SSA to Review All Denials of SSI to Elderly Noncitizens

IMMIGRANTS & PUBLIC BENEFITS

Supplemental Security Income (SSI)

SSA to review all denials of SSI to elderly noncitizens
Immigrants' Rights Update, Vol. 13, No. 2, April 30, 1999
[by Ethel Zelenske, National Senior Citizens Law Center]

The Social Security Administration (SSA) recently undertook two special initiatives to ensure that any denials of Supplemental Security Income (SSI) to elderly non–U.S. citizens are being made correctly and to determine whether the workers processing such cases need further instructions.

In the first initiative, SSA regional offices reviewed claims denied because of applicants’ "failure to cooperate." In the second initiative, the central Office of Disability reviewed a group of medical denials. The results showed a disproportionately high number of denials among elderly noncitizens who, unlike elderly citizens, must be "disabled" in order to qualify.

Based on the results of its preliminary review, the SSA has issued emergency instructions to all workers under file number EM-99012. According to these instructions, all failure-to-cooperate denials and medical denials will be re-reviewed, workers will be issued reminders and clarifying instructions, and additional training will be presented to SSA field office and quality assurance staff, to Disability Determination Services (DDS) workers, and to Offices of Hearings and Appeals (OHA).

After severely restricting the SSI eligibility of noncitizens in 1996, Congress acted, through the Balanced Budget Act of 1997, to provide that elderly noncitizens—i.e., those age 65 or older—who were not "receiving" SSI on Aug. 22, 1996, would be eligible for SSI if they are disabled. Prior to the the 1997 act, SSA decision-makers and advocates had little experience establishing whether elderly persons were disabled for purposes of establishing whether they were eligible for SSI. While, under the existing standard, many elderly immigrants should be found to be disabled, advocates have been concerned that many would be denied erroneously, would fail to appeal, and would encounter language barriers.

Advocates’ concerns appear to be supported by the results of the SSA’s recent unilateral review. The review showed that many claimants were denied because they were found to have "no severe impairment" and that a large number of those denied were age 70 or older. Also, the SSA improperly denied many other elderly noncitizens for "failure to cooperate" because, due to language barriers, they missed scheduled appointments or did not respond to correspondence.

The emergency instructions summarize existing SSA policy and provide specific clarifications and reminders that also will be published in the Federal Register as a Social Security Ruling. The instructions in EM-99012 require SSA and DDS workers to take a more careful and proactive approach in the cases of elderly noncitizens cases.

According to the instructions, elderly noncitizens are a special population requiring supportive assistance. Such assistance may include personal assistance in pursuing applications (self-help forms are a last alternative); providing interpreter assistance as early as possible, including at the initial interview and any DDS consultative examination; questioning claimants specifically about impairments commonly associated with the aging process; and being alert to good cause and failure-to-cooperate procedures. Failure-to-cooperate denials are appropriate only if the worker is unable to obtain information after exhausting all leads explained in POMS SI 00601.110 (e.g., telephone contact, third party contact, community organization assistance, interpreter assistance).

Workers should be alert to medically determinable impairments commonly associated with the aging process—e.g., arthritis, vision and hearing loss, and memory loss. Detailed questioning about such impairments and daily activities and limitations is necessary. This information, along with the need for interpreter assistance, should be provided when the consultative examination is performed. In the sample reviews, the SSA found that general medical consultative examinations, rather than those targeted at specific body systems, were usually the most helpful.

Because of language barriers, advanced age and limited education, many elderly noncitizens may not understand or be able to comply with requests to submit evidence or to attend a consultative examination. Personal assistance is required in cases where it appears that the individual is not cooperating. Failure to attend a consultative examination the first time will not, by itself, be sufficient reason for a denial. Follow-up contact with the claimant or a third party is required.

Regarding vocational issues, workers are alerted to two "special adverse profiles" described in POMS DI 25010.001B and in SSR 82-63. SSA "profiles" are designed to identify people who should be eligible for SSI as disabled but are likely to be erroneously denied for various reasons. In its review of medical denials, the SSA found that certain denied individuals fit the profiles but that, apparently, the profiles were not applied. The first profile deals with a 35-year or longer history of arduous unskilled work, inability to return to past work, and no more than a marginal—i.e., sixth grade—education. The second profile applies where there is no past relevant work, the individual is 55 or older and has no more than a limited—i.e., eleventh grade or lower—education.

The National Senior Citizens Law Center is monitoring the SSA’s implementation of the provisions in the Balanced Budget Act of 1997 and is collecting case examples about noncitizens who have been improperly denied SSI benefits, have not received interpreter assistance, or have not received proper service from the SSA. To discuss specific cases or for further information about noncitizen SSI eligibility, contact Ethel Zelenske in NSCLC’s Washington, D.C., office at (202) 289-6976, ext. 207, or Gerald McIntyre in the Los Angeles office at (310) 204-6015.

[Emergency Message: Processing Disability Claims – Qualified Aged Aliens – INFORMATION, File No. EM-99012 (Feb. 5, 1999).]