional information:
Economic Impact Payments will not be taken away to reduce overpayments; however, they can be taken away to pay overdue child support.
We are still here for you. We know that many of you are at-risk and we want to keep you safe. We want to keep doing our work to help you with as little interruption as possible. At present, we are trying to meet with most clients over the phone, and masking-up if we need to meet in person. We are capable of doing all of our regular work for you. You may also contact us by text or email, if you are not able to reach us by phone.
All of our local Social Security offices are open but closed to the public, except by appointment. Online services and services over the phone are still available. Please rest assured that all of your business with Social Security can be accomplished by these means, and we are here to help.
Hearings are now being rescheduled to avoid in-person contact. Because of this, claimants will be given a choice of a) waiting for an in-person hearing (and it could be many months) or b) having a phone hearing at your scheduled time without delays. For years, we have had the philosophy that justice is best served in person and have traveled four hours round-trip to hearings in Spokane because we believed it was best for our clients. However, because the wait for an in-person hearing may be very long, we encourage clients to agree to phone hearings and we will do our very best to make these work. Video hearings may become an option in the near future (through a platform similar to Zoom).
Please follow this link to Benefits.gov for more information: https://www.benefits.gov/news/article/393?utm_source=govdelivery&utm_medium=email&utm_campaign=dr374
Marijuana and Your Disability Case
Marijuana use for medicinal purposes is becoming more common, and many people applying for disability use it regularly. However, this may interfere with getting approved for disability, depending on each individual situation.
Social Security Disability operates under federal law where marijuana is still considered an illegal substance. Because of this, marijuana use is generally not viewed favorably. Social Security experts and judges will evaluate each case to see whether marijuana (or any other illegal drugs and alcohol) are a contributing factor to disabling conditions. Specifically, would the disabling conditions persist or be as severe if drugs or alcohol were not used? If they suspect that marijuana is worsening a disabling condition, then benefits will usually be denied.
It is difficult to get benefits for someone who uses marijuana if some of their disabling conditions include the following symptoms, which the Mayo Clinic states can sometimes be caused by marijuana use:
- Paranoid thinking
- A disconnected state (dissociation)
- Worsened manic symptoms in someone with bipolar disorder
- Worsened depression in someone who has depression
- Psychosis in someone with schizophrenia
- Cannabinoid hyperemesis syndrome (cyclical vomiting, delayed gastric emptying). See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3576702/.
Claimants who are using marijuana are less likely to negatively affect their chances for disability if:
- Their marijuana use is known, approved of, and supervised by a doctor who also treats their disabling conditions.
- There was a documented extended period without marijuana use when symptoms were no better.
- They have a physical condition that is known to not be worsened marijuana use.
- They do not have mental health issues.
As always, it is important to be up-front about marijuana use (or any other drug or alcohol use) with your doctor and your attorney so they can advise you.
The “Achieving a Better Life Experience (ABLE) Account” is now available nationwide. This account allows people who are disabled to save money tax free, without losing SSI and Medicaid benefits. The account is much like a checking account and comes with a debit card.
Individuals Who Qualify for an ABLE Account
- Your disability must have had started before turning 26. This must be documented by medical records or a doctor’s certification that you meet the disability rules or by showing proof of SSI/SSDI eligibility when signing up for an account. Rules on age of disability may be more generous in the future.
How Much You Can Save?
- The disabled person and other people can contribute up to $15,000/ year tax-free. This amount may change from year to year. The total account value cannot exceed $100,000 without affecting SSI eligibility. These numbers might change in the future or be different for different plans in different states.
What Can the ABLE Account Pay For?
- ABLE accounts can be used to pay for “Qualified Disability Expenses” (some examples are education, housing, basic living expenses, financial and legal fees, health and wellness). Beneficiaries must keep track of how the money was used and use the money for qualified expenses. A full list of rules and obligations will be available when you set up an account.
ABLE account vs. a Special Needs Trust (SNT)
A special needs trust (SNT) is another way to save without negative impact on public benefits. To decide what is best for you, learn all of the facts. Here are a few ways that ABLE accounts and SNT’s differ:
|ABLE Account||Special Needs Trust|
|You can set it up yourself||You need a lawyer with expertise in SNT’s|
|Is only for persons disabled before age 26||Is for disabled persons under age 65|
|Beneficiary has control||Requires a trustee to distribute funds|
|Can be used for “qualified disability expenses,” including housing||Can be used for anything the trustee thinks is acceptable, except housing and food|
|Can be used for inheritances less than $15,000||Can be used for inheritances more than $15,000|
|Contribution limits of $15,000/year, limit of $100,000 total in account||No contribution limits or caps|
|Upon death of beneficiary, balance of funds go to pay back Medicaid||Upon death of beneficiary, funds may be used to repay Medicaid, balance to those designated by the trust|
Financial planning for a disabled person is often complicated. At Kirsch & Clark we can advise you about which account works best in your situation. Mr. Clark is able to draft a special needs trust, if needed and advise on its administration. It is also possible to have an ABLE account and a Special Needs Trust at the same time.
Learning More about ABLE Accounts
Lots of information and examples about the use of ABLE accounts can be found here: https://www.able-now.com/
- In Idaho, eligible residents can set up an account with an out-of-state program (at the date of this post, Idaho does not offer an ABLE program). Ohio is a state that allows residents of other states to open an account. For more information see:
Idaho State Independent Living Council web-site: https://silc.idaho.gov/able-accounts/
Ohio program: https://www.stableaccount.com/benefits/
- For Washington residents, you can set up an account here: https://www.washingtonstateable.com/