NOSSCR Visits the White House (Twice!)

This month, NOSSCR was honored to be among those invited to visit the White House as part of two Administration celebrations. First, on August 14, 2024, NOSSCR CEO David Camp joined Commissioner O’Malley and other heavyweights in the disability space to celebrate the 89th anniversary of the Social Security Act.

Then on August 28, 2024, NOSSCR’s Laura Beth Waller, Betsy Rosecan, and Jennifer Cronenberg joined David to help celebrate Disability Pride and the start of the Paris Paralympic Games.

NOSSCR is proud to be a strong voice in the disability community, and we thank you, our members, for trusting us to represent you.

SSA’s Action Plan for 2024

When Commissioner O’Malley joined Social Security, NOSSCR welcomed him with an 18-page letter detailing the challenges facing the agency and the productive steps that he could take to effectuate meaningful change. Since sending our Christmas letter to the Commissioner, we have been pleased with the agency’s willingness to listen to the advocate community and take bold steps to improve the disability system.

On August 14, 2024, SSA released their Action Plan for 2024. We are proud that the top priorities of NOSSCR and other advocates are in this plan, as are the needs of SSA’s front line employees and benefit recipients. The plan details modernization efforts, cost savings, updates to policy, and commonsense strategies that will improve agency operations.

This is an ambitious to-do list, to be sure. But it is responsive to the issues that NOSSCR has been highlighting for many years (including holidays!), and we are grateful that the agency is listening and is working with us. We are proud of all that has been accomplished this year, and we will continue to work with the agency as we implement these changes together.

Advocacy Update: Relief for Some Conn Victims

As we noted last month, NOSSCR has continued to advocate for relief for the victims of the Eric C. Conn fraud scheme. Finally, there is some light at the end of the tunnel. On August 19, 2024, Commissioner O’Malley sent a letter to Senator Mitch McConnell outlining the long-overdue relief that is finally coming to some of Conn’s former clients.

The relief includes:

• Terminating the collection of overpayments that stemmed from Conn’s fraud scheme AND refunding the money that has already been collected (with some limited exceptions).
• Canceling redetermination hearings in cases involving deceased beneficiaries.

As advocates, we know that any cases that have dragged on for more than a decade are necessarily complex and certainly not one-size-fits-all. The relief offered will not “fix” all issues for all of these claimants; however, the relief provided is substantial and will fundamentally change the lives of many of those who have been adversely impacted by this ongoing debacle.

If you have represented any of Conn’s former clients over the past few years, we encourage you to review their files (even if they are closed) to see if any of this relief applies to them. If you have questions about the implications of these changes, please feel free to email Jennifer at jennifer.cronenberg@nosscr.org. If any of Conn’s former clients contact your office looking for assistance or asking questions, please refer to this letter when attempting to guide them, or refer them to our friends at AppalReD Legal Aid, who have been instrumental in continuing this fight and assisting those in need.

NOSSCR Files OIG Complaint Against Vocational Expert

Tom Krause, NOSSCR Litigation Director

On August 19, NOSSCR filed a complaint with SSA’s Office of Inspector General (OIG), complaining of fraud or similar fault related to the testimony of vocational expert (VE) Jenifer Larue and other VEs. NOSSCR requested an audit of vocational expert testimony generally, and an investigation into the testimony of vocational experts generally, based on the information and allegations in the complaint letter.

In the Complaint, we relied on the extremely low bar for establishing Fraud or Similar Fault (FSF). Under the statute, it is enough to show “reason to believe” that fraud or similar fault was involved in the claim. See 42 U.S.C. § 405(u)(1). “Reason to believe” means reasonable grounds to suspect that fraud or similar fault was involved in providing evidence. Further, Similar Fault includes “an incorrect or incomplete statement” or material “information. . . knowingly concealed.” 42 U.S.C. § 405(u)(2); see Social Security Ruling (SSR) 22-1p. Given this definition of FSF, NOSSCR alleged there is “reason to believe” that the VE provided incomplete, incorrect, and misleading testimony and that the VE’s testimony constituted FSF.

NOSSCR alleged that the DOT is obsolete. NOSSCR also noted the data from the Department of Labor (DOL) and the DOL’s Bureau of Labor Statistics (BLS) are all reported by Standard Occupational Classification (SOC) group,[1] not DOT title. NOSSCR asserted that the Occupational Requirements Survey (ORS) is the most updated and reliable source of information on job descriptions and job numbers. We also charged the VE with misrepresentation when the VE failed to adjust her numbers to account for two important differences between the way Social Security defines work and BLS defines work (the definition of “full-time” work and the definition of “sedentary” work). When questioned regarding her methodology – when asked four times – the VE failed to give a straight answer. The VE never mentioned any of these highly relevant facts and so concealed material information.

We believe the VE misrepresented and concealed evidence regarding the statistical basis of her testimony and the data available to support her opinions. Among other things, the VE testified that there are 10,000 Addressers and 5,000 Document Preparers. The most recent and reliable data from the Department of Labor’s Bureau of Labor Statistics indicates there are no more than 6,509 unskilled sedentary jobs in the SOC group for Addressers and no more than 1,125 for the group including document preparers. As discussed below, even those numbers are too high.

The VE’s testimony regarding the Final Assembler (optical goods) position was grossly inaccurate and misleading. The VE testified there are 5,000 jobs nationally as Final Assembler, DOT 713-687.018. The VE provides no further justification for this number. The DOT describes this job as:

FINAL ASSEMBLER (optical goods)

Attaches nose pads and temple pieces to optical frames, using handtools: Positions parts in fixture to align screw holes. Inserts and tightens screws, using screwdriver.^[2]

The VE, then, testified that there are 5,000 people in the U.S. whose full-time duties are to attach nose pads and temple pieces to eyeglass frames.

BLS data shows this testimony is inaccurate. The SOC for Final Assembler is 51-9199, encompassing 1,589 DOT titles. BLS OEWS data indicates there are 224,867 jobs in that SOC group. ORS data indicate that less than 0.5% of these jobs are sedentary. Doing the math, 0.5% of 224,867 jobs means there are only 1,125 sedentary jobs in that entire SOC.^[3] If all 1,125 sedentary jobs in that SOC group are Final Assembler jobs, there are 0 sedentary jobs in the other 1,588 DOT titles in that group. This is statistically unlikely, to say the least. Of those 1,125 sedentary jobs, some are 35-39 hours/week, skilled or semi-skilled, or require sitting more than 6 hours.

In short, that 1,125 number is not reliable. Per the VE, there are 5,000 sedentary Final Assembler jobs. At a minimum, the VE concealed important information, portraying the data as definitive when it was not. This is Fraud or Similar Fault.

Similarly, the VE testified there are 10,000 jobs nationally as Addresser, DOT 209.587-010. Despite questioning, there is no further discussion of the source for this number. The data strongly contradicts her testimony.

The DOT describes the job as addressing “by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.”^[4] SSA has known since 2011 that the job is obsolete. The Courts have long recognized the position as obsolete. See, e.g., Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015) (https://casetext.com/case/alaura-v-colvin-1). Recently, the Commissioner conceded the job is obsolete as described in the DOT.^[5]

At best, the VE concealed the true nature of the duties associated with Addresser. The VE testified that the job has “evolved” and now, the individual places preprinted labels on envelopes; “overall”, those jobs have the “same functional abilities”. Though using computers, the VE asserted the job is still unskilled. The VE failed to note additional duties now commonly associated with the position, such as barcoding, pre-sorting, list management, variable data laser printing, folding, inserting, tabbing, warehousing, and shipping.^[6] The VE failed to justify her conclusions.

The Addresser job is in the SOC for Word Processors and Typists. OEWS data indicates the entire SOC contains only 26,034 jobs spread across 8 DOT titles. About 75% of the jobs included in the SOC involve sitting more than 6 hours per day. Recall the ALJ limited the claimant to sitting 6 hours a day. The claimant, then, can perform no more than 6,509 (26,034 x .25) Word Processors and Typists jobs. But the number of Addresser jobs available to the claimant is less than 6,509. As noted, there are 8 DOT titles in that SOC. There are 6,509 jobs spread over 8 DOT titles. It is not clear how many of those jobs are Addressers.^[7]

How did the VE come up with 10,000 jobs? The jobs most closely related to Addresser are, by definition, all in the same SOC group. But the claimant cannot perform any of the other jobs in that SOC as all 7 of the other DOT titles in this SOC are either semi-skilled or skilled:

The claimant cannot perform any of these 7 jobs as a matter of law. Id.^[8]

In short, there are no more than 6,509 jobs as Word Processors and Typists. An unknown number of these jobs are not Addressers. An unknown number of these jobs are semi-skilled or skilled. An unknown number of these jobs are 35-39 hours a week. But there are not 10,000 Addresser jobs. The VE concealed the necessary adjustments to her testimony. At best, the VE misrepresented or concealed important evidence; at worst, she fabricated data.^[9] Regardless, there is “reason to believe” the VE committed FSF.

Many thanks to NOSSCR Sustaining Member Kyle Sciolaro for providing the materials for this claim.

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[1] See BLS, Standard Occupational Classification (https://www.bls.gov/soc/).

[2]  DOT 713-687.018 (https://occupationalinfo.org/71/713687018.html).

[3]  Job Browser Pro notes 68 Final Assembler jobs.

[4]   DOT 209.587-010 (https://occupationalinfo.org/20/209587010.html).

[5]  SSA Emergency Message (EM) 24026 (June 22, 2024) (https://secure.ssa.gov/apps10/reference.nsf/links/06212024021759PM).

[6]  See Automated Mailing Systems, Inc., www.automailsys.com/; Alaura, supra, 797 F.3d at 503.

[7]   Job Browser Pro notes 1,976 Addresser jobs.

^[8]   The ALJ found the claimant did not have transferable skills. As a matter of law, he is not capable of performing semi-skilled or skilled jobs. See SSR 00-4p (https://www.ssa.gov/OP_Home/rulings/di/02/SSR2000-04-di-02.html); SSR 82-41 (https://www.ssa.gov/OP_Home/rulings/di/02/SSR2000-04-di-02.html).

[9]  In response to a question about the Final Assembler position, the VE testified she used a combination of BLS data, Job Browser Pro, her “education”, and “18 years of work experience.” The VE refused to explain her methodology. Nothing in the VE’s testimony or resume suggests any expertise in statistics or data manipulation or any extended study of this SOC.

President’s Corner

Rick Fleming, NOSSCR President

It has been a very busy summer at NOSSCR. Earlier this month we held Circuit elections, and I will announce the results at the membership meeting on August 30 from 6-7 P.M. Eastern. Thank you to all the candidates and thank you to all who voted. The newly comprised NOSSCR board will then meet at the NOSSCR office for a board meeting on Friday September 13.  

Mark your calendars to join a webinar on September 12 from 3-3:30 P.M. Eastern entitled “Make the Invisible Visible: Proving Subjective Symptoms” presented by Jason Heinze. In this short 30-minute webinar, Jason will review a variety of methods for documenting these invisible symptoms. He’ll also provide forms you can start using in your practice right away to collect this helpful evidence from your clients. 

Then, on September 20 and September 21 the Fifth Circuit Conference (FOSSCR) will take place in San Antonio TX. 

Next, on October 10-12, NextGen will be in Portland for its retreat. If you have been practicing for less than ten years or are under the age of 40, this event is an experience like no other. The smaller size group is perfect for building deeper connections while earning CLE credit along with a slate of activities true to the city’s character. 

Finally, join us in Raleigh, NC from October 24-25 for the SE Regional Conference. 

If you are interested in sponsoring or exhibiting at any of these events please reach out to us at nosscr@nosscr.org.

NOSSCR is strong because of its members—we strive to bring you top-notch continuing education sessions and fun opportunities to connect with your fellow members. So please join us at our late summer and fall events – and let us know if there’s a program or event that you would like to see in the future! 

Social Security Makes Progress Toward Online SSI Application

Social Security has taken the next step in their years-long effort to streamline and modernize the SSI application. On August 27, 2024, the agency released their proposed request, seeking public comment on their plan to implement the “SSI Simplification Phase I initiative, or iSSI.”

This next step in the agency’s mission “to develop a fully online, simplified SSI application process” will see a shorter, plain language, electronic version of the SSI application, which should be available to some applicants by the end of 2024.

NOSSCR supports the agency’s ongoing modernization efforts, and looks forward to a fully realized online SSI application.

You can review the language of the proposal and submit comments here. Comments must be submitted no later than September 26, 2024.

Piemonte’s Perspective

George Piemonte, NOSSCR 11th Circuit Board Representative

Another good claimant to have is a worker who needs excess training or supervision. Unskilled workers will not be coddled. SVP 2 jobs can be learned in up to 30 days, so there is no reason an employer will keep a worker who cannot learn the job in that time (maybe even less). A claimant who does not meet the requirements of 12.05 may take longer to learn the job or may need reminders. Physical or mental impairments may reduce concentration and attention and cause the claimant to be off task.

Ask the VE why an employer would keep a worker who needs more time to learn the job, needs extra reminders, or is off task when they can hire someone off the street who can do the job in 30 days or less, stay on task, and does not need reminders.

It is crucial to build a strong case demonstrating that your claimant cannot learn an unskilled job in 30 days or less. Similarly, proving their inability to stay focused on the job or their need for excessive reminders is equally important. This evidence can be gathered from your claimant’s testimony, lay statements, and medical opinions. A statement from a previous employer, supervisor, or co-worker would be particularly beneficial. As we have discussed before, be creative. Your role is to demonstrate why your claimant is disabled.

Senator Tim Kaine Urges SSA to Take Action on Long COVID

At our conference in Nashville, you heard from speakers Rachel Beale and Senator Tim Kaine about the importance of SSA taking seriously the ongoing suffering of those with long COVID. On August 5, 2024, Senator Kaine submitted a letter to Commissioner O’Malley—also signed by Senators Markey, Duckworth, King, Sanders, Blumenthal, and Smith—requesting agency action on long COVID.

In this letter you will recognize several of NOSSCR’s priorities (adopting a Listing that recognizes breaks/naps/absences/off-task, reinstating the treating physician rule, and providing representative access to all exhibits at the initial and reconsideration stages). This letter is the result of many months of work, and we hope the agency will take seriously the need for consequential long COVID policies.

You can read the Senator’s Press Release here and read/download the full text of the letter below.

Krause Chronicles: My Journey to NOSSCR

Tom Krause, NOSSCR Litigation Director

This is the story of how I became NOSSCR’s Litigation Director. As the Grateful Dead said, “What a long, strange trip it’s been.”[1]

I started working for the Legal Services Corp. of Iowa (LSCI) on November 29, 1982. There were no computers in the office, but lots of books. You know, lots of pieces of paper bound together with leather covers.

I took three weeks off for an Iowa bar review course where I met a guy named Ray Cebula, who was starting in our Mason City office.[2] After that, I took the Iowa Bar – 2 1/2 days, all essay questions, and graded immediately. We finished the bar exam at noon on Wednesday, learned the results on Thursday evening, and were admitted on Friday morning. I’ve heard the bar exam has changed a little since then.

I first learned about Social Security Disability benefits at Legal Services. One of my first assignments was to help draft the brief in Baugus v. Sec’y of Health & Hum. Servs.[3] I drafted one small part of the brief and can’t remember my issue. Fortunately, Chief Judge Donald Lay and Judge Richard Arnold, two excellent judges friendly to our clients, were on the panel. They reversed the ALJ’s decision and awarded benefits.

This was an exciting time to learn Social Security law. To put everything in context, this was the height of the Reagan Administration’s efforts to cut off as many disability claimants as possible.[4] In 1982, the Eighth Circuit ruled the Secretary of Health and Human Services did not exceed his statutory authority in issuing the Medical-Vocational guidelines (the Grids), including a provision limiting the duty to call a vocational expert.[5] Congress passed the Social Security Disability Benefits Reform Act of 1984,[6] establishing the Medical Improvement Standard for Continuing Disability Reviews and requiring SSA to consider pain as a factor in determining disability. Later that year, the Eighth Circuit decided Polaski v. Heckler.[7] The Polaski decision defined the pain standard in the Eighth Circuit and was cited in virtually every ALJ decision for the next 30+ years. In 1986, the Supreme Court decided Bowen v. City of New York,[8] outlining the requirements for class actions against Social Security. There was a lot to learn!

One day, I was looking around our library. I don’t remember what I was looking for, but I remember what I found – a 3-ring binder with copies of the NOSSCR Forum. I had never heard of NOSSCR, but the articles looked interesting. I should note that our program had one subscription to the Forum. Our Central Office photocopied the Forum every month and mailed out copies to the 10 Regional Offices. Every month, our secretary circulated the latest copy of the Forum, then punched holes in it and put it in the binder. I read every issue from cover to cover.

A few years later, LSCI’s Social Security Task Force met in Des Moines. A private attorney named Bob Pratt gave an articulate, knowledgeable, moving, and insightful presentation. And he spoke of the virtues of NOSSCR membership![9] I wanted to join NOSSCR, but it was too expensive for our legal services group (and, at that time, NOSSCR did not offer a reduced rate for non-profit members).

Fast forward a few more years to 1995. I left LSCI and went into private practice. One of the first things I did was join NOSSCR as a Sustaining Member. My first NOSSCR conference was amazing! I had never been to a conference like that and had never been to Seattle!

While in private practice, I litigated and settled a class action against the Iowa Disability Determination Services (DDS) that I had filed before leaving LSCI.[10] I also filed a similar class action against the Nebraska DDS.[11] A young attorney from Gateway Legal Services came up to see me and talk about those class actions. That’s when I first met David Camp. More about that later.

I became a fervent NOSSCR supporter, attended many NOSSCR conferences, spoke at many NOSSCR conferences, and served on the NOSSCR Board for eight years. When I left private practice in 2018 to work for the Southern Minnesota Regional Legal Services (SMRLS), I maintained my NOSSCR Sustaining Membership. I was happy working at SMRLS and thought I would remain there until I retired.

Then a funny thing happened. In late 2023, David Camp,[12] the young attorney I had met 20 years earlier, called me about becoming the first NOSSCR Litigation Director. My response was, “When do I start?”

Since then, I have worked on a lot of interesting issues, though the new Commissioner’s willingness to adopt many important reforms has taken some of the wind out of the litigation side of the position. Still, I have worked on DOT/vocational issues, fraudulent consultative examinations, CIOX/MRO medical records issues, trainings, and much more. Most recently, we filed a complaint against a vocational expert alleging fraud or similar fault. My “Holy Grail” is to litigate two class actions; one would challenge SSA’s use of the DOT and the second would challenge DDSs’ evaluation of subjective symptoms and assessment of residual function capacity.

Watch the Forum for updates on these issues and others that will affect your practice and your clients. And remember, “Once in a while you get shown the light in the strangest of places if you look at it right.”[13]

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[1]    Grateful Dead, Truckin’, American Beauty (Warner Bros. Records, 1970). The name “Grateful Dead” was taken from a reference to the Egyptian Book of the Dead but has a corollary in Medieval Christian theology. C. Dickey, The Indebted Dead: Tracing the history of the Grateful Dead folktale and the evolving obligations of being alive, Lapham’s Quarterly (June 29, 2020) (https://www.laphamsquarterly.org/roundtable/indebted-dead).

[2]    Ray works for Cornell University’s Yang-Tan Institute on Employment and Disability. He frequently presents on Return-to-Work and Overpayment issues, including at the 2024 NOSSCR Conference in Nashville and NOSSCR’s August 21-22 Overpayments training.

[3]   Baugus v. Sec’y of Health & Hum. Servs., 717 F.2d 443 (8th Cir. 1983) (An ALJ’s hypothetical question to a vocational expert is a properly phrased hypothetical if it includes all the plaintiff’s relevant impairments and limitations which the ALJ found credible).

[4]   See, e.g., Chambers, D. E. (1985). The Reagan Administration’s Welfare Retrenchment Policy: Terminating Social Security Benefits for the Disabled. Review of Policy Research, 5(2), 230-240 (https://doi.org/10.1111/j.1541-1338.1985.tb00353.x).

[5]   McCoy v. Schweiker, 683 F.2d 1138 (8th Cir. 1982) (en banc); see Heckler v. Campbell, 461 U.S. 458 (1983).

[6]   Pub. L. 98-460, 98 Stat. 1794 (1984).

[7]   Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted).

[8]   Bowen v. City of New York, 476 U.S. 467 (1986).

[9]   Bob Pratt went on to become U.S. District Judge Robert W. Pratt of the Southern District of Iowa. See Krause, Honoring the Career of Senior District Judge Robert Pratt, NOSSCR Forum(June 2024).

[10]   See Laird v. Stilwill, 982 F. Supp. 1345 (N.D. Iowa 1997); Laird v. Stilwill, 969 F. Supp. 1167 (N.D. Iowa 1997); Laird v. Ramirez, 884 F. Supp. 1265 (N.D. Iowa 1995).

[11]   See Surrell v. Willman, 16 F. Supp. 2d 1085 (D. Neb. 1998).

[12]   At the time, David was NOSSCR’s Interim Director. He is now our Executive Director.

[13] Grateful Dead, Scarlet Begonias, Live from the Mars Hotel (Grateful Dead Records, 1974).

Just Ask Jennifer

Jennifer Cronenberg, NOSSCR Senior Counsel and Director of Legal Information

This month saw the publication of two highly-anticipated rules in the Federal Register: 1) Changes to the Administrative Rules for Claimant Representation and Provisions for Direct Payment to Entities, and 2) Setting the Manner of Appearance of Parties and Witnesses at Hearings.

There is a lot to unpack with both of these rules, and NOSSCR will be offering more in-depth analysis and trainings as we learn more and as the updated forms become available. For now, I will answer a few of the most commonly asked questions and give a quick overview.

Direct Payment to Entities

Q. Will my firm be able to register as a representative with its own ERE account?

A. No, the agency stopped short of recognizing the firm as the representative. Instead, they created a process where representatives will be able to assign fees directly to a firm or other entity.

Q. Will a firm be able to stop a representative from severing the assignment (if, for example, the representative leaves the firm on bad terms and tries to take clients with him)?

A. There is nothing within the agency’s rules that prevents a representative from severing the assignment prior to a favorable decision. We recommend structuring your employment contracts with representatives such that there is a business solution for this problem.

Like you, we still have outstanding questions on the implementation of these changes. We have been meeting with SSA senior staff to obtain answers to the following questions, and expect to have responses soon:

• When will the new 1696, 1699, and 1694 be available?
• Is it true that even non-profit and legal aid representatives must complete and submit the updated SSA-1699 even though they do not plan to collect any fees?
• Is there a deadline for representatives to complete the 1699 registration step?
• Should the 1699 be faxed to the Office of Central Operations at 1-877-268-3827?
• When all firms re-register by completing an updated SSA-1694, where and by what method should they submit this form?
• Where should representatives follow-up to ensure that their registrations and their firm’s re-registrations have been properly processed?
• If representatives previously submitted non-signed 1696s, do they need to replace these with signed 1696s in each case?
• If representatives wish to assign fees to an entity for pending cases, do they need to submit new 1696s for each pending case?
• If yes, is there a process in place for accomplishing this efficiently?

We will update you as soon as we have answers to these questions.

Hearing Modalities

Q. Will my claimant be able to object to an in-person hearing?

A. No. SSA left in-person hearings as one of the default options for the agency without providing the opportunity for claimants to object. This means that OHO/ALJs can schedule in-person hearings even if the claimant has not objected to an audio hearing. HOWEVER, as OHO Deputy Commissioner Lytle noted in March, audio and online video options “continue to be easy and secure options and result in improved public service and overall efficiency.” Lytle continued by noting that “remote hearings allow us to leverage judicial capacity and balance hearing requests around the country.” Thus, it is our expectation that if a claimant does not object to an audio hearing (and/or if a claimant opts-in to an online video hearing) the agency will typically default to audio/online video instead of in-person.

Q. If my claimant wants an audio hearing, is there anything that I need to do to indicate this?

A. No. Audio hearings are one of the default options that the agency can choose. The claimant does not need to do anything if she is willing to accept an audio hearing. However, if the claimant wants to avoid an agency video (formerly “VTC”) hearing, the claimant should still return the new “Revised Objection to Appearing by Video Teleconferencing” form indicating this objection. In other words, you do not need to opt-in to audio hearings, but you do still need to opt-out of agency video hearings.

Again, we are waiting for the release of SSA’s updated forms. Once we have those, we will offer a quick training to review the options and to discuss best practices.

We know that neither of these polices are perfect, but they both substantially improve and clarify current policy. It is our hope that once both policies are fully in effect, your business operations will run more smoothly. And remember, we are always here to answer your questions and help you troubleshoot complex issues. You can reach me at jennifer.cronenberg@nosscr.org.

Legislative Spotlight

Betsy Rosecan, NOSSCR Government Relations Director

On August 2, 2024, Sen. Bernie Sanders (I-VT) introduced S. 4964, the Long COVID Research Moonshot Act of 2024. The bill has five cosponsors, all Democrats. A companion bill has not yet been introduced in the House. S. 4964 was referred to the Senate Committee on Health, Education, Labor, and Pensions where it is awaiting further action.

If enacted, his legislation would provide $1 billion in mandatory funding each year for 10 years to the National Institutes of Health (NIH) to support long COVID research, pursuit of new treatment options, and expanded care for long COVID patients nationwide. Among other things, the funding would go toward the creation of a long COVID database, advisory board, and new grant process that would accelerate clinical trials. Further, funding would be used to create multidisciplinary long COVID clinics. NOSSCR supports this legislation.

The text of the bill is not yet available online, but it can be found here once it is released.

Understanding the Complexities of SSA Regulations: Insights from Jones v. O’Malley

Adriana M. de la Torre, Sustaining NOSSCR Member, Co-founder Tower Law Group

In the recent decision of Jones v. O’Malley, on July 12, 2024, the Fifth Circuit rendered a significant judgment that offers valuable lessons. The court affirmed the denial of Jones’ claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), but this case has it all: disability law, due process, equal protection, suspect classes, rational relationships to legitimate governmental purposes, and even a bit of history as to why the Agency revised its rules. If you’re practicing in this space, it’s a decision worth digging into. Let’s get into it.

The Contention: Outdated vs. Updated Listings

Jones’ primary argument centered on the Agency’s use of Listing 1.15, which was implemented after he filed his claims, instead of the older Listing 1.04. Given the evidence, Jones felt that the older Listing should apply to his case, arguing that the use of the new Listing was an impermissible retroactive application that violated his Due Process and Equal Protection rights.

However, the Fifth Circuit disagreed. It emphasized that the Agency’s regulations are intended to reflect current medical standards and practices. Applying these updated standards to pending claims does not violate Due Process or Equal Protection rights. The Court even acknowledged that while Jones may feel disadvantaged by the timing, “such consequences are inevitable” when dealing with evolving regulations. The Court also noted that the Agency’s “decision to revise its musculoskeletal Listings was not unusual or unforeseeable” and that the agency’s updates reflect “advances in medical knowledge, treatment, and methods of evaluating impairments.”

The key takeaway? The Agency’s goal is to ensure that its criteria stay relevant with modern medical science, even if that means some pending claims are disadvantaged by the implementation of new rules.

Practice Tip: Stay Updated with SSA Regulations

One of the biggest takeaways from this case is the importance of staying current with SSA regulations. The rules change, and those changes can significantly impact the outcome of a case. As this decision shows, courts are likely to uphold the application of updated regulations.

So, if you’re preparing for a hearing or an appeal, make sure you’re familiar with the latest Listings, their applicability date, and how they might affect your client’s case.

The Merits: Assessing Impairments Against Listings

Moving beyond the procedural arguments, Jones also contended that the Administrative Law Judge (ALJ) failed to properly assess whether his impairments were medically equivalent to a Listed Impairment. Specifically, Jones argued that his impairments should have been considered under the criteria of Listing 1.04 (as it existed when he filed) or, alternatively, that they were equivalent to those in Listing 1.15.

The Fifth Circuit, however, found substantial evidence supporting the ALJ’s determination that Jones did not meet or equal the criteria of Listing 1.15. A crucial point was the lack of documented need for assistive devices and the extent of his use of upper extremities. As the Court highlighted, “there was no evidence to support the medical necessity of a hand-held assistive device nor an inability to use both upper extremities.”

Practice Tip: Comprehensive Medical Documentation is Key

This brings us to another critical point for practitioners: the importance of comprehensive and up-to-date medical documentation. The Court’s decision underscores how vital it is to ensure that every aspect of your client’s condition is thoroughly documented, especially in relation to the specific criteria of the relevant SSA Listings.

When preparing for a hearing or an appeal, take the time to go through the Listings carefully and make sure that the medical records explicitly address each required element. This not only strengthens your case but also reduces the chances of a negative outcome based on the ALJ or Court’s perception of insufficient evidence.

The Employment Argument: Distinguishing from Precedent

Jones also argued that his frequent medical treatments significantly interrupted his ability to maintain full-time employment. He cited precedents like Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000) and Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980), which dealt with similar issues. However, the Fifth Circuit distinguished this case from those precedents, noting that there wasn’t substantial evidence showing that Jones’ treatment regimen actually precluded sustained employment.

In discussing Jones’ arguments, the Court made it clear that “Jones, who bears the burden of proof, has not shown this to actually be true,” emphasizing the lack of evidence in the administrative record demonstrating the extent of work time Jones would have missed due to medical appointments and treatments​.

Takeaway: Context Matters in Employment-Related Claims

This aspect of the ruling is a good reminder that context is everything when it comes to arguing employment-related disability claims. While past precedents are useful, courts will always look at the specifics of the current case. It’s essential to build a narrative that not only fits the legal precedents but also convincingly demonstrates how your client’s condition and treatment specifically impact their ability to work.

The Importance of Diligence and Staying Informed

The Jones v. O’Malley decision highlights the procedural diligence required in disability determinations. It reinforces the burden of proof on claimants to demonstrate both the severity of their impairments and their impact on employability.

This case serves as a reminder to stay informed about evolving Agency regulations and to ensure that your cases are built on a foundation of comprehensive, well-documented medical evidence. The standards are stringent, but with careful preparation and a thorough understanding of the law, you can effectively advocate for your clients in this challenging field.

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As of August 2024

Daily Dose of Data from SSA

Take a look at the latest publications from Social Security.

Monthly Statistical Snapshot, July 2024: A monthly snapshot of statistics on Social Security beneficiaries and Supplemental Security Income recipients.

SSI Monthly Statistics, July 2024: These monthly tables provide statistics for federally administered payments and awards under the Supplemental Security Income (SSI) program.

Social Security Bulletin, Vol. 84, No. 3: Social Security’s quarterly publication. This month, a look at Indirect Measurement of Intersectionality Using Data from the Understanding America Study, and A Competing Risks Analysis of Older Americans’ Poverty Entry and Exit Patterns in the Health and Retirement Study.

Estimate of the Financial Effects on the Social Security Trust Funds of the “Protecting and Preserving Social Security Act,” introduced on July 31, 2024 by Senator Mazie Hirono and Representative Jill Tokuda.

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