Wes Kappelman, 8th Circuit NOSSCR Member

This summer the Commissioner issued a regulation change and ruling, SSR 24-2p, explaining that the lookback period for potential past relevant work was shortened to five years. See 89 Fed. Reg. 27,653 (April 18, 2024) (reg change published, to be effective June 8, 2024); 89 Fed. Reg. 48,138 (June 5, 2024) (deferring effective date from June 8, 2024, to June 22, 2024); 89 Fed. Reg. 48,479 (June 6, 2024) (SSR 24-2p). It was in SSR 24-2p at footnote 1 where the Commissioner included the following concerning how the agency would apply this rule:

We will use this SSR beginning on its applicable date. We will apply this SSR to new applications filed on or after the applicable date of the SSR and to claims that are pending on and after the applicable date. This means that we will use this SSR on and after its applicable date in any case in which we make a determination or decision. We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the applicable date of this SSR, we will apply this SSR to the entire period at issue in the decision we make after the court’s remand.

A question for federal court cases denied at step four where the new PRW window would matter—where at least some of the PRW jobs the ALJ relied on to deny benefits was outside the 5-year window—is whether this regulation can be applied to cases pending in federal courts.

In Henrickson v. O’Malley, No. 8:23-cv-00320-JFB-JMD, 2024 WL 4169548 (D. Neb. Sept. 12, 2024), the district court remanded for application of the new PRW rules under the specific circumstances of that case. While the Commissioner disagreed that the new rules applied in the civil action, the Commissioner had agreed to remand the Henrickson case and agreed it would apply the current agency rules on remand.

The district court found the 2024 Rule affects Henrickson’s case, as prior PRW was a contested and dispositive issue before the ALJ, and the job the ALJ relied on to deny at step four would not be PRW under the 2024 Rule. Relying on Sloan v. Astrue, 499 F.3d 883, 889 (8th Cir. 2007), and other authorities, the district court found remand was warranted to allow the agency “to apply the 2024 Rule and supplement the evidentiary record as necessary.” The district court explained in footnote 3 that “remand allows for application of the 2024 Rule without addressing the unsettled retroactivity questions raised in Henrickson’s supplemental briefing.”

The Henrickson order provides useful discussion as to how courts should address regulation and rule changes while cases are pending in federal courts and potentially forecasts a future case may call for addressing the unsettled retroactivity questions that had been briefed.

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.