January 2024 Print Edition
NOSSCR Board Appoints David Camp CEO
This week, NOSSCR’s Board voted to elevate NOSSCR’s interim CEO, David Camp, to the full-time position of Chief Executive Officer.
Camp has been serving as the organization’s interim CEO for the past five months. He brings decades of experience to the role, including more than 25 years as an attorney in private practice working on issues involving the Social Security Administration. He has been involved with NOSSCR for many years, serving on the Board of Directors from 2017 to 2022 and as the organization’s President from 2021 to 2023.
“We are delighted to have David Camp as our permanent CEO,” said Rick Fleming, NOSSCR’s current President. “His remarkable career accomplishments and deep commitment to our organization and its mission make him exceptionally qualified for this role. Under his guidance, we are confident that NOSSCR will reach new heights in advocating for the rights of Social Security claimants.”
Camp is recognized as an authority on issues involving the Social Security Administration, serving as a resource for elected officials and journalists, testifying recently on Capitol Hill, and regularly presenting to NOSSCR and related organizations on Social Security issues. For many years, Camp has worked with advocates and congressional offices to support legislative improvements. He has also built relationships with SSA officials who turn to him as a key stakeholder.
Camp has also been recognized for his contributions to NOSSCR as a volunteer. He received the Eileen Sweeney Distinguished Service Award in 2013, NOSSCR’s internal accolade recognizing excellence and impact, for his successful efforts in advocating against SSA’s Secret ALJ Policy.
The Social Security Administration has also lauded Camp, presenting him with the Regional Commissioner’s Public Service Award for his training of SSA attorneys.
After earning his bachelor’s degree in mathematics from the University of Wisconsin-Madison, Camp went on to receive his Juris Doctorate from Washington University in St. Louis.
Under Camp’s interim leadership at NOSSCR, the organization has witnessed growth in membership and revenue — a testament to his influence within the practice area. With his understanding of Social Security law and policy and demonstrated leadership skills, Camp is well-positioned to guide NOSSCR toward continued growth, influence, and impact.
President’s Corner: NOSSCR’s 2024 Priorities
Rick Fleming, NOSSCR President
As NOSSCR welcomes a new year, we also welcome a new Commissioner and a permanent leader. David Camp, who has served as NOSSCR’s interim CEO for the past five months, was hired by the Board this week for the position of CEO.
NOSSCR was one of the first phone calls Commissioner O’Malley made once confirmed, and David and the Commissioner remain in close contact. One of the first results of this direct cooperation is the new status report that now shows a representative’s list of associated initial and reconsideration claims. NOSSCR and SSA worked for several weeks, including on Saturdays, to ensure this rollout came to light. This is a win for both sides: Representatives are now able to ascertain with which claims they are associated, and SSA should now receive fewer telephone calls inquiring if a 1696 has been processed. SSA issued guidance on this new IC/RC status report, which you can find on page 13-14 here.
As NOSSCR members are acutely aware, there are several challenges facing SSA’s disability adjudication process. NOSSCR has identified the following top policy priorities for 2024 and remains committed to working with the Commissioner to find solutions to these problems:
- The growing claims backlog.
- The excessive number of overpayments with collection practices and policies that fail to consider equity and good conscience.
- Representation fees that limit access to quality advocates and the failure to annually adjust the representative fee cap.
- SSA policies that unfairly harm disability claimants, slow the process, and increase costs.
- SSA’s outdated systems.
In addition to our policy agenda, NOSSCR is working hard to provide valuable programming and resources for members. 2024 is full of member events, and we look forward to seeing you at as many of them as possible. Mark your calendars for a Litigation Update Webinar on Monday, January 29, with Litigation Director Tom Krause and a no-cost Legal Services CLE for Legal Services Members, our Non-Profit members, on February 6th.
#SaveTheDate: As you plan your secured leave this year, refer to this helpful list of NOSSCR events in 2024.
Thank you for your support of NOSSCR and we look forward to partnering with you to ensure a successful 2024.
Litigation Look-ahead: Will Chevron Deference See Its 40th Birthday?
Tom Krause, NOSSCR Litigation Director
The doctrine of Chevron deference has been around almost as long as NOSSCR. Chevron deference provides that, where a statute is ambiguous, a reviewing court should defer to a reasonable interpretation of the statute the agency administers. The Supreme Court is now weighing two cases that could end Chevron deference, a doctrine often raised by the government in litigation under the Social Security Act.
Almost 40 years ago, in June 1984, the U.S. Supreme Court decided Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 838, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). The Chevron decision involved a legal challenge to a change in the Environmental Protection Agency’s (EPA’s) interpretation of the Clean Air Act of 1963. Under Chevron deference, judicial review of an agency’s construction of the statute which it administers, looks to whether Congress has directly spoken to the precise question at issue. If Congress has not directly spoken to the issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. In Chevron, the Court concluded the EPA’s interpretation of the statute represented a reasonable accommodation of manifestly competing interests and was entitled to deference. Id.
On January 17, 2024, the Supreme Court heard oral argument in two challenges to Chevron deference. Family-owned companies that fish for Atlantic herring oppose the application of Chevron deference to the implementation of an extensive federal fishery management program. Amy Howe, Supreme Court to hear major case on power of federal agencies, SCOTUSblog (Jan. 16, 2024). Several conservative justices expressed deep skepticism of the federal framework while the liberal justices offered support for keeping the system in place. Justice Amy Coney Barrett, one of three Trump appointees to the Court, raised the issue of “inviting a flood of litigation” if the Court reversed course. Carrie Johnson, Case brought to Supreme Court by herring fishermen may gut federal rulemaking power, NPR Law (Jan. 17, 2024).
While many commentators note the possibility that the Court might overrule Chevron, at least one commentator believes that it is not just possible, but probable. See Amy Howe, Supreme Court likely to discard Chevron, SCOTUSblog (Jan. 17, 2024). Government Executive’s Eric Katz agreed, noting Elizabeth Prelogar, the U.S. solicitor general, said Chevron followed precedent that long predated its formal creation and overruling it would cause “profound disruption.” Eric Katz, Supreme Court appears ready to end deference to federal agency expertise, Gov’t Executive (January 17, 2024).
At this point, we don’t know the fate of Chevron deference and probably will not know until June, possibly July. In the meantime, let’s review five cases where the Supreme Court discussed Chevron deference in cases arising under the Social Security Act.
1. Smith v. Berryhill, ___ U.S. ___, 139 S. Ct. 1765 (2019)
In Smith, the Court held that the Appeals Council’s dismissal of a claimant’s untimely request for review of an ALJ’s merits decision is a “final decision . . . made after a hearing” and so subject to judicial review. The Court refused to accord Chevron deference to a policy limiting federal court review of an agency decision.
2. Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012)
Two children, conceived through in vitro fertilization after the death of their late father and who could not inherit from the decedent under Florida’s intestacy law, were not entitled to Social Security survivor’s benefits. The Court held that SSA’s interpretation of the ambiguous statute was at least reasonable and so was entitled to deference under Chevron.
3. Barnhart v. Thomas, 540 U.S. 20, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003)
The Court upheld SSA’s decision finding the claimant not disabled as she could return to past relevant work as an elevator operator, even if that job no longer existed in significant numbers in the national economy. The Commissioner’s policy was a reasonable interpretation of the Social Security Act defining “disability,” and was entitled to deference under Chevron.
4. Barnhart v. Walton, 535 U.S. 212, 122 S. Ct. 1265, 152 L. Ed. 2d 330 (2002)
In Walton, the Court found SSA’s regulation constituted a reasonable interpretation of the Social Security Act and entitled to Chevron deference. SSA’s policy provided that a return to work within 12 months of disability onset and before the adjudication of disability precluded a finding that a claimant is disabled or entitled to a trial work period.
5. Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163, 116 S. Ct. 604, 133 L. Ed. 2d 545 (1996)
The Court concluded a grant of certiorari, vacatur, and remand (GVR) was appropriate in light of a new interpretation of the Social Security Act that SSA had adopted concerning the establishment of paternity under state law. SSA re-examined the role of state paternity and intestacy laws in the federal benefits scheme and interpreted the Social Security Act as requiring a determination, in some circumstances, of whether the state intestacy statute is constitutional. The Act directed the Commissioner of Social Security—not, in the first instance, the courts—to apply such law as would be applied by the state courts. The Court deferred to SSA’s recently changed policy.
For now, we are left with questions. Will the Supreme Court overrule Chevron? Limit its scope? Will the Court’s ruling affect any of the Social Security cases discussed above? A quick search on WestLaw found 10,000 cases citing Chevron. What will happen to all these cases? Will they all be re-litigated with differing results? This summer, the Supreme Court will rule. We will have to wait and see what happens after that. Stay tuned; we will keep you updated.
So You Want to Teach Social Security Law? – Free Teacher Guide from Professors Frank Bloch and John Dubin
At the NOSSCR Annual Conference in 2021, Vanderbilt Professor Emeritus of Law Frank Bloch and Rutgers Professor of Law Jon Dubin conducted a session on teaching Social Security Law, Policy and Practice at law schools, featuring their 2016 casebook SOCIAL SECURITY LAW, POLICY AND PRACTICE: CASES AND MATERIALS (West Academic Pub. Co. 2016). They presented ideas and sample syllabi for teaching the course, as well as excerpts from the Teacher’s Manual for the casebook. Since then, they have published annual cumulative supplements through 2023, and are working on the 2024 update.
Bloch and Dubin also updated the Teacher’s Manual, which outlines how to teach this course. They have made copies of the new Teacher’s Manual and current cumulative update/supplement available to NOSSCR members—free of charge—for those who want to teach this course at their local law schools or otherwise. For details on obtaining copies, contact Frank Bloch (frank.bloch@vanderbilt.edu) or Jon Dubin (Jdubin@law.rutgers.edu).
Join us in Nashville, May 8-11, for the 2024 NOSSCR Annual Conference
NOSSCR’s Annual Conference gathers Social Security disability representatives and advocates from across the nation. Industry leaders will provide insightful presentations on navigating the claims process, maximizing representatives’ chances of winning cases, running a firm/practice more effectively, finding prospective new clients, and more.
In addition to our jam-packed schedule of continuing education and networking events Wednesday through Saturday, new this year, Wednesday morning will feature two tailored tracks: one for newer practitioners (Social Security boot camp) and one for the team members of representatives – paralegals, legal assistants, case managers, and office managers.
While these sessions are geared toward newer practitioners and support staff, we know that all our members will find value in the content (all of which is continuing education-eligible), including an ethics credit and a look at business strategies to grow your bottom line. Conference registration includes these sessions, but we will open registration soon for those who want to attend (or who want to send associates or staff members to attend) only these one-day tracks.
Wednesday afternoon and all day Thursday and Friday will be packed with additional diverse continuing education options, including a look at the impact of AI, the importance of the representative’s well-being, and multiple ways to elevate your skills as an advocate.
Then we hope you’ll stick around on Saturday as we are hosting an Overpayments and Work Incentives Symposium (including three sessions for continuing education credit) to discuss the overpayment crisis, which was recently the subject of a Ways and Means hearing and story on 60 Minutes.
The Symposium will start at 9 am and conclude by 3:30 pm. This Symposium is also included in the cost of the general conference registration; however, we know it can be challenging to step away for a week, so if you can’t make it to the rest of the conference, we will soon offer registration for this Saturday-only Symposium so that you can earn continuing education credits while staying on the cutting edge of best practices for overpayments.
So whether this Symposium serves as an endcap to what we know will be an amazing conference experience, or as a standalone event for you or a colleague, we hope you will join us as we look for creative solutions and member involvement to solve the ongoing overpayment crisis.
Initial and Reconsideration Case List Now Available on ARS/ERE Status Report
Jennifer Cronenberg, NOSSCR Senior Counsel, Director of Legal Information
As NOSSCR previously announced, in response to NOSSCR’s advocacy, Social Security has added a new Status Report to the ERE entitled “Get List of Initial and Reconsideration Cases.”
To access this new report, login to your Appointed Representative Services account, click “Enter ERE,” and then click “Get Status Reports.” You should see a new option: “Get List of Initial and Reconsideration Cases.” Select that button and click “submit.”
Once the report is generated, you will be able to see a list of up to 100 of your cases that are pending at the IC/RC level. To see the full list of your cases, click “Download Spreadsheet.” Once you have your list, you will be able to cross-reference the data with your client systems to determine which cases are successfully pending with your representative paperwork attached to the case.
The report only provides the claimant’s name and the last four digits of the SSN. It does not provide a status or distinguish between initial and reconsideration. However, it does allow you to confirm that you are attached to the case and that the case is pending.
If one of your cases does not appear on this list that you believe should, it is likely for one of the following reasons:
- Your 1696 has not yet been processed by the Field Office;
- If this is the case, follow the guidance found in SSA’s Tips and Best Practices for Appointed Representatives.
- Wait 30 days before inquiring about the status of a 1696. (Reminder: You will receive a notification via mail to confirm that your SSA-1696 was processed.)
- To inquire about the status of a 1696, contact your client’s servicing SSA field office or workload support unit (WSU). You can find the servicing field office’s telephone number using the Social Security Office Locator. NOTE: If the Field Office does not have a listed number, please refer to the Field Office Contact list that NOSSCR provided in the December 2023 Forum.
- If it has been over 30 days and you experience difficulty with contacting the servicing office or have not received any response, please contact the respective Regional Communications Director.
- If this is the case, follow the guidance found in SSA’s Tips and Best Practices for Appointed Representatives.
- The case is closed;
- A case may be closed if SSA never received proper application attestation,
- A case may also be closed if a decision has been made but not yet released.
If a case is missing from your report and you have confirmed with the Field Office that an electronic folder exists, your 1696 has been processed and you are listed as the Appointed Representative in eView, and the case is pending, please send the following information to the Regional Communications Director:
- Representative name and RepID
- Claimant name and the last 4 digits of the claimant’s SSN
Please follow the same escalation process if you identify a case on your status report that you do not recognize.
Cases on this list may represent cases that are at the Field Office and cases that are pending at DDS. If a new initial claim is on your case list but you cannot access the electronic folder, the Field Office may not have transferred the case to the DDS yet to create the electronic folder. If it has been more than 30 days and you received the confirmation notice that your SSA-1696 was processed, contact the Field Office to determine what information is still needed to successfully transfer the initial claim to DDS.
Please see pages 13-14 of SSA’s User Guide for more details. If you have additional questions or concerns about this report, please reach out to me at jennifer.cronenberg@nosscr.org.
Piemonte’s Perspective: VE Cross for Obsolete Jobs
George Piemonte
Many times, the VE will list jobs at Step 5 that are obsolete. No doubt you have had VEs say addresser, or tube operator, or cutter and paster, for example, not only exist but exist in the thousands. It is doubtful these jobs, and several others, exist in the current economy as described in the DOT.
The Commissioner chartered the Occupational Information Development Advisory Panel (OIDAP) (See OIDAP commissioned the Occupational and Medical-Vocational Claims Review Study in 2011.) In that more than a decade old study, on slide seven, SSA presenters indicated, “[i]t is doubtful that [addresser, tube operator, and cutter and paster], as described in the DOT, currently exist in significant number in our economy.” And while SSA has not taken administrative notice of this study, it has never publicly refuted the findings or questioned the validity of them. Courts throughout the country have found jobs identified by the OIDAP study to be obsolete. The Supreme Court in Biestek v. Berrhill, 139 S.Ct. 1148, 1154 (2019) said substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Emphasis added)
It is not unreasonable to believe the jobs listed in the OIDAP study and many others, document preparer comes to mind, are obsolete as they described in the DOT.
So, how do you deal with the VE giving obsolete jobs?
- Ask the VE when the DOT description was last updated for that job.
- Read the DOT description to them and ask where and when was the last time they saw the job performed as in the DOT.
- For example, ask them to tell you when and where they saw a person working eight hours per day, five days per week addressing “by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.”
- Get them to agree the job(s) is/are materially different in the current labor market than as set forth in the DOT.
- Get them to agree that the DOT description is obsolete.
- Get them to agree that the Occupational Outlook Handbook has more current information about jobs than the DOT. (SSA has taken administrative notice of The Occupational Outlook Handbook. See 20 C.F.R. § 404.1566(d)(5).)
- Get them to admit that the O*Net and various other government and published sources have reliable job information more current about job than the DOT. (See 20 C.F.R. § 404.1566(d).)
- Get a vocational opinion that the job(s) is/are obsolete and submit it as rebuttal evidence.
Too many people are being denied their rightful benefits based on jobs that no longer exist. Your job is to make it clear that they do not exist in the current economy as described in the DOT.
This is a guest column provided by a NOSSCR member. 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.
Tax Information for Representatives
Jennifer Cronenberg, Senior Counsel, Director of Legal Information
Understanding SSA’s tax reporting system for Social Security representatives first requires familiarity with several (very similarly labeled) numerical forms. Here’s a primer:
SSA-1694 – Request for Business Entity Taxpayer Information – this form should be completed by every firm or organization who employs appointed representatives that may be paid more than $600 by Social Security for their representation in association with a firm or organization. It allows SSA to obtain the name, employer identification number (EIN), and address of the business entity so that the representatives can then be properly associated with the firm or organization. Essentially, if you’re running a Social Security firm or organization, you should have one of these on file and up to date with SSA at all times.
SSA-1695 – obsolete since 2020, this form previously associated the individual representative with the firm – this is now accomplished via section 5 of SSA-1696.
SSA-1696 – Claimant’s Appointment of a Representative – if you are a salaried (or contract) employee of a firm or organization, proper completion of Section 5 of this form is essential. This form must be filed in every case.
SSA-1699 – Registration for Appointed Representative Services and Direct Payment – this form should be completed by all representatives who want to register for direct payment of fees. This form should be updated any time the individual representative’s information or firm association (or information) changes. If you perform contract work for multiple firms simultaneously and are paid by the firm instead of by Social Security, your 1699 should include multiple Section Vs to reflect this (Section V: Your Information When You Are Working for a Firm or Organization – “Complete this section if your work as a representative will be affiliated with a firm or organization. If you work for more than one firm or organization complete and attach as many copies of this section as needed. You will need an EIN in order to complete this section”). This form is a one-time filing unless your information or firm association changes.
IRS 1099-MISC – This is the form you should receive if you were an appointed representative that was paid more than $600 by Social Security AND were properly associated to a firm or entity as an employee at the time of those payments. These payments should appear in Box 10 and are NOT reported as income to you.
IRS 1099-NEC – If you receive this form as an individual, any monies that are reported in Box 1 are considered “nonemployee compensation” and have been reported to the IRS as income to you. If you receive this form as a firm or entity, the form should show the total direct fee payments made to employees affiliated with your firm, which is taxable income for the firm or entity.
SSA offers this handy PowerPoint that provides additional information on the tax form process for appointed representatives. POMS GN 03913.050 outlines the details for proper registration of business entities, and POMS GN 03913.010 outlines how to properly update representative registration.
How the process should work:
Each January, SSA issues a Form 1099-MISC to each representative who received aggregate fee payments of $600 or more by direct payment in the previous year. If that representative is an employee of a firm (associate or partner), the fee payments may be deemed income to the firm, provided the firm has completed and submitted a Form SSA-1694, “Request for Business Entity Taxpayer Information.” Importantly, employees should ensure that Section V: “Your Information When You Are Working for a Firm or Organization,” of the Form SSA-1699, “Registration for Appointed Representative Services and Direct Payment” reflects their current firm affiliation. Please note, if you do contract work for more than one firm where you are paid by the firm instead of Social Security, your SSA-1699 should reflect this by having an additional Section V completed for every firm for which you do work.
The Form 1099-MISC sent to the individual representative will include fees paid in his or her name in the previous calendar year reported in box 10 (Gross proceeds paid to an attorney, previously box 14). These amounts are not reported to the IRS as personal income to the individual representative.
Since 2021, if the firm is properly registered (i.e., it has submitted a Form SSA-1694), SSA will issue a Form 1099-NEC to the firm, as identified by the firm’s taxpayer identification number (i.e., Employer Identification Number (EIN)). The firm’s Form 1099-NEC includes the total direct fee payments made to employees affiliated with the firm in the previous year, but only for those cases in which the employees properly filed Form SSA-1696, “Claimant’s Appointment of Representative,” specifically Section 5. This amount is reported in box 1 of the Form 1099-NEC (Nonemployee compensation) and the IRS considers this taxable income to the firm.
Since January 1, 2015, SSA does not provide the Fee Detail Summary along with the 1099 form. Representatives and firms should maintain an accounting system to account for these fees.
Representatives who work as sole proprietors, or who work for business entities that have not registered with SSA by submitting a Form SSA-1694, will receive a Form 1099-NEC, with income reported in box 1 (Nonemployee compensation). Prior to January 2021, SSA reported these earnings in box 7 on the previous version of the IRS 1099-MISC.
Troubleshooting errors:
Erroneous reporting may occur if the representative has not properly completed Section 5 of the revised Form SSA-1696, which is now required for every case where a fee is to be withheld. The revised SSA-1696, which was originally published on February 11, 2020, collects direct payment information previously collected on the Form SSA-1695, which is now obsolete. Representatives who are eligible for and wish to receive direct payment of their fee no longer need to use a second form or provide their SSNs to give SSA the information needed for fee withholding and direct payment. Instead, the revised Form SSA-1696 requires the individual representative to include both his or her Rep ID and the firm’s EIN in order to connect the representative to the firm on each case.
Tax errors primarily occur due to a lack of firm registration (i.e., Form SSA-1694) or proper linking between the individual representative and firm affiliation (i.e., Form SSA-1699 – Section V). This is why it is very important for each firm to register with SSA via the Form SSA-1694, and for employees of the firm to indicate affiliation with the firm through the Form SSA-1699. Individual representatives and firms should also resubmit/update these forms whenever their information changes.
What about user fees?
When reviewing your Form 1099-MISC or Form 1099-NEC information, remember that the user fees are included on these forms. The IRS considers the gross amount as the amount that should be reported on the Form 1099-MISC and Form 1099-NEC. The representatives and firms should then report the gross amounts in their income tax returns (e.g., Sch C for sole proprietor; Form 1065 for partnerships, etc.) with the user fee assessments reflected as a deductible business expense (similar to commissions, fees, etc.). The regulatory authority for reporting the gross amount is in section 1.6041-1(f) of the Internal Revenue Code regulations.
Why is the representative’s SSN on the Form 1099-MISC or Form 1099-NEC?
Slide 25 of SSA’s PowerPoint explains that “[t]he Internal Revenue Service (IRS) requires that [SSA] use your Social Security number to identify you. Your Social Security number will always appear on the Form 1099-MISC. If you are a sole proprietor and have an Employer Identification Number (EIN), your Social Security number will appear in the Recipient’s Identification Number box, and your EIN will appear in the Account Number box. If you do not have an EIN, only your SSN will appear. If you work for a firm or organization, your Social Security number will appear in the Recipient’s Identification Number block, and the EIN for the firm will appear in the Account Number box.”
What can you do if your forms are wrong?
If an individual representative receives a Form 1099-NEC with amounts reported that should be income to the firm and not to the individual representative, the individual representative is considered a nominee recipient. The individual representative should file a new Form 1099-NEC and Form 1096 “Annual Summary and Transmittal of U.S. Information Returns” with the IRS. The individual representative should also provide the new Form 1099-NEC to the firm. On the new Form 1099-NEC, the individual representative should be indicated as the “payer” and the firm as the “recipient.” On the new Form 1096, the individual representative should be indicated as the “filer.”
The IRS has published the instructions above for Nominee/Middleman returns in the General Instructions for Certain Information Returns – Section A – Who Must File for the Form 1099-MISC (pg. 3). Although the IRS provides specific instructions for completing the different types of 1099 forms and Form 1096 on its website, we suggest working with an accountant.
Please note that system access issues currently prevent SSA’s Representative Call Center (RCC) from making changes to existing 1099 forms, which the Office of Public Service and Operations Support (OPSOS) has been “diligently” working to resolve.
What can you do to avoid potential reporting issues?
According to SSA’s Office of the Deputy Commissioner for Budget, Finance, Quality, and Management, one preventive measure representatives can take to avoid possible reporting mistakes is to verify their affiliations and their firms’ registration with the RCC at 1-877-626-6363. NOSSCR has been told that the RCC is able to review and confirm whether a representative is properly registered and affiliated with his/her firm and whether the representative’s firm is properly registered with SSA. The RCC’s benefit authorizers have been instructed to prioritize these inquiries and refer these actions to claims specialists, who will contact the representative to confirm the information SSA has on file for them and their firms within two business days. However, the RCC cannot make any corrections or updates to this information; if any changes are required, an updated SSA-1699 or SSA-1694 must be submitted.
If you have additional questions, SSA has instructed representatives to contact the RCC or the IRS at 1-866-455-7438. Additional information is also available online and via SSA’s PowerPoint presentation. Please also refer to POMS GN 03913.050 and POMS GN 03913.010 for added clarity.
Tax Resources for Claimants
SSA has issued the following tax reminders that may be helpful when advising your clients:
As another tax season approaches, now is the time to remind your clients to begin gathering forms and documentation from the previous year. The Benefit Statement, also known as the SSA-1099 or SSA-1042S, is a tax form we mail each year in January to people who receive Social Security benefits. It shows the total amount of benefits your clients received from us in the previous year, so they know how much Social Security income to report to the Internal Revenue Service (IRS) on their tax return.
If your clients misplace their Benefit Statement, they can instantly get a replacement form with a personal my Social Security account. Replacement tax forms for the previous tax year are generally available beginning February 1 of each year.
To further assist your clients, the IRS Tools webpage offers a wide range of resources that can greatly simplify the tax preparation process. Individuals can use the Interactive Tax Assistant tool to get answers to common tax questions and determine if their Social Security benefits are taxable. Additionally, the IRS’s Volunteer Income Tax Assistance (VITA) and Tax Counseling for the Elderly (TCE) programs provide free tax help for the elderly, the disabled, low-to-moderate income and people with limited English proficiency. To locate the nearest VITA or TCE site near you, use the VITA Locator Tool at www.irs.gov/VITA or call 800-906-9887.
Visit SSA’s Information for Tax Preparers webpage to learn more.
NOSSCR meets with Social Security Subcommittee Ranking Member Larson
On January 10, 2024, the NOSSCR PAC had the pleasure of hosting a small luncheon on Capitol Hill with Congressman John Larson (D-CT), Ranking Member of the Social Security Subcommittee in the House.
Several members of the NOSSCR staff were present and engaged in an open and productive discussion with the Congressman and his Chief of Staff regarding our membership’s priorities and concerns regarding Social Security. Congressman Larson has long been a powerful advocate for Social Security, and we appreciated the opportunity to speak with him on behalf of our membership.
Mark your calendar and register for these upcoming NOSSCR events
- January 29—Litigation Update Webinar with Tom Krause
- February 6—Legal Services CLE with Heather Freeman and Tom Krause
- February 8—NextGen Virtual Happy Hour
- February 20—Eleventh Circuit Virtual Meeting
- February 21—Fourth Circuit and Ninth Circuit Virtual Meetings
- February 22—VE Cross Series Part 2 with George Piemonte and Carolyn Kubitschek
- March 11—NextGen Virtual Coffee Break
- March 21—VE Cross Series Part 3 with George Piemonte and John Metsker
- April 17—NextGen Virtual Coffee Break
- May 8-11, 2024—Annual Conference in Nashville, TN. For more information, check out our FAQs.
David A. Weaver writes for The Hill about SSA’s Jobs Data Problem
As NOSSCR members are acutely aware, the Social Security disability determination process relies far too heavily on extremely outdated jobs data. Here, author David A. Weaver writes for The Hill, exploring what he calls a “junk data problem,” and opining that Commissioner O’Malley should use his “data guru” skills and prioritize implementation of new vocational resources for use in disability determinations.
Read the full piece below.
Social Security has a junk data problem — it should be the new commissioner’s first priority
The Senate recently confirmed Martin O’Malley as the next commissioner of Social Security. O’Malley sailed through the confirmation process, even picking up support from some Republicans. O’Malley’s public service credentials, including stints as mayor of Baltimore and governor of Maryland, were important factors in his confirmation. Senators from both sides of the aisle have grown increasingly concerned about the administrative challenges facing the Social Security Administration (SSA).
What makes O’Malley unique, however, is his appreciation of the role of data in effective governance. Indeed, he has become something of a data guru in the years since leaving elective office. That skill may be just what SSA needs to fix its troubled disability programs.
In a series of articles in the Washington Post, reporter Lisa Rein exposed weakness after weakness in the administration of SSA’s disability programs. In fact, there are so many problems in these programs, O’Malley may be tempted to solve all of them at once and, in the end, solve none of them.
His initial focus should be on replacing the junk data SSA uses to make disability decisions. Solving this problem will create a virtuous cycle, generating more support from Congress, agency staff, and the public.
SSA routinely denies individuals disability benefits by claiming that individuals can work at jobs that, in reality, do not exist. Rein documented a case where SSA said an applicant should not receive disability benefits because the applicant could work as a nut sorter, a dowel inspector, or an egg processor. The Washington Post article had to include historical pictures to help the reader even understand what these jobs used to be (the picture of nut sorters was from 1939 and showed workers sorting pecan nuts by hand).
Where does SSA get data on jobs? From a now-defunct book published years ago by the Department of Labor called the Dictionary of Occupational Titles. The vast majority of occupations in the book are from the 1970s or earlier. When confronted with the obvious problems of using this book to make life-altering decisions for real people today, the agency claimed “To date, the best available source for occupational information has been the Dictionary of Occupational Titles.”
The agency’s claim is not true, but O’Malley needs to let the agency’s defensive response sink in because it reflects a mentality that he will soon experience. SSA’s culture is about processing applications, not about promoting data quality. In fact, if the courts and political leaders allow SSA to continue to use the Dictionary of Occupational Titles in making disability determinations, SSA will gladly follow the course of least resistance and crank through millions of applications, year-in and year-out, using junk data.
The courts, in time, will take the Dictionary of Occupational Titles away from SSA because federal judges that hear disability appeals increasingly recognize that the book’s use is leading to arbitrary disability decisions. When that happens, all the current problems plaguing SSA’s disability programs will seem small in comparison. Without occupational data, SSA will not be able to process disability applications.
The administrative chaos that will ensue will devastate Americans with disabilities and shock Congress.
Why would Congress be shocked? Because Congress has given SSA everything the agency has asked for to develop new occupational data. Specifically, Congress has given SSA time and money to solve this problem. Over the last decade, SSA has used the money to fund the collection of new occupational data through the Bureau of Labor Statistics (BLS).
BLS, to its credit, succeeded in collecting the data via its Occupational Requirements Survey. SSA, to its discredit, has fumbled the implementation of the new data.
O’Malley should pay close attention to this failure. SSA, once an elite agency that gave operational life to Social Security, Medicare and other fundamental social programs, cannot, these days, even execute relatively simple tasks such as using correct data.
Congress’s generous funding of the new data collection is a festering issue — not because of the cost, per se, but rather because Congress cannot see any return on its investment. O’Malley rightly flagged declining funding for the agency as the source of poor customer service by SSA, but when he attempts to address this issue during his tenure as commissioner, he is likely to get this response from members of Congress: “Even when we give the agency money, we don’t see results.”
The surest way for O’Malley to establish trust with Congress is to successfully execute a high-profile project. Bringing in the new occupational data from BLS will solve a decades-old problem and demonstrate that SSA can be trusted with taxpayer funds.
SSA’s continued use of junk data is also degrading relationships with key partners in state government that help SSA process disability applications. In particular, O’Malley, a former governor, should study the recent congressional testimony by Jacqueline Russell, who heads an organization representing state leadership. She emphasized that the Dictionary of Occupational Titles is outdated and flawed, and that 100 percent of state disability leaders support updating occupational data.
SSA refuses to even give its state partners a timeline on when the new BLS data will be implemented.
SSA’s use of junk data is a well-known problem and the issue will surely surface during O’Malley’s initial staff briefings. SSA’s disability policy staff will offer him many reasons why more time is needed, why tasks cannot be finished, or why other avenues should be explored. O’Malley should recognize this bureaucratic inertia for what it is and help the agency recover its reputation as an elite administrative organization capable of serving the public.
David A. Weaver, Ph.D., is an economist and retired federal employee who has authored a number of studies on the Social Security program. His views do not reflect the views of any organization.
Federal Employee Satisfaction Survey Results Sees Poor Performance for SSA
The Federal Office of Personnel Management has released their 2023 Federal Employee Viewpoint Survey Results, wherein Federal employees “share their opinions and perceptions about their work experiences.” As the linked spreadsheets within the report detail, Social Security once again falls near the bottom of the list in important metrics like employee engagement, global satisfaction, and performance confidence.
NOSSCR is optimistic that the new Commissioner will work to improve employee engagement and satisfaction, thereby yielding an improved customer service experience for all of us.
January Legislative Spotlight
Betsy Osborn, NOSSCR Government Relations Director
On May 25, 2023, Representative Brad Wenstrup (R, OH-02) and Representative Earl Blumenauer (D, OR-03) introduced H.R. 3667, the Social Security Child Protection Act. In addition to its original sponsors, H.R. 3667 has three Republican cosponsors. On January 18, 2024, H.R. 3667 passed the House by voice vote. Should the Senate pass the legislation, it will be sent to the President for final approval.
This legislation would require the Social Security Administration (SSA) to provide a new Social Security Number (SSN) to children under the age of 14 when their SSN card is compromised when being mailed. NOSSCR supports this bill.
Bill Details:
SECTION 1. SHORT TITLE.
This Act may be cited as the “Social Security Child Protection Act of 2023”.
SEC. 2. REISSUANCE OF SOCIAL SECURITY ACCOUNT NUMBERS TO YOUNG CHILDREN IN CASES WHERE CONFIDENTIALITY HAS BEEN COMPROMISED.
(a) In General—Section 205(c)(2)(B) of the Social Security Act (42 U.S.C. 405(c)(2)(B)) is amended—
(1) by redesignating clause (iii) as clause (iv); and
(2) by inserting after clause (ii) the following new clause:
“(iii) In any case in which a social security account number has been issued to a child who has not attained the age of 14 pursuant to subclause (IV) or (V) of clause (i) and it is demonstrated by evidence, as determined by the Commissioner of Social Security, and submitted under penalty of perjury to the Commissioner by a parent or guardian of the child that in the course of transmission of the social security card to the child, the confidentiality of such number has been compromised by reason of loss or theft of such social security card, the Commissioner shall issue a new social security account number to such child and make note in the records maintained with respect to such child of the pertinent information received by the Commissioner regarding the loss or theft of the social security card.”
(b) Effective Date—The amendments made by subsection (a) shall take effect on the date that is 180 days after the date of the enactment of this Act.
Troubling Data on SSI Child Applicants with Sickle Cell
Bo Erickson writes for CBS News: “Thousands of Black children with sickle cell disease struggle to access disability payments.” Erickson cites SSA’s 2015 rule change for “hematological disorders” as the reason for a huge uptick in denials for children with Sickle Cell Disease, noting that roughly 76% of those who have applied between 2015 and 2020 have been denied benefits.
Read the full article below.
Thousands of Black children with sickle cell disease struggle to access disability payments
Washington — Soon after Heaven Buchanan celebrated her 10th birthday this year, she was admitted into a Chicago hospital, where she would stay for almost three weeks with severe pain in her arms and legs.
The pain is all too familiar for Heaven, who enjoys playing with Barbies, jamming to Beyonce’s latest hits and making digital art. She is one of the approximately 100,000 Americans dealing with sickle cell disease, a genetic disorder affecting the shape of the red blood cells that can lead to blood flow complications and a range of other painful issues.
“It was very concerning because her oxygen level stayed low,” Heaven’s mother, Levella Golden, said about the hospital stay, which included blood transfusions, high-dose pain medicine and supplemental oxygen. “I felt bad as a parent, just seeing her lying like that, and there [was] nothing I [could] do.”
Black Americans like Heaven represent the overwhelming majority of those living with sickle cell disease. Approximately 1 in 365 African American children are born with sickle cell, according to the Centers for Disease Control and Prevention.
When Heaven is in the hospital or has to stay home from school, her mother often has to take time off from the maintenance job that she has had for seven years. But that can make it hard to pay for food or put gas in the car for Heaven’s various doctor’s appointments, an added stress on top of her daughter’s pain.
New federal data obtained by CBS News, as well as interviews with experts, advocates, patients and policymakers, show how one safety net program meant to alleviate that stress has been out of reach for thousands of children who need it most.
“Completely mystified”
Across the country, many families with a child diagnosed with sickle cell disease told CBS News they face a financial predicament like Heaven’s mom. Watching over a child in the hospital or staying home to administer pain medication means missing out on paychecks. While Heaven’s medical care is covered by Medicaid, the family still racks up related costs, like over-the-counter medicines and therapies.
The federal government has programs meant to alleviate the financial burden that often accompanies long-term medical issues like sickle cell disease among children, including disability payments from a program run by the Social Security Administration, or SSA. The program is known as Supplemental Security Income, or SSI.
In 1990, a landmark Supreme Court case eased restrictions on when children were considered “disabled” and thus expanded eligibility for these payments, bringing the regulations for children in line with those used for adults. The change resulted in more than half of disabled child applicants being approved for assistance, a nearly threefold increase, according to the National Center for Youth Law.
Social Security disability payments are meant for low-income Americans and can be up to $914 a month, although payments are usually lower, depending on income and household factors.
Dr. Andrew Campbell, the director of the Comprehensive Sickle Cell Disease Program at Children’s National Hospital, said the money can help families “on the fringe of poverty and in the middle class meet the additional economic burdens” of dealing with sickle cell disease.
“In terms of patients and families in pediatrics, there is an unmeasured burden in the clinic from food insecurity and housing insecurity, and a lot of hospital and health care expenses,” Campbell said, including small costs that can add up quickly, like transportation and parking.
Tens of thousands of lower-income families with children suffering from sickle cell disease have applied for the benefits. But roughly 76% of those applicants, or at least 12,249 families, had their requests denied between 2015 and 2020, according to an analysis of federal data obtained through a public records request and shared with CBS News.
Medical experts and legal scholars point to a rule change implemented in 2015 that they say limited access to benefits for children with sickle cell disease. The standards used by the SSA to determine whether a child with sickle cell disease is “severely” disabled are out of line with the current standards used to treat these patients, these experts say. They are still in use today.
“I have been completely mystified by the Social Security disability process,” said Dr. Lewis Hsu, a specialist in pediatric blood disorders at the University of Illinois at Chicago and the chief medical officer for the Sickle Cell Disease Association of America. He added that the current Social Security disability standards for kids with sickle cell disease are “out of date” and “probably 15 to 20 years behind the medical standard.”
The 2015 rule change
In 2013, the SSA proposed sweeping changes to the requirements used to evaluate “hematological disorders” like sickle cell disease. The agency said the updated requirements were intended to streamline guidance for who qualifies for benefits and how their applications would be judged.
Some of the changes clarified out-of-date terminology that was still on the books since the last time the rules were updated in 1985. Others clarified how the agency treated specific disorders, and the type of documentation needed from patients to qualify for benefits. The changes, the agency wrote, were meant to keep pace with “advances in medical knowledge” and “our adjudicative experience.” They took effect two years later, with some adjustments based on feedback gathered during a public comment period.
Richard Weishaupt, a lawyer for Community Legal Services in Philadelphia who argued and won the 1990 Supreme Court case on child disability, said efforts to approve assistance for young sickle cell patients were “pretty successful” up until the 2015 rule change. But in the last several years, he said his office has seen a “shocking” number of denials.Weishaupt’s group filed a public records request with the SSA to obtain the nonpublic data that would reveal just how many children were being denied benefits between 2011 and 2020. The results confirmed the lawyers’ suspicions. From 2011 to 2015, the denial rate for child sickle cell cases averaged 62.3%. In the years following the change, the rate soared to an average of 76% over five years. An estimated 1,456 children who would have qualified under the old standards had been rejected under the new requirements.
“The data was one of the most disturbing things that I can remember, because it is so clear that the number of people being denied is much higher than it had been right before the rule [change],” Weishaupt said. “There was no hard evidence that this kind of change in policy was needed, and it shows a level of unfairness and stubbornness that cries out for amending the standards to be more realistic.”
For instance, the SSA now has a specific formula for determining eligibility that takes into account the recency and frequency of when a child was hospitalized. To qualify for benefits, the child must have been hospitalized three times in a year, with each lasting at least 48 hours and occurring at least 30 days apart. The older standards that required a single hospital stay related to the disease within the past year of the disability application.
Hsu, the pediatric specialist, told CBS News there is no medical basis for the new formula. On the contrary, doctors aim “to keep people out of the hospital and find new ways of delivering care, like intense outpatient care,” in which patients are able to “go home and sleep in their bed.”
“If I’m working to do my best as a doctor, I am trying to keep kids out of the hospitals or trying to shorten their hospital stays,” Hsu said. “And then I find out by doing that I have made them ineligible for [disability benefits] when they really have had a hard time of life and they are in and out of school.”
“I feel really bad,” he added.
The health of a patient’s red blood cells also plays a factor in who qualifies for disability. To be eligible, patients must show they’re anemic, a determination made through a test of how much oxygen-carrying hemoglobin is in their blood. But Hsu said modern medications are aimed at raising hemoglobin levels.
“Your functional status is still the same, and now you are going to get crossed off from Social Security disability, so that would be almost getting punished for having the modern medical treatment,” he said.
The 2015 changes also said opioid prescriptions could be used as a sign that someone is suffering potentially disabling pain. But these powerful pain medications carry their own risks, and Hsu said prescribing them to children is left to the discretion of each doctor and their patients.
Many of the now-pressing concerns about the revised standards were raised to the agency during the public comment period, which elicited lengthy responses in 2015. Several comments, the agency said, “expressed concern that people with hematological disorders may be disabled but their impairments do not satisfy the specific medical criteria in the listings.” Others took issue with the criteria themselves, including the hospitalization requirements.
The agency largely dismissed those concerns. The SSA repeatedly pointed to “functional criteria” that it said would allow adjudicators to “evaluate impairments that are difficult to assess in strict medical terms.” The criteria were intended as a kind of backstop for those who might be severely disabled but don’t meet all the medical requirements.
Making that determination — whether an applicant qualifies medically or, if not, functionally — is known as Step 3 in the parlance of SSI benefits. Before the 2015 rule change, 41.4% of children with sickle cell disease who made it to Step 3 had their applications approved, according to the SSA data. In the years after the change, the rate dropped to an average of 27.2%.
“You signed in the wrong box”
Levella Golden, Heaven’s mom, said she was fired from a previous fast food job for calling out too many times to take care of her daughter. Her applications for benefits have been denied five times, and she said she was surprised to see the SSA cite her income in the denials. Some of the rejections said Heaven’s medical paperwork didn’t reflect the disability standards for sickle cell disease required by SSA, Golden said.
“I’m in the lower class and it’s really hard living paycheck to paycheck,” she said, pointing to steep grocery bills that come with the healthy, organic diet sickle cell patients require. “If my family was rich, why would we try to get Social Security disability? I don’t make enough money.”
Other denials stemmed from bureaucratic missteps that left Levella infuriated. After Heaven’s extended post-birthday hospital stay, Golden said she met with an SSA administrator in Illinois and asked why they were being shut out.
“I asked the man, ‘Why are y’all denying her?’ He said, ‘You signed in the wrong box,'” she recalled. “I felt disrespected. Like, I signed in the wrong box? Are you serious? This is why you all denied her?”
Golden said she asked him where should sign instead.
“And then they still denied Heaven,” she said.
Lisa Thaniel is a social worker at Children’s National Hospital who oversees the cases of about 1,400 sickle cell disease patients. She said she wishes SSA had more case managers to help parents navigate the application process. Thaniel said parents have “encountered resistance” when contacting SSA. She said she and a patient recently called an SSA phone line and waited for three hours until someone picked up.
SSA does not release denial rates for disability claims by disease, so it is unclear how sickle cell cases compare to other medical issues. However, SSA does automatically approve disability payments for some childhood cancers and other rare disorders.
“A path forward”
Lawmakers have been advocating for government support for sickle cell patients and are concerned about the disability application process. Rep. Barbara Lee, a California Democrat who leads the Congressional Sickle Cell Caucus, is calling for action.
“With all of these children that are not able to access these payments, it is just, in many ways, borderline immoral and unethical because it goes counter to what the science and the medical profession has recommended,” Lee told CBS News. “It is just outrageous, as I know who these kids are and they are disproportionately Black. It’s just wrong and I think [SSA] needs to be held accountable, and I think we need to find a path forward on how to fix it.”
Charting that path may now fall to former Maryland Gov. Martin O’Malley, who was confirmed by the Senate to lead the SSA just last week. He is the agency’s first permanent leader in two and a half years. The SSA has struggled to retain workers, and consistently ranks as the one of the worst federal workplaces in employee surveys.
Congress could act to adjust how the SSA considers applications, but observers like Weishaupt, the attorney for Community Legal Services, say any change or fix will likely come from the agency itself. Weishaupt has pushed the SSA to review the standards for sickle cell disease more frequently, like it does for other types of disorders.
The standards were initially approved for a five-year window in 2015, and the SSA vowed to “continue to monitor these rules to ensure that they continue to meet program purposes.” They have since been extended until 2026.
Asked by CBS News if SSA has reviewed these requirements recently, spokesperson Darren Lutz said, “We research and update our listings for hematological disorders, including [sickle cell disease], for impacts, outcomes, and advancements in treatment.” He added that the SSA collaborates on these rules with medical experts and the Department of Health and Human Services.
Lutz also said SSA takes lawmakers’ concerns “seriously” and will work to address issues. For his part, O’Malley at his Senate hearing pledged he is committed to addressing SSA barriers for children with disabilities.
Earlier this month, the Food and Drug Administration approved a landmark gene-editing treatment for sickle cell disease, which could be used to repair the gene responsible for the disease.
Back in Chicago, Levella said she will continue to apply for disability to help Heaven and their family’s finances. But she’s bracing for another SSA denial, even as Heaven spent more days in the hospital during Thanksgiving week.
“I’m happy to work. I’m going to continue to work. But at the end of the day we still need help, and it’s basically like a slap in the face for [SSA] to say, ‘You can keep applying, but guess what? We are just going to keep denying you,'” Levella said.
“It hurts, it melts my heart and it almost made me go into depression. But at the end of the day I have to stay strong for my baby,” she added.
What’s Happening in the 7th Circuit
Ryan Tank, Spector & Lenz, P.C.
December 2023 Edition
After a brief hiatus, the Seventh Circuit resumed issuing Social Security decisions shortly before Thanksgiving. In November and December, the Court decided eight Social Security cases. All eight affirmed the Commissioner, including Ellison in which two recent appointees were panelists.
The good news is that we continue to see remand opinions from district courts in the Seventh Circuit. But as the Court of Appeals becomes increasingly deferential to ALJs, it limits the ability to rely on the claimant-friendly Seventh Circuit law of years past at the district court level.
The Seventh Circuit in Bertaud remarked in a footnote that “[i]f an issue has few published opinions, we encourage litigants to invite us to issue one.” But the trajectory of affirmations warrants a very cautious approach, lest we invite more precedent that limits the ability of district courts to continue remanding claims.
Sherman v. O’Malley (affirmed, unpublished)
Judges Scudder, St. Eve, and Pryor
Dec. 22, 2023
Sherman, an army veteran with a history of bladder cancer and tumor removal, argued that an ALJ improperly denied his disability claim by ignoring the effects of his urinary frequency and fatigue. Although the ALJ “did not discuss certain reports documenting Sherman’s need to urinate frequently, she acknowledged other evidence of the condition.” The unaddressed evidence “was of the same nature as the evidence she mentioned.” And Sherman did not introduce evidence that hourly bathroom breaks would exceed the off-task limit cited by one vocational expert.
As for fatigue, the ALJ erred by failing to acknowledge any evidence of this problem. But the Court found the error harmless because “the evidence is conflicting about whether Sherman experiences fatigue at all” and the Court could not find a medical report supporting Sherman’s claim that he needs to nap.
Bertaud v. O’Malley (affirmed, published)
Judges Easterbrook, Hamilton, and Brennan
Dec. 21, 2023
After being struck in the head with a 100-pound tree branch, Bertaud sought and was denied DIB and SSI. He exhausted his remedies before the agency and asked a district court to remand his claims based on 800 pages of new medical evidence which, he argued, showed the ALJ did not properly develop his record. But Bertaud was represented at the hearing. The Court noted that a claimant’s duty to develop the record is principal, while an ALJ’s duty is supplemental and “tethered to a claimant’s legal representation” even if it does not recede completely. In any case, “the reviewing court defers to the ALJ on the question of how much evidence must be gathered.” And the Court found the ALJ had no duty to inquire further about a gap in Bertaud’s medical history where his attorney confirmed the completeness of the record to the best of their knowledge.
Ellison v. Kijakazi (affirmed, unpublished)
Judges Kirsch, Jackson-Akiwumi, and Pryor
Dec. 20, 2023
Ellison sought disability benefits due to a variety of physical and mental health diagnoses, and an ALJ denied her claim at Step Five. The Court reviewed the ALJ’s handling of depression, anxiety, carpal tunnel syndrome, obesity, and fibromyalgia, and the combined effects of Ellison’s impairments, and concluded that the ALJ “examined and discussed Ellison’s record in the appropriate level of detail.” The Court also permitted the ALJ to discount a conclusory treating doctor’s opinion under the new opinion evaluation regulations and to rely on a radiologist’s opinion that new imaging showed no significant interval changes.
Martin v. Kijakazi (affirmed, published)
Judges Hamilton, Brennan, and Jackson-Akiwumi
Dec. 19, 2023
Martin, who hurt his back at work in 2016 and was last insured for DIB in 2017, was found disabled as of 2018 but not earlier. He was awarded SSI benefits but not DIB, and appealed. Martin argued that the ALJ should have engaged a medical expert and credited Martin’s testimony about past symptoms. The Court deferred to SSR 18-1p, which gives ALJs discretion to consult a medical expert to determine onset, and found no error in that respect or in not adopting Martin’s testimony about his limitations before seeking treatment.
Tutwiler v. Kijakazi (affirmed, published)
Judges Easterbrook, Hamilton, and Pryor
Dec. 7, 2023
Tutwiler was eventually fired after being diagnosed with endometrial cancer at age 41. She had significant gastrointestinal problems because of radiation treatment and applied for DIB and SSI. An ALJ issued a Step 5 denial, and Tutwiler sought review alleging an incomplete RFC that did not account for her gastrointestinal symptoms, weight loss, limited drug use, and mental limitations. The Court found that all but the gastrointestinal arguments were forfeited because they were not specifically raised in the district court.
As for Tutwiler’s argument about her gastrointestinal symptoms, the Court identified one medical record stating her diarrhea improved with medication and two others stating she was not experiencing gastrointestinal symptoms. The Court upheld the ALJ because “[h]e weighed the competing evidence, assessed testimony from Tutwiler and the vocational expert, and considered the opinions . . . .” Per the Court, the ALJ carefully considered the record because he added more limitations than the State agency consultants found, and Tutwiler did not submit a more restrictive opinion. And the ALJ based his credibility determination on several factors in addition to the medical records, with the Court assessing that “enough of [the factors] withstand scrutiny.”
Babiash v. Kijakazi (affirmed, unpublished)
Judges Scudder, St. Eve, and Pryor
Dec. 5, 2023
Babiash, who was working as a caregiver, obtained a partially favorable decision from an ALJ in 2015 which stated that if his work reaches SGA, his benefits may be stopped or adjusted and he may be subject to an overpayment. After significant earnings came to the agency’s attention, the Appeals Council returned the case to the ALJ. The ALJ then issued an unfavorable decision finding he engaged in SGA, and Babiash was ordered to repay about $88,000 in benefits.
Babiash sought waiver of the overpayment, and waiver proceedings remained pending before the agency while he appealed the ALJ’s unfavorable SGA decision. Because Babiash, pro se, did not argue that the record lacks substantial evidence for the ALJ’s finding of SGA, the Court found the issue forfeited. And the Court held that Babiash must exhaust his waiver contentions before the Commissioner before judicial review.
Pattee v. Kijakazi (affirmed, unpublished)
Judges Brennan, Scudder, and St. Eve
Nov. 30, 2023
Pattee argued that an ALJ denying his DIB claim erred at Step 3 and in assessing his RFC. Pattee said the ALJ improperly played doctor in interpreting his tilt-table test which Pattee believed reflected postural orthostatic tachycardia syndrome (POTS). But Pattee’s cardiologist and family nurse practitioner analyzed the test and did not conclude that Pattee had POTS, and the ALJ added postural limitations to the RFC, all of which the Court found sufficient without submitting the test results to medical expert scrutiny. Per the Court: “It is no more appropriate for a claimant to ‘play doctor’ than it is for an ALJ.”
Pattee also argued that the ALJ should have considered whether he medically equaled a listing and improperly rejected subjective symptoms. The Court found further listing analysis was not needed due to a lack of recurrent episodes and due to improvement with medication, and the Court said Pattee “repeatedly reported symptoms or conditions that were not backed up by examinations and tests, which produced largely normal results.”
Fitschen v. Kijakazi (affirmed, published)
Judges Sykes, Flaum, and Kanne (*argued in Feb. 2022 before Judge Kanne died)
Nov. 14, 2023
After approval of his 2000 DIB claim, Fitschen returned to work and exhausted his trial work period. The job ended during his extended period of eligibility, but Fitschen later returned to work again at SGA levels. SSA continued paying him for nearly four years before discovering the work activity and assessing an overpayment.
Fitschen sought waiver of the overpayment, arguing that SSA’s reopening rules prohibited assessing an overpayment and that he was not at fault. The Court held that the reopening rules do not apply to Fitschen’s overpayment proceedings because SSA did not possess the information about his earnings during earlier determinations and reviews. As for fault, Fitschen argued that receipt of 1099s from SSA caused him to cash DIB checks that he previously did not cash on account of his work activity, reasoning that he “did not think it was fair to get taxed on money [he] was not to use.” But the Court noted that Fitschen admitted fault in writing to the agency and that substantial evidence supports SSA’s finding of fault.
Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL
This is a guest column provided by a NOSSCR member. 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.
SSA Actuarial Note
Social Security’s Office of the Chief Actuary provides a look at the “illustrative benefits for retired workers, disabled workers, and survivors scheduled under current law” here.
Statistical and Actuarial Analysis from Social Security
SSA’s Office of Retirement and Disability Policy has released the following information:
A monthly snapshot of statistics on Social Security beneficiaries and Supplemental Security Income recipients: Monthly Statistical Snapshot, December 2023.
Monthly tables that provide statistics for federally administered payments and awards under the Supplemental Security Income (SSI) program: SSI Monthly Statistics, December 2023.
SSA’s Office of the Chief Actuary routinely provides memoranda providing the estimated actuarial effect on the financial status of the OASDI program from a legislative proposal. Their most recent memo analyzes the estimate of the financial effects on the Social Security Trust Funds of the “You Earned It, You Keep It Act,” introduced on January 25, 2024 by Representative Angie Craig.