SSA has issued or revised several subregulatory guidance documents that may be of note to claimants’ representatives: 

EM 23013

Issued on March 1, 2023, this EM provides background and guidance regarding retroactive District of Columbia state supplement payments that were issued to SSI recipients on March 2, 2023.

EM-20014 REV 7

This revised EM was issued on March 14, 2023 and updates the chart reflecting Pandemic-Related Assistance that meets the criteria for disaster assistance exclusions to include the following cash assistance programs: Saint Paul College Bound Boost, Evanston (Illinois) Guaranteed Income program, Chicago Resiliency Fund 2.0, and Rise Up Cambridge.  he revised EM also updates the chart reflecting Pandemic-Related Assistance that does not meet disaster assistance criteria to clarify that “hazard pay and other premium wage payments paid by employers, due to the pandemic, are subject to normal SSI income counting rules and are treated as wages.” In addition, the Maine Disaster Relief Payment amount was corrected to $285 (instead of $258) and references to AM-20016 policies and procedures for Determining Countable Earnings for Substantial Gainful Activity (SGA) Decisions were removed.  EM-20014 REV 7 replaces the prior update issued on November 29, 2022.

EM-23019

Issued on March 23, 2023, this EM notifies field office technicians and DDS adjudicators about updates for processing Expedited Reinstatement (EXR) denial notices. “Previously, when DDS denied a request for EXR, FO technicians prepared and sent the denial notice and included a Personalized Disability Explanation (PDE) provided by DDS.  Effective March 25, 2023, FO technicians will no longer send the denial notice and PDE.  Disability Case Processing System (DCPS) changes now allow the DDS adjudicators to automatically send the denial notice.”

EM-23021

Issued on March 27, 2023, this EM provides instructions based on the Second Circuit’s decision in Sczepanski v. Saul, 946 F.3d 152 (2020), in which the Court of Appeals held that the claimant’s ability to complete a probationary period is relevant to whether the claimant can perform significant numbers of jobs in the national economy at step five.  In Sczepanski, the RFC included a limitation that the claimant could miss up to one day of work per month. At the hearing, the VE testified that a typical employer would tolerate missing up to two days per month over the course of employment, but no absences are usually tolerated during probationary periods at the start of employment. The ALJ then issued a decision finding the claimant not disabled based on the ability to perform other work at step five and the Second Circuit reversed and remanded for further proceedings.  EM-23021 instructs all adjudicators and reviewers at DDS, OHO, and OAO to identify and code cases where the claimant resides in Connecticut, New York, or Vermont, and the record contains vocational evidence that the occupation(s) identified at step five require probationary periods where work demands during the probationary period exceed the claimant’s RFC. The EM also provides instructions for other agency staff at field offices, workload support units, payment centers, etc. to use when coding cases for claimants who self-identify their cases as meeting the Sczepanski criteria.  Notably, the EM directs identification and coding of appropriate cases while the agency evaluates whether to publish an Acquiescence Ruling; it does not change existing adjudication policy. 

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SSA’s subregulatory guidance can be found online at https://secure.ssa.gov/apps10/ and www.ssa.gov/OP_Home/hallex/hallex.html.