At Doherty, Cella, Keane LLP, we often say, “It is our people that make the difference.”   We are proud to announce that former associate lawyer Kathryn Lang has been nominated by President Biden to serve as a member of the Social Security Advisory Board. Congratulations and well done, Kate!  In addition, DCK also has three former attorneys that are now Administrative Law Judges with Social Security, Medicare and the Veteran’s Administration.

Washington, DC – Today, President Joe Biden announced his intent to nominate Kathryn Lang of Maryland to serve on the Social Security Advisory Board, an independent agency with a seven-member bipartisan board that advises the President, Congress, and Commissioner of Social Security on policies related to Social Security and Supplemental Security Income programs. The position is subject to Senate confirmation.

Lang serves as the Director of Federal Income Security at Justice in Aging, a national nonprofit legal advocacy organization. Her advocacy has focused on improving the Social Security and SSI programs, centering on the needs of people of color, women, LGBTQ+ individuals, those living with disabilities, immigrants, and those with limited English proficiency.

Before joining Justice in Aging, Lang was an attorney at the Maryland Legal Aid Bureau, where she was an advocate for low-income older adults and persons with disabilities. In previous positions, she worked as an attorney at the National Legal Aid and Defender Association, Bread for the City Legal Clinic, Doherty, Cella, Keane, and Associates, LLP, and Legal Services of Northern California. She received her BA from Oberlin College and her JD from Fordham University School of Law. She also has a master’s degree from the University of Pennsylvania in teaching English to speakers of other languages.

Lang joins two other White House nominees who are pending confirmation. Earlier this month, President Biden nominated Andrew G. Biggs and Sharon Beth Lewis to serve terms until September 2024 and 2028, respectively. If confirmed, Lang would serve until September 2026.

The cost-of-living adjustment, COLA, for 2023 will be 8.7%. This is the largest increase since 1981. The average Social Security benefit will increase by more than $140 per month starting January 2023.  This is great news for Social Security beneficiaries.

“Medicare premiums are going down and Social Security benefits are going up in 2023, which will give seniors more peace of mind and breathing room. This year’s substantial Social Security cost-of-living adjustment is the first time in over a decade that Medicare premiums are not rising and shows that we can provide more support to older Americans who count on the benefits they have earned,” Acting Commissioner Kilolo Kijakazi said.

Additional Social Security annual changes for 2023 can be found here.

The National Organization of Social Security Claimants’ Representatives (NOSSCR) has provided the following recent update. 

To help address the growing DDS backlog, NOSSCR has been working closely with OHO to have certain hearing office staff temporarily reassigned to the state agencies.

We are pleased to report that OHO has agreed to send a significant number of attorney advisors to the DDSs for a one-year detail.  They are currently in training, and we are hopeful this will help reduce the enormous backlog of cases pending at the DDS level.

OHO also reported that 56 new ALJs have been hired and will start their training in mid-October.  NOSSCR is continuing to work with OHO and other components of SSA on a variety of issues and we will keep you informed of our efforts and results.

David Camp
NOSSCR President

“Congress handed the Social Security Administration a modest financial lifeline today, but the extra money may only help the agency to tread water. The Continuing Resolution (CR) to keep the government temporarily funded boosts spending for the Social Security Administration (SSA), an agency that has been chronically under-funded while striving to improve customer service to the public.  Under the CR, SSA will receive an additional $400 million for FY 2023. We applaud Congressional Democrats for inserting this funding increase into the bill when spending for most other agencies remains temporarily frozen.    

The increased funding should help SSA cope with its long-standing customer service backlog, which was greatly exacerbated by the pandemic. Customers have been subjected to long hold times on the SSA toll-free phone line, extensive delays awaiting disability claims hearings, and – since the re-opening of field offices last summer – waiting in line at some locations for hours in the heat. With the new level of funding, those problems likely will not get worse, but they may not significantly improve.  

SSA requested twice as much funding for the CR ($800 million) and Congress should approve that level when an Omnibus Appropriations bill for the reminder of FY 2023 is enacted.  We will work with Social Security champions in Congress and other advocacy groups to secure SSA the funding it truly needs to improve customer service.  American workers whose wages finance the Social Security program expect Congress to fully fund SSA so it can properly serve the public.” – Max Richtman, President and CEO, National Committee to Preserve Social Security and Medicare

Social Security has released the Fiscal Year 2021 disability award rates.  The initial level award rate of 36% has decreased by 3% from FY 2020, but it is still higher than it was from 2011 – 2018.   The reconsideration award rate is down 1% from last year to 13%, which it held at from 2017-2019.  The hearing award rate increased by 2% to 51% which is the highest it has been since 2012. This hearing award rate figure alleviates concerns of some that claimants would be disadvantaged by not having in person hearings as nearly all hearings have been held via telephone over the past year. Although we have not heard anything official on this subject from Social Security it would seem to make sense that going forward claimants will have the option of having their hearings in person or via video or telephone.

Social Security data is still illustrating that Disability Determination Services (DDS) has struggled with productivity over the past two years.  DDS receipts are down 7.5% and despite this decrease, pending at the initial claim level is up 26.4% and up 27.8% at the reconsideration levels.  DDS award volume is down 21% over this same time period.

The good news is that the hearing award rate is up and the hearing backlog has been reduced considerably. The average hearing processing time has decreased by 100 days.

The Social Security Administration announced today a 5.9 percent cost-of-living adjustment (COLA) that will begin with benefits payable to more than 64 million Social Security beneficiaries in January 2022. This is is the largest COLA increase since 1982!

Additional increases include, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $147,000 from $142,800.  Substantial Gainful Activity for non-blind individuals will increase from $1310 per month to $1350.

For more information regarding how the COLA is calculated click here.

Monday, September 27, 2021, Social Security employees received an email communication informing them that they have until November 22nd to fully vaccinated or face discipline including dismissal.  Given the controversial nature of the Covid-19 vaccination it is likely that this will be contested and could result in a loss of employees at Social Security which will only further disrupt customer service to the public. Early court cases on this issue tend to favor the employer’s right to impose such mandates.

It is a consistent story across carriers and across the country, Social Security disability awards are down, but is it really awards, or is it decisions in general as we suggested in our July 2021 newsletter Social Security State of Affairs – DCKA Quarterly Newsletter?  Is there now a backlog at the Initial claim and Reconsideration claim level of appeal?

We took a deep dive into Social Security State Agency Monthly Workload data to compare January – August 2019, January –  August 2020, and January – August 2021 to see what is really happening in terms of Initial claim (IC) and Reconsideration claim (RC) receipts, decisions, award rates, and pending. We analyzed the data overall and broke it out by State and by Region (excluding federal components).  The dataset can be found here, SSA State Agency Monthly Workload Data.  The key findings support our earlier analysis, which is at the earlier levels of the Social Security disability process filings are flat or have only modestly increased, while pending claims are up significantly and thus award volumes are down.

There is some good news that overtime has recently been reinstated which should help in processing awards but just yesterday Congress passed a Continuing Resolution (CR)  which will allow the government to spend money at the same rate as in Fiscal Year 2021 until December 3rd. Prior to this there was some hope that if the SS budget passed now there would be more immediate funding to process the cases pending at the IC and RC but with this CR there is no special additional funding earmarked for SS. Therefore it will be a while still to reduce  this backlog at the initial claim and reconsideration levels.

Initial Claim Data:

• Social Security (SSDI) Initial Claim filings were down 2% from 2019 to 2020, but are even from 2019 to 2021.
• Social Security (SSDI) Decisions were down 14% from 2019 to 2020, and were down 8% from 2019 to 2021  (decisions are up 2020 to 2021 – so trending back up, but overall still down from 2019 decisions).
• Number of Awards (this is volume) were down 6% from 2019 to 2020, and down 11% 2019 to 2021.
• Overall the SSDI award rate was up 3.8% from 2019 to 2020, but down 1% from 2019 to 2021.   The award rate from 2020 to 2021 is down 4.92% (so while decisions are up more denials are being processed).
• IC Pending is up 24% from 2019 to 2020, and up 36% from 2019 to 2021.  This is the big story that illustrates decisions are delayed because IC receipts are steady but pending is up 36% over the same time period. 

Reconsideration Claim Data:

• Social Security (SSDI) Reconsideration filings were down 3% from 2019 to 2020, but were up 13% from 2019 to 2021 (an increase of 15% from 2020 to 2021).  This number is likely impacted because 10 states which did not have Recon previously now have added the Recon step.
• Social Security Recon Decisions were up 4% from 2019 to 2020, and were unchanged from 2019 to 2021 (decisions are down 4% from 2020 to 2021)
• Number of Recon Awards (this is volume) were up 11% from 2019 to 2020, and down 5% 2019 to 2021 (a decline in awards of 15% from 2020 to 2021)
• Overall the SSDI award rate was up 1% from 2019 to 2020, and down .85% from 2019 to 2021.   The award rate from 2020 to 2021 is down 1.93% (so while decisions are up more denials are being processed).
• RC Pending is up 31% from 2019 to 2020, and up 64% from 2019 to 2021.  Again this illustrates that Social Security is not making decisions. Recon receipts are up 13% while pending is up 64% over the same period.  But again this number likely affected because 10 states which did not have Recon previously now have added the Recon step.

SSDI Initial Claim data by Region 2019 to 2021- Excluding Federal Components (Regional breakdown code by State included below)*:

ATL region: filings are up 10%, and determinations are down 16% and Awards down 17% while pending is up 54%  (award rate down slightly .7%)
BOS region: filings are down 8%, and determinations are down 9% and Awards down 11% while pending is up 17%  (award rate down slightly 1.5%)
CHI region: filings are down 7% and determinations are down 10% and Awards down 11% while pending is up 32%  (award rate down slightly .65%)
DAL region: filings are up 8% and determinations are down 2% and Awards down 6% while pending is up 43%  (award rate down slightly 1.67%)
DEN region: filings are up 13% and determinations are up 13% and Awards down 2% while pending is up 37%  (award rate down 6.14%)
KCM region: filings are up 2% and determinations are up 7% and Awards even while pending is up 47%  (award rate down 3.25%)
NYC region: filings are down 4% and determinations are up 6% and Awards even while pending is up 28%  (award rate down slightly 2.9%)
PHL region: filings are down 4% and determinations are down 7% and Awards are down 12% while pending is up 27%  (award rate down 2.47%)
SEA region: filings are down 3% and determinations are down 34% and Awards are down 28% while pending is up 27%  (award rate is up 4.21%)
SFO region: filings are down 11% and determinations are down 14% and Awards are down 12% while pending is up 23%  (award rate is down .71%)

Hearing Data July 2019 compared to August 2020 and August 2021:
Hearings are being processed!  Processing time and the backlog has been reduced significantly.
Processing time decreased from 2019 to 2021 by 36.7% (2019 to 2020 decrease of 22%, and 2020 to 2021 decrease of 17.8%)
Hearing Pending from 2019 to 2021 decreased by 51.2%,  (2019 to 2020 decrease of 32.9% and 2020 to 2021 decrease of 27.3%)
DISP/ADJ receipts 2019 to 2021 decreased by 24%, (2019 to 2020 decrease of 12.8% and 2020 to 2021 decrease of 13.2%)

*The Region Code is one of the following eleven codes 
ATL:  Atlanta Region (SSA Region 4), includes AL, FL, GA, KY, MS, NC, SC, TN.
BOS:  Boston Region (SSA Region 1), includes CT, MA ME, NH, RI, VT.
CHI: Chicago Region (SSA Region 5), includes IL, IN, MI, MN, OH, WI.
DAL: Dallas Region (SSA Region 6), includes AR, LA, NM, OK, TX.
DEN:  Denver Region (SSA Region 8), includes CO, MT, ND, ST, UT, WY.
FED:  Not a state agency, includes all federal components making disability claims determinations.  A state designation of FE used to indicate collectively all federal disability processing components.  The FED designation exists for comprehensive presentation purposes and is not an SSA administrative region.  Other datasets for initial disability claims processing might not include FED processed cases.
KCM: Kansas City Region (SSA Region 7), includes IA, KS, MO, NE.
NYC:  New York Region (SSA Region 2), includes NJ, NY, PR.
PHL: Philadelphia Region (SSA Region 3), includes DC, DE, MD, PA, VA, WV.
SEA:  Seattle Region (SSA Region 10), includes AK, ID, OR, WA.
SFO:  San Francisco Region (SSA Region 9), includes AZ, CA, GU, HI, NV

It is a consistent story across carriers and across the country, Social Security disability awards are down, but it isn’t really awards, it is decisions.  Basically Social Security is just not making decisions, so the awards are still there, but they are taking longer to be adjudicated.  Social Security national statistics support this as well as our own data. Nationally over the past year initial applications are down 11.5% while initial pending is up 26.5% and at the reconsideration level, filings are down 13.7% and yet reconsideration pending is up 49.4%.  Between September 2019 and April 2021 the initial disability claim backlog has increased by approximately 115,000 claims.

What has caused this delay in decision-making?  Social Security was relatively quick to transition to a fully remote workforce, but given the nature of the work, administrative duties and telephone calls increased exponentially and they just were not prepared to handle it. The following is an excerpt from the April 29th Senate Finance Committee hearing that illustrates some of the issues.

.. Limiting visitors has also resulted in an influx of incoming mail and phone calls. To illustrate the magnitude of this increase, before the pandemic, field offices scanned and uploaded about 150,000 paper documents weekly for processing. Offices are currently scanning and uploading approximately one and a half million paper documents weekly. In FY 2020, the unit time for the 47 million field office actions increased by 20 percent in part due to scanning, copying, indexing, and returning mailed documents, which significantly reduced our productivity. …

Similarly, field offices are now handling three times as many phone calls as they did pre-pandemic. We are on track to answer over 60 million calls in our field offices in FY 2021—up from 20 million calls handled in FY 2019. …

The Social Security Administration budget has authorized the hiring of 1300 (above attrition) Disability Determination Services employees to address the backlog at the initial and reconsideration levels, and the anticipated spike in claims due to the extended unemployment benefits ending in September 2021. They have also recently reinstated overtime which will help in processing some of the delayed decisions. Social Security has acknowledged the backlog will continue to grow as they manage the expected influx of claims, and reducing it to pre-Covid numbers will be a multi-year effort.