NAWCJ

NEW NATIONAL ACADEMY OF SOCIAL INSURANCE WEBCAST EXPLAINS, CALLS FOR UPDATE OF, SUPPLEMENTAL SECURITY INCOME (SSI) PROGRAM



By Honorable David B. Torrey
Workers’ Compensation Judge
Pennsylvania Department of Labor & Industry
Pittsburgh, PA

 

I.

Claimants at workers’ compensation hearings are routinely asked about current sources of income and support.  Several such workers have, over the years, testified in my cases about Title XVI Supplemental Security Income (SSI)[1] payments received in the wake of a work injury and disability; or received even pre-injury, while they were working low-paying, part-time jobs.

A webcast of a spirited panel discussion, available now as a YouTube video,[2] is an excellent way to learn more about SSI.  The panel, convened on September 23, 2021 by the National Academy of Social Insurance (NASI) was led by NASI SSI expert Rebecca Valles, and the speakers were all impressive experts on the program.  The most animated was attorney Matthew Cortland who, over years of chronic illness, has had occasion to resort to SSI.

The panel topic was entitled, “After Decades, is Now Finally the Moment When We Update SSI?,” and the panelists had a theme: SSI must be reformed so that the monthly benefits paid (very low) and procedures governing the process (very intricate, and often wasteful) vindicate the program’s mission of keeping recipients out of poverty.  Advocates’ efforts to reform the system have in fact been pending for nearly a decade in the form of the proposed SSI Restoration Act, and aspects of such reform were reflected in Biden presidential campaign promises.

And, indeed, aspects of SSI reform were to be found in initial Building Back Better proposals.[3]  The portent of change in the SSI program was the occasion for convening the panel.  (I believe that such changes, while they may have been proposed in late September, did not make their way into the reconciliation bill.[4])

II.

SSI is not social insurance but, instead, a federal means-tested program, established in 1972, that provides income support to the needy, aged, blind, and disabled.[5]  I have heard SSI referred to over the years, derogatorily, as “federal welfare,” but many advocates, including applicant attorneys, cringe at that expression.  “The reality,” a Washington state lawyer asserts on his website, is that “to receive SSI benefits, one has to prove [that] they are disabled.”[6] In other words, SSI benefits are not a mere hand-out to the unemployed.

Scholars, in any event, have referred to SSI as “a program of last resort for the destitute” which, while paying benefits below the national poverty level, are nonetheless “a godsend to those who do qualify.”[7]  Notably, most recipients also receive food stamps and have qualified for a Medicaid card.

Many adult SSI recipients have had life-long disabilities that prevented them from work, and they did not pay into Social Security. Hence, they have no potential Social Security Disability (SSD) claim.  (Another circumstance giving rise to an SSI claim is a lifelong stay-at-home mother who never contributed to the program, but then became disabled.)  Still, it is possible for some SSI recipients to also become entitled to SSD, and many receive both SSI and Social Security Retirement.[8]

To secure SSI, the test of disability, for adults, is generally the same as under Social Security Disability.[9]  The applicant must have a medically determinable physical or mental impairment which results in the “inability to perform any substantial gainful employment which has lasted or can be expected to last for a continuous period of not less than 12 months.”  The test of disability for a child, meanwhile, is having a medically determinable physical or mental impairment which results in “marked and severe functional limitations” and which, similarly, “has lasted, or can be expected to last for a continuous period of not less than 12 months.”  For both adults and children, the likelihood of death is also a criterion of eligibility.

The current Federal Benefit Rate for SSI is $794.00 per month for an individual/child, and $1,191.00 for a couple.  The program maintains “resource limits”: an individual can secure SSI if his or her personal assets are less than $2,000.00 for an individual, and less than $3,000.00 for a couple. Generally, one’s home and automobile are excluded from the calculation.

A recipient can, meanwhile, work for wages – and hence potentially sustain a work injury – and receive SSI, but a rigid income limitation exists: “[SSA] ‘disregards’ the first $65.00 of earned income and the first $20.00 of ‘unearned’ income per month, [but] monthly SSI benefits are reduced for every dollar over those thresholds.”  As NASI explains, “In other words, each dollar in earned income after the first $65.00 reduces benefits by 50 cents, and benefits are reduced dollar for dollar of earned income after the first $20.00.”  Surprisingly, the thresholds have never been changed since the beginning of the program.[10]

Notably, SSA will consider workers’ compensation as monies effective to reduce the SSI benefit.[11]

III.

The panelists depicted SSI as a program long-forgotten and “largely unchanged” from its enactment during the Nixon Administration.  The low benefit rate, they asserted, failed to keep the disabled poor out of poverty. The current monthly payment, indeed, would place the recipient at only three-quarters of the poverty line.

Mr. Cortland was particularly dismissive of several of the SSI program rules.  He pointed out that the $2,000.00 asset limit includes one’s savings, rendering many of the poor disabled ineligible for benefits. (He asserted that the limit should be $10,000.00.)  The payment of $794.00, meanwhile, is so low that, given current housing costs, a recipient will almost invariably have to live with roommates.  Cortland insisted that SSI levels should in fact be raised above the federal poverty level.

The panel stressed that SSI has such complex rules that even many attorneys find them hard to navigate – never mind the members of the severely disabled and disempowered community who must comply with them.  Notably, many of the SSI rules are (no surprise) found in regulations, not the statute.

Mr. Cortland maintained that the rules are complex because the system is set up, ironically, to be “an adversarial process … to exclude the eligible ….”  Applicants have a hard time initially qualifying and are then challenged, thereafter, to comply.  One panelist used a striking example: even a bag of groceries – an example of “in-kind support” – engifted to a recipient by a friend or loved one counts against his or her benefits.  In another irony, even the SSA acknowledges that SSI is hard – and wasteful – to administer.  The panelists set forth a striking statistic: SSI accounts for only 5% of all benefits paid out, but 35% of the agency’s administrative budget.

The panelists spoke at length about how the COVID pandemic disaster has been especially hard on the disability community, many of whom receive SSI.  One straightforward challenge has been access – when COVID hit, SSA field offices closed, thus precluding applications.  Meanwhile, social workers were not always available to facilitate applications.  One panelist stated that SSI in fact has “always been under-enrolled,” but during COVID many qualified disabled people simply had no way of applying.

IV.

Workers’ compensation judges can benefit by gaining sophistication about the collateral programs that are sought out by the disabled.  I always had some understanding of SSI, but this panel discussion jump-started my interest in learning more.  This NASI presentation is unapologetically one that advocates for expansion of the program but, regardless of one’s views, this recommendable video delivers the latest facts and the definitive reformers’ critique of this important program.

[1] Title XVI of the Social Security Act is administered by the Social Security Administration. Title XVI appears in the United States Code, title 42, §§ 1381 et seq.  Regulations are found in Title 20, Code of Federal Regulations, Part 416, §§ 416.101 et seq.

[2] See https://www.youtube.com/watch?v=jQCvfJypG2E.

[3] See NASI Fact Sheet, “Building Back Better” for Older and Disabled Americans Requires Bringing Supplemental Security Income (SSI) into the 21st Century, https://www.nasi.org/research/building-back-better-ssi-fact-sheet/.

[4] See Elizabeth Bauer, Who’s Missing from the “Build Back Better” Reconciliation Bill? The Elderly and Disabled Poor, Forbes (Oct. 10, 2021), https://www.forbes.com/sites/forbes-personal-shopper/2021/10/27/the-haul-best-new-beauty-products/?sh=68126d436794.

[5] The Social Security Administration has comprehensive and often easy to understand webpages on SSI.  See Supplemental Security Income (SSI) Overview, https://www.ssa.gov/ssi/text-over-ussi.htm.

[6] Marken Law Group, Blog Post, Supplemental Security Income (SSI) Benefits is Not Welfare (April 10, 2017),  https://markenlawgroup.com/2017/04/10/supplemental-security-income-ssi-benefits-not-welfare/.

[7] Theodore R. Marmor, Gerry L. Mashaw & John Pakutka, Social Insurance: America’s Neglected Heritage and Contested Future, p.169, p.70 (Sage 2014).

[8] Id.

[9] The following basic facts of the program were set forth by the panel members, and are also easily accessible at Supplemental Security Income (SSI) Overview, https://www.ssa.gov/ssi/text-over-ussi.htm.

[10] NASI Fact Sheet, supra.

[11]E-mail to the Author from Barbara E. Holmes, Esq., Pittsburgh, PA (Oct. 27, 2021).