More fields now available on IC/RC spreadsheet!

David Camp, NOSSCR CEO

In January, we announced that IC/RC case lists were available on ARS/ERE status reports. Through surveying our members, we estimated access to this information resulted in 42,000 fewer faxes and letters and 43,000 fewer calls to SSA each month.

To build on this progress, NOSSCR has worked closely with Social Security’s modernization team to identify additional information that, if provided through ERE/ARS, would allow representatives to have more insight into the case status and continue to reduce the burden on Social Security to provide this information by phone. In our Nashville conference, NOSSCR members met with SSA’s teams for several hours of listening sessions that produced significant upgrades to this new release. 

For the past few weeks, NOSSCR staff and board members have worked with Social Security to conduct beta testing of the new fields. We are pleased to announce that testing is now complete and the new fields are now live!

This isn’t a perfect or complete list of all data–far from it. But, it is a quick step that gets our work a significant step further toward efficient digital engagement at the early stages of a disability claim.

We are pleased to announce that the following statuses are now available to you through your downloadable IC/RC case list:

• Case level (reconsideration or initial)
• Receipt date (date received at DDS)
• First date assigned (to an adjuster)
• Closure date
• Federal Quality Review (FQR) start date
• First name
• Last name
• Middle name
• Last 4 SSN
• Claim type(s) (includes office with jurisdiction and most recent claim status)
• Claimant information requests (includes address where DDS contacted claimant) 
• Medical evidence requests (includes medical facility address) 
• CE appointments (includes appointment date, appointment time, whether confirmed or not, address)

While the absence of data on the list could still warrant a call to SSA, we believe access to this data will significantly diminish your need to call SSA to confirm case status. To encourage SSA to continue delivering these valuable data access points, please be sure to check your ERE/ARS for answers before calling/faxing SSA. The more we can illustrate mutual time-savings from these improvements, the more likely we are to see continued progress. 

To access this new feature, log in to your Appointed Representative Services account, click “Enter ERE,” and then click “Get Status Reports.” You should see “Get List of Initial and Reconsideration Cases.” Select that button and click “submit.” Once the report is generated, you will still only see the basic information (name, last 4 of SSN) for your first 100 cases. In order to see the newly added fields (and the full list of your cases), you must click on the “Download Spreadsheet” button. Once downloaded, you will be able to access an Excel spreadsheet with the complete list of your cases at IC/RC plus the new fields for each case. 

A few notes about the report:

• Within the report, the DDS office with custody of the case is identified via “site code.” NOSSCR has added a list of these site codes and the corresponding office / phone number to our website here. 
• If you enter your appearance on a case after the case has been denied, the case will not populate on this IC/RC list (or your OHO report) until the appeal has been processed and also received at the DDS (or OHO).
• Cases that are closed will continue to appear on this list for 65 days after they close.
  • The last visible claim status will be DDS’ final status and will not reflect the work that the field office is doing on the claim post-closure. For post-closure questions, contact the local field office. 
  • If you file an appeal and the appeal reaches DDS within 65 days of initial claim closure, a duplicative claim will appear on this list — one for the closed initial claim, and one for the pending reconsideration claim. The closed initial claim will drop off of the list 65 days after initial claim closure. 
• The address in the “claimant information request” field is the address that DDS used to contact the claimant. So if this does not match the claimant’s most up-to-date address, that would flag the need for a change of address update. 
• We are aware that representatives with caseloads over 500 are experiencing technical difficulties with the list. We have been in close communication with SSA about these problems and they are actively working on a fix — we appreciate your patience and will update you as soon as we know more.

Any questions about the data contained within this report should be directed to the field office or DDS in charge of the case. Should the issue require further escalation, please contact the relevant Regional Communications Director. Technical issues with the report can be directed to the ARS troubleshooting team at OHO.HQ.ARS@ssa.gov. Please also bring any persistent issues or errors to NOSSCR’s attention. 

NOSSCR is excited that Commissioner O’Malley continues to be responsive to our concerns and is acting quickly to enact change. We will continue to encourage SSA to update inefficient systems so our members face fewer technological roadblocks and can instead focus on their essential claimant representation duties.

President’s Corner

Rick Fleming, NOSSCR President

Summer of Learning:

NOSSCR is pleased to be your go-to source for up-to-date information and education. We have a jam-packed summer of events scheduled to keep you informed and ensure your skills are razor-sharp. We look forward to seeing you at these virtual and in-person events! 

July kicks off with an exciting topic from Diane Haar: “Leveraging Technology and Artificial Intelligence to Increase Your Efficiency and Bottom Line,” presented virtually on July 8th at 4 pm Eastern. This session will focus on hot technology topics for small firms and solo Social Security practitioners, particularly how to leverage technology to get more help for less money.  Registration is open. 

We are also proud to present the next installment in our vocational series. On July 19th at 3 pm Eastern, Matt Richter and Eric Farr will discuss “The Importance of Developing Regional Job Numbers.” Register now!

August continues your summer of learning with many interesting sessions, such as “Mandamus Primer: Tackling Fee Delays,” “Case Study-Untangling Complex Employment Income Issues,” and “Overpayments Training,” among others. Make sure you keep an eye on the NOSSCR events calendar so you don’t miss out!

Is there a topic you feel needs to be covered? Interested in speaking at a NOSSCR event? Our call for presenters for our virtual conference is now open! Submit your proposal here. You can always reach out to us at nosscr@nosscr.org with questions or suggestions.

NOSSCR Elections:

Don’t forget to vote this summer!

Our bylaws provide for the election of Board members according to federal judicial circuits. If the NOSSCR membership in a circuit exceeds 200 members, that circuit is entitled to a second Board member. Based on our membership as of our June 1 census, our upcoming Board will have two seats from the 4th, 6th, 7th, 9th, and 11th circuits and one seat from the others. Board members serve two-year terms, starting with the fall meeting.

The Nominations and Elections Committee’s list of approved nominees will be emailed later in July to NOSSCR members eligible to vote. In August, ballots will be emailed, providing access to Candidate Statements. We expect to use our longstanding secure online provider, Simply Voting, so please be aware that ballots may originate from NOSSCR@simplyvoting.com. You will have access to the ballots and voting through a link provided to you in your email.

The results will be announced in an online membership meeting on August 30th, and newly elected circuit representatives will join the board on the date of the September board meeting.

Piemonte’s Perspective

George Piemonte, NOSSCR 11th Circuit Board Representative

Today, I will discuss another of my favorite limitations and suggest ways to prove it. This time, we will discuss the limited ability to tolerate stress.

Representatives often overlook this potentially winning limitation during the hearing. SSR 85-15 states, “The reaction to the demands of work (stress) is highly individualized, and mental illness is characterized by adverse responses to seemingly trivial circumstances.” SSR 85-15 gives some great examples of things that appear to be trivial but can be highly stressful to some people with mental limitations. For example, just trying to get to work regularly or on time can be highly stressful for some people. Other examples are just having their work supervised, which can be stressful for some, or remaining in the workplace for the entire workday. The possibilities are endless; it all depends on what causes stress for your client. That means you must explore what causes stress for your client well before the hearing to give time to get the necessary proof and develop your direct examination of your client.

So, what you must prove is:

• What can cause your client too much stress
• What your client does in response to stress that precludes work

Medical opinions or statements can prove what is stressful to your client and what your client does in reaction to that stress. That is why it is critical that you, early on in your representation, explain to your client how essential it is to report everything that is going on with them to their doctor(s).  While yes, you will need and want to have your client testify about what is stressful for them and how they react to it, confirm those in the medical evidence. To emphasize that point and help them remember to report everything to their doctors, I have always told my clients to live by the adage: if it is not in the medical records, it is not true.

Additionally, lay evidence can be gold in proving that it actually happens in real life and how people react to that stress.

When representing your client, you need to determine the theory of your case early on. This includes determining what is stressful for your client and how they react to it so you can figure out how to prove it.

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

Call for Virtual Conference speakers!

We are accepting speaker proposals for our upcoming Virtual Conference on December 10th and 11th!

This is your chance to share your expertise with a targeted audience of Social Security professionals. The best part? No travel is required–and your cat is welcome to join, too!

Initial submissions (including outlines and a basic synopsis) are due by August 1, 2024!

Speakers who are selected will receive a discounted admission to the conference.

Past Relevant Work now = 5 years

On June 22, 2024, the much anticipated change of the definition of Past Relevant Work (PRW) from 15 years to 5 years took effect. Because of this change, SSA has issued many rule and policy changes. We have gathered the most relevant changes for you here and will continue to provide analysis on the impact of these changes as the landscape begins to take shape.

The change has been codified and SSA has issued companion SSRs as follows:

• 20 C.F.R. § 404.1560 – When we will consider your vocational background
• SSR 24-1p – Titles II and XVI: How We Apply the Medical-Vocational Profiles
• SSR 24-2p – Titles II and XVI: How We Evaluate Past Relevant Work

SSA has also updated the relevant POMs to reflect the change from 15 to 5 years:

• DI 28030 TN 47 – General Development of CDR Cases
• DI 11005 TN 110 – Disability Interviews
• DI 11005 TN 109 – Disability Interviews
• DI 11005 TN 111 – Disability Interviews
• DI 11005 TN 112 – Disability Interviews
• DI 25015 TN 29 – Ability to Perform Other Work
• DI 22515 TN 12 – Vocational Evidence
• DI 25003 TN 11 – Vocational Specialists
• DI 22515 TN 11 – Vocational Evidence
• DI 25001 TN 18 – Medical-Vocational Quick Reference Guide
• DI 25005 TN 17 – Capacity to Do Past Relevant Work
• DI 25010 TN 1 – Medical-Vocational Profiles Showing an Inability to Adjust to Other Work
• DI 25015 TN 28 – Ability to Perform Other Work
• DI 25501 TN 54 – Onset

The claimant work history report form has been updated:

• SSA-3369-BK – Work History Report

Finally, SSA has issued an EM regarding the impact of the rule change and Res Judicata:

• EM-24028 – Intermediate Improvement to the Disability Adjudication Process: Including How We Consider Past Work Regulation and Res Judicata Policy Application
  • As we noted previously, this EM will impact cases where you received a final determination prior to June 22, 2024, and the application of the new definition of PRW would have resulted in a favorable determination. In these cases, you may want consider filing a new application instead of pursuing additional appeals (or abandoning the case).
  • In the new filing, if appropriate, you could pursue an alleged onset date that predates the prior denial without the restriction of res judicata. This will be of particular importance to folks who may have received a Title II final denial after the expiration of their DLI, who may now have a renewed possibility of a claim for eligibility pre-DLI.
  • Of important note, we do not yet have instructions for how the Appeals Council will handle claims on their docket where application of the new PRW rules would have resulted in a different decision. We await those instructions and will update you as soon as anything changes. 

Two new emergency messages address reliance on some isolated and obsolete jobs

Tom Krause, NOSSCR Litigation Director

Several recent articles[1] in The NOSSCR Forum have addressed SSA’s reliance on isolated and obsolete jobs. Given the ongoing importance of this issue to our members and your claimants, we were pleased to see SSA release the following Emergency Messages (EMs) on Saturday, June 22, 2024, relating to isolated and obsolete jobs:

• EM-24026: Isolated Occupations We Will Not Use to Support a “Not Disabled” Finding at Step Five of the Sequential Evaluation Process

• EM 24027: Guidance Regarding the Citation of Certain Occupations at Step Five of the Sequential Evaluation Process

The two EMs share several characteristics. Both messages emphasize the need for substantial and reliable evidence to support a “not disabled” determination when using the medical-vocational guidelines (20 CFR Part 404, Subpart P, Appendix 2) as a framework. Both EMs discuss the use of the Dictionary of Occupational Titles (DOT) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO) as standard sources of occupational information. Finally, both messages acknowledge court decisions questioning the validity of certain occupational data.

NOSSCR encourages members to review their cases, especially cases at the Appeals Council and in federal court, to ensure SSA is not relying on these jobs inappropriately.

EM-24026 lists 114 Dictionary of Occupational Titles (DOT) occupations classified as “isolated.”[2] Many of the jobs listed are highly skilled and SSA seldom relies on most of them. These occupations exist only in limited numbers and in a few locations outside the individual’s region, per 20 CFR 404.1566(b) and 416.966(b). EM-24026 instructs adjudicators not to cite these jobs when determining disability. However, this EM does not apply to an individual’s ability to perform past relevant work.

SSA developed this EM using 2020-2022 federal employment data from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) program. By analyzing employment data from the nine U.S. Census Divisions, 35 SOC occupations with fewer than 1,000 employees per division were identified, leading to the identification of 114 corresponding DOT occupations as isolated.

EM-24027 notes that multiple courts have questioned SSA’s reliance on 13 specific Dictionary of Occupational Titles (DOT) occupations. These jobs include, for example, some of the “usual suspects,” such as Addresser; Document Preparer, Microfilming; Cutter-and-Paster, Press Clippings; Tube Operator;

Surveillance-System Monitor; and Host/Hostess, Dance Hall. SSA added several jobs to the list, such as Silver Wrapper; Host/Hostess, Head; Almond Blancher, Hand; Nut Sorter; Magnetic-Tape Winder; Puller-Through (for making gloves); and Microfilm Processor.

According to Social Security Ruling (SSR) 00-4p, when there is an apparent conflict between vocational expert (VE) or vocational specialist (VS) evidence and the DOT, adjudicators must obtain a reasonable explanation for the conflict and detail its resolution in their determination or decision. Conflicts may arise, for example, from outdated descriptions in the DOT compared to modern job practices. To allay the concerns of courts and others, SSA prohibits adjudicators from citing these 13 DOT jobs to support a “not disabled” determination without additional evidence from a VS or VE. The additional evidence must demonstrate that the job:

• Matches the individual’s RFC requirements, and
• Exists in the national economy in significant numbers, either alone or in combination with other cited occupations.

The determination or decision must include or summarize the supporting evidence from the VS or VE before relying on these jobs.

There are several more subtle aspects to these EMs. We believe these EMs are the first agency recognition of the Occupational Requirements Survey (ORS) as providing up-to-date and reliable vocational information. As a result, the EMs undercut ALJ decisions rejecting ORS and strengthen claims on appeals that rely on the ORS. In addition, SSA appears to concede that 1,000 jobs in a multi-state region is a cutoff for a significant number of jobs.[3] While SSA does not require VEs to testify to the number of jobs in the claimant’s region or several regions of the country, SSA looked at regional numbers in determining these jobs are isolated.

While the two EMs are a step forward, there are limits to their usefulness. The 114 jobs listed in EM-24026 are not commonly cited (e.g., Director, State-Historical Society; Oral and Maxillofacial Surgeon; and Dramatic Arts Historian). Most of the jobs in EM-24027, such as Addresser (addressing envelopes by hand or using a typewriter) and Tube Operator (using a pneumatic tube system) are barely recognizable today.

The EMs also fail to address other jobs that are isolated or obsolete (or both). For example, vocational experts and state agencies continue to cite these jobs:

• Page, DOT No. 353.367-022
  • Conducts visitors on tours of radio and television station facilities and explains duties of staff, operation of equipment, and methods of broadcasting.

• Clocker (amusement & recreation), DOT No. 153.367-010
  • Clocks (times) racehorses at racetrack during morning workouts to obtain speed information: Identifies each horse on track by its particular identifying marks and color, and records name.

• Pan Greaser, Machine (bakery products), DOT No. 526.685-034
  • Tends machine that automatically coats inside surfaces of baking pans with grease.

• Core Extruder (electrical equipment), DOT No. 557.685-010
  • Tends manually operated extrusion press and wirecutter that extrudes and cuts paste (black mix) to form dry-cell battery cores.

• Conveyor Loader II (meat processing), DOT No. 525.686.014
  • Guides dehaired hogs from stationary rail to moving chain conveyor.

NOSSCR appreciates these two steps forward. The two new EMs, however, do not address all the isolated and obsolete jobs in the DOT. And, most importantly, the new EMs do not address the fundamental need for a new vocational platform based on the up-to-date and reliable information in the ORS. We look forward to the day SSA moves into the 21st century and relies on the ORS for vocational determinations and decisions.

---

[1] S. Persaud, “Are 30,000 people still using this flash cube? Thankfully the Eastern District of New York says ‘NO,’” NOSSCR Forum (Apr. 2024); T. Krause, “Vocational Determinations and the State Agency: The DOT is Not Just a Problem at the Hearing Level,” NOSSCR Forum (Apr. 2024); T. Krause, “Update on Obsolete Jobs (Again),” NOSSCR Forum (Feb. 2024).

[2] At the end of this article is a chart listing all 126 occupations identified in these two EMs. You can download, search, sort, and filter the chart. The chart also identifies the EM and the effect of the EM (i.e., the adjudicator cannot cite the occupation or additional vocational information is required).

[3] For more information about the importance of developing regional job numbers, be sure to attend our upcoming CLE on this very subject—July 19^th at 3pm—register now!

View a PDF of the jobs below:

Upcoming NOSSCR events

Register today for these exciting upcoming events:

• Fifth Circuit (FOSSCR) Conference in San Antonio, TX at the lovely Hotel Valencia Riverwalk
  • The conference starts at 8:00 a.m. on Friday, September 20th, and continues through lunchtime on Saturday, September 21st.
  • Check out the tentative agenda and register today!

• NextGen Retreat in Portland, Oregon at the eclectic Kimpton Hotel Vintage Portland
  • Kick things off with a happy hour on Thursday, October 10th, and learn, network, and explore Portland with us on October 11-12th.
  • Check out the tentative agenda and register today!

• Southeast Regional Conference in Raleigh, NC at Dock 1053
  • Relax and learn with local colleagues Thursday October 24th and Friday October 25th.
  • Tentative agenda coming soon, but registration is open now!

• Eighth Circuit Conference in Fayetteville, AR at The Graduate Hotel
  • Join us Thursday morning, November 7th at 9:00 a.m. through Friday evening, November 8th as we network and learn.
  • Check out the tentative agenda and register today!

• Virtual Conference
  • Enjoy the comfort of your home or office while learning from our engaging live virtual presenters on December 10th and 11th.
  • Register now!

Interested in sponsoring or exhibiting at one of these events? Visit our sponsors and exhibitors page or reach out to nosscr@nosscr.org.

Just ask Jennifer: Change of business address

Jennifer Cronenberg, NOSSCR Senior Counsel and Director of Legal Information

Whether you’re moving across the street or across the country, properly establishing your business’ change of address with Social Security is crucial so that you don’t miss important notices or payments. Following these tips should ensure a smooth transition (at least as far as SSA goes…whether your moving truck shows up on time is another story):

When an entity changes its business mailing address, the entity should submit an updated SSA-1694 to the Office of Central Operations at fax # 1-877-268-3827. All affiliated representative should also submit updated SSA-1699 forms the Office of Central Operations at fax # 1-877-268-3827. 

The representatives do not need to submit updated SSA-1696 forms for each pending case. Once the SSA-1694 and SSA-1699 are processed, the agency’s central representative database will automatically update existing appointments for each case, and as applicable, staff in the Offices of Hearings Operations and Appellate Operations will also update the relevant case processing system(s), based on the update triggered by the SSA-1699.

So to recap:

• The business or entity should submit an updated SSA-1694 to the Office of Central Operations at fax # 1-877-268-3827
• All affiliated representatives must also submit updated SSA-1699 forms to the Office of Central Operations at fax # 1-877-268-3827
• There is no need to update all previously-submitted SSA-1696 forms
• Hire a reputable moving company

Are there questions that you’d like to see answered in this space? If so, “Just ask Jennifer” at jennifer.cronenberg@nosscr.org.

Legislative Spotlight

Betsy Osborn, NOSSCR Government Relations Director

On May 7, 2024, Congresswoman Yadira Caraveo (D-CO) introduced H.R. 8265, the Social Security Overpayment Fairness Act. This bill has 2 cosponsors, one Republican and one Democrat. H.R. 8265 was referred to the House Committee on Ways and Means where it is awaiting further action. A companion bill has not yet been introduced in the Senate.

This legislation is intended to improve the process for tracking and reviewing income information for beneficiaries in order to reduce overpayments and make the recovery process more just. Among other things, this bill would extend the period before collection of overpayments begins from 30 days to 120 days. NOSSCR has endorsed H.R. 8265.

Bill Details:

SECTION 1. SHORT TITLE.

This Act may be cited as the “Social Security Overpayment Fairness Act”.

SEC. 2. NOTICE REQUIREMENT.

(a) Title II Amendment.—Subparagraph (A) of section 204(a)(1) of the Social Security Act (42 U.S.C. 404) is amended—

(1) by striking “With respect” and inserting “(i) With respect”; and

(2) by adding at the end the following:

“(ii) In the case of a payment to a person of more than the correct amount, the Commissioner shall commence proper adjustment or recovery not earlier than 120 days after providing notice to the individual of the payment of more than the correct amount.”.

(b) Title XVI Amendment.—Section 1631(b)(1) of such Act (42 U.S.C. 1383(b)(1)) is amended by adding at the end the following:

“(C) In the case of a payment of more than the correct amount of benefits, the Commissioner shall commence proper adjustment or recovery not earlier than 120 days after providing notice to the individual of the payment of more than the correct amount.”.

(c) Effective Date.—The amendments made by this Act shall take effect on the date of enactment of this Act, and shall be effective with respect to overpayments under titles II and XVI of the Social Security Act that are outstanding on or after such date.

SEC. 3. REPORT ON STRATEGIES FOR OVERPAYMENT RECOVERY.

Not later than 180 days after the date of enactment of this Act, the Commissioner of Social Security shall submit to Congress a strategy relating to the recovery of overpayments of old-age, survivors, and disability insurance benefits under title II of the Social Security Act and supplemental security income benefits under title XVI of such Act. The strategy shall seek to achieve the objectives that follow:

(1) Improving the process of reviewing changes in information reported by beneficiaries;

(2) Expanding efforts to limit discrepancies in accuracy resulting from beneficiaries self-reporting information;

(3) Improving efforts to prevent and track overpayments to beneficiaries.

(4) Ensuring due process is followed in recovering overpayments.

(5) Improving and increasing written and oral communication between the Social Security Administration and beneficiaries in relation to the recovery of overpayments.

(6) Propose fair and reasonable benefit withholding amounts designed to avoid undue financial strain on beneficiaries.

Bypassing the Appeals Council?

Tom Krause, NOSSCR Litigation Director

In May 2024, Senior District Judge Edward F. Shea, issued a decision in Jeremy H. v. O’Malley, No. 2:23-CV-00298-EFS, 2024 WL 1143496 (E.D. Wash. Mar. 14, 2024). This is an unusual case where the Plaintiff effectively bypassed filing an appeal with the Appeals Council by relying on the Appeal Council’s “own motion” or “focused” review.

On July 24, 2023, eleven days after the ALJ’s decision was issued, Plaintiff’s counsel learned via ARS/ERE that the Appeals Council had assigned Plaintiff’s case to an adjudicator for review. On August 15, 2023, Plaintiff’s counsel learned via ARS/ERE that the Appeals Council was closing its review of the ALJ decision and that the disposition was “other.” On October 17, 2023, sixty-three days after the Appeals Council closure, Plaintiff filed his Complaint. The Court found Plaintiff had exhausted his administrative remedies and timely filed for review. Alternatively, the Court found equitable tolling for late filing of review.

SSA moved to dismiss the Complaint, arguing that, because the Appeals Council’s review of Plaintiff’s case was an informal rather than formal action, it did not constitute an appealable final decision. The Court found the Commissioner’s position was contrary to the Supreme Court decision in Smith v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1765, 204 L.Ed.2d 62 (2019) (the Appeals Council’s dismissal of an SSI claimant’s untimely request for review of an ALJ’s merits decision is a “final decision . . . made after a hearing” and so is subject to judicial review). The crucial question in Jeremy H. was whether the ARS/ERE docket entries downloaded by the claimant’s attorney were sufficient to prove that an action was taken by the Appeals Council which qualified as a final determination. The Court believed that it did.

Alternatively, the Plaintiff argued he timely filed his appeal based on equitable tolling. The Court found the Plaintiff met both prongs of the two-pronged test for equitable tolling. Counsel diligently represented the claimant and frequently reviewed the claim’s online status. According to the Court, a reasonable attorney, diligently pursuing his client’s rights, would not file a request for review when he reasonably believed that a review was already pending. Moreover, the best practices manual provided to representatives cautioned against the filing of duplicative requests. The second prong of the test for tolling was also met. The Court found that the facts of this case were sufficiently similar to Vernon v. Heckler, 811 F.2d 1274 (9th Cir. 1987), to constitute an extraordinary circumstance. The Court concluded that the notice to counsel via ARS/ERE was sufficiently misleading as to hinder Plaintiff from filing his own request for review.

So, what was going on with the Appeals Council—assigning the claim to an adjudicator and, three weeks later, closing the case as “other”? There are at least two possibilities. One is that the Appeals Council considered “own motion” review. The Appeals Council randomly selects closed hearing-level cases that exhibit issues or fact patterns that suggest an increase in the likelihood of error. See Hallex I-3-6-1 (Own Motion Review — General). After a brief review, the Appeals Council either initiates a full review of the ALJ’s decision or allows the decision to stand. A second possibility is that the ALJ was subject to “focused review.” In such cases, all decisions are reviewed. In either situation, the ERE status will change relatively quickly.

Practice Tip: Best practice is to regularly review the ARS/ERE status reports for ALJ-level and Appeals Council-level cases (as well as the recently expanded reports for claims at the initial and reconsideration levels). The best practice is to file a Request for Review timely. If necessary and appropriate, timely file for judicial review. Be aware of possible Appeals Council “own motion” or “focused reviews.” If the need arises, rely on Jeremy H. to argue for timely filing of your appeal. And be creative in your arguments! You never know when it might pay off.

Medical records fee change for Tennessee

Effective July 1, 2024, non-hospital medical providers in Tennessee can only charge a flat fee of twenty dollars ($20) for an electronic copy of medical records requested by anyone other than the patient for “patients involved in a claim or appeal of denial for social security disability benefits.” Requests for paper records will continue to incur additional costs. (TN Public Chapter No. 737).

NOSSCR is pleased to see this claimant-friendly change. Should you wish to lobby your state representatives for similar changes, please reach out to NOSSCR for assistance.

Member brief bank: Call for briefs

NOSSCR is constantly striving to bring our members the most useful resources to better your practices. With all of the recent agency changes, we are hoping to update our brief bank to better reflect current law and policy. If you have any standard briefs (or language from within briefs) that you have found to be effective and would be willing to share with other members, please email us a redacted copy (free from PII) at jennifer.cronenberg@nosscr.org. We are open to pre-hearing, post-hearing, federal court, and any other writings that may be of interest to fellow members. Should you have standard questionnaires or other per-hearing resources that you have found valuable, we would also love to offer those as a resource.

Recently updated policies

Jennifer Cronenberg, NOSSCR Senior Counsel and Director of Legal Information

As SSA rapidly moves to improve their policies under Commissioner O’Malley’s leadership, multiple public-facing Program Operations Manual System (POMS) sections have required recent updating, and multiple Emergency Messages (EM) have been issued. While NOSSCR remains committed to pushing out notifications as soon as any crucial updates drop, we also wanted to take a moment to highlight some other changes that took place this month.

Generally, the POMS can be found here, but when there are changes, SSA issues a notice about what those changes are and why they were made. Those “recent changes” notices can be found here. While SSA does not provide a side-by-side comparison of the changes, NOSSCR is often able to obtain a prior copy of the POMS for comparison, and we review both old and new when providing our analysis. Emergency Messages (which provide additional instructions or temporarily supersede POMS instructions) can be found here.

Here’s a look at a few of the updates from this month that you might not have seen yet:

EM-24021 REV – 2024 Full Medical CDR Workload – while we previously announced SSA’s temporary halt on some CDRs for the remainder of FY 2024, this month SSA amended the list of cases that are excepted from this halt – so be sure to take a look at the updated EM and update your claimants accordingly.

GN 00502 TN 92 – Determining the Need for, Developing and Selecting a Representative Payee – “Youth in foster care are among the most vulnerable populations that the Social Security Administration serves. To help improve service and outcomes for youth in foster care, we are making clarifications to our foster care policy and adding an example of proper use of benefits for a child in foster care when reunification is imminent.”

EM-24020 REV – Supplemental Security Income (SSI) Underpayment Case Control Log – Here SSA provides “new procedures for technicians to follow when documenting Supplement Security Income (SSI) cases involving underpayments (UPs) of $15,000 or more requiring prepayment reviews.”

GN 03103 TN 51 – Hearings – SSA updated this section “to reflect the Division of Quality Service’s (DQS) process for handling complaints of alleged bias or misconduct by an ALJ as described in Social Security Ruling (SSR) 13-1p.”

The Krause Chronicles: Honoring the career of Senior District Judge Robert Pratt

Tom Krause, NOSSCR Litigation Director

As I mentioned in last month’s piece, Senator Harkin’s friend, the Honorable Robert W. Pratt, warrants his own story. So here goes.

Not long after NOSSCR was founded in 1979, a young Iowa attorney named Bob Pratt joined. And, as they say, the rest is history.

Bob had worked for Polk County Legal Aid for several years with, among others, future U.S. Sen. Tom Harkin. After entering private practice, Bob worked in several firms in Des Moines before establishing his own firm. Over the years, he developed a widely respected practice that focused on Social Security Disability and Workers Comp claims. Bob often said that he “is the only lawyer to have left legal aid and gotten poorer clients.”

Bob Pratt had an impressive record at the Eighth Circuit in the 1980s and into the 1990s. He appealed about two dozen cases, winning the great majority and shaping Social Security Disability law. He won some of the earliest cases regarding the application of the Medical-Vocational Guidelines (“the grids”). See, e.g., Talbott v. Bowen, 821 F.2d 511 (8th Cir. 1987); Fazio v. Heckler, 760 F.2d 187 (8th Cir. 1985); Pettijohn v. Heckler, 759 F.2d 669 (8th Cir. 1985). Bob also won some of the early cases on the shifting burden of proof at step 5 of the sequential evaluation process. See, e.g., Lewis v. Heckler, 808 F.2d 1293 (8th Cir. 1987); Kirksey v. Heckler, 808 F.2d 690 (8th Cir. 1987). Of note, he won an early case for a claimant with a somatoform disorder, now known as somatic symptom disorder. Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989)

One of Bob’s biggest cases was Gavin v. Heckler, 811 F.2d 1195 (8th Cir. 1987). In Gavin, the Eighth Circuit noted:

There is a notable difference between “substantial evidence” and “substantial evidence on the record as a whole.” “Substantial evidence” is merely such “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” . . .  “Substantial evidence on the record as a whole,” however, requires a more scrutinizing analysis. . . . In the review of an administrative decision, “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” . . . Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. . . . It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.

Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987) (citations omitted). According to WestLaw, this paragraph in Gavin has been cited 635 times.

But that’s not all. In 1997, President Bill Clinton appointed Bob Pratt to be a District Judge for the Southern District of Iowa. Sen. Tom Harkin, the Judge’s longtime friend and co-worker at Legal Aid, recommended him for the position. While Judge Pratt wrote many memorable district court decisions, two decisions written when sitting by designation on the Eighth Circuit are noteworthy.

In Wilcutts v. Apfel, 143 F.3d 1134 (8th Cir. 1998), Judge Pratt remanded the claim to determine whether the claimant was literate. Judge Pratt noted the WAIS-R was not a “pencil and paper” test; the test administrator reads the test to the test taker.

In the second case, the Court held that the opinions of non-treating, non-examining physicians ordinarily do not constitute “substantial evidence” to support an ALJ’s decision. Judge Pratt wrote:

In the case at bar, there is no medical evidence about how Nevland’s impairments affect his ability to function now. The ALJ relied on the opinions of non-treating, non-examining physicians who reviewed the reports of the treating physicians to form an opinion of Nevland’s RFC. In our opinion, this does not satisfy the ALJ’s duty to fully and fairly develop the record. The opinions of doctors who have not examined the claimant ordinarily do not constitute substantial evidence on the record as a whole. Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999).

Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). WestLaw indicates this paragraph has been cited 200 times.

Although not a Social Security case, one of Judge Pratt’s most famous cases involved a criminal matter. Brian Gall plead guilty to conspiracy to distribute ecstasy and was sentenced to 36 months of probation. The government appealed, challenging the sentence as an unjustified downward adjustment to the sentencing guidelines. The Eighth Circuit remanded for resentencing. The defendant petitioned for certiorari. The Supreme Court sided with Judge Pratt, finding he committed no significant procedural error and the decision to impose probation was not an abuse of discretion. In that case, the defendant had voluntarily withdrawn from a conspiracy to distribute “ecstasy” to live a law-abiding life years before he was charged with any misconduct. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).

In 2012, Judge Pratt assumed Senior status. He continued to hear cases, especially Social Security cases. Judge Pratt assumed status as an inactive Senior Judge on September 1, 2023. Throughout his career, Judge Pratt has been supported by his wife, Rosemary, and longtime assistant, Mike Messina. See Messina v. Iowa Dep’t of Job Serv., 341 N.W.2d 52, 54 (Iowa 1983).

We wish Judge Pratt all the best in retirement and thank him for his contributions to NOSSCR, to Social Security Disability law, and to the law in general.

For more information on the life and career of Judge Pratt:

Iowa State Bar Association, Retired U.S. District Court Judge Robert W. Pratt: A lifetime of service and advocacy (March 13, 2024)

Bleeding Heartland, Judge Robert Pratt legacy thread (Nov 14 2012)

American Law Institute, The Hon. Robert W. Pratt (2019)

Social Security releases new study

This month, Social Security released a new study entitled “Structurally Disabled: A Qualitative Study of Structural Contributors to Disability.” Researcher Makini Chisolm-Straker describes the origin of the study, detailing that “in 2022, Social Security set out to understand more about how to support potential applicants and actual recipients of Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) programs.” The study concludes, in part, that “improvements of some SSA policies, programming, and regulations can improve SS(D)I service provision to people with impairments and consequently increase participation in the workforce.”

You can read and download the full study below.

Opening July 1st – NOSSCR Merch Store!

Ever wished you could shout your NOSSCR spirit from the rooftops (or at least the office, gym, or cozy nights in)? Well, wish granted! We’re thrilled to announce the launch of our brand-new online merchandise store! 

Starting July 1st, you can show off your love for NOSSCR with stylish and comfy gear perfect for any occasion. We’re talking: 

• Hydration Heroes: Stay hydrated while you hearing prep with our sleek and sustainable water bottles. 
• Top it Off: You’re always camera-ready for those virtual meetings with a NOSSCR hat.  
• Cozy Companions: Snuggle up in ultimate comfort with our oh-so-soft sweatshirts—perfect for a long brief writing session or taking some well-deserved time away from your desk. 

This is just a taste of what awaits! We’ve got something for everyone, so head over to our store and browse the full collection.

Here’s what makes our store awesome: 

• High-Quality Gear: We use premium materials to ensure your new merch looks and feels fantastic. 
• Direct to You: Your chosen gear will be shipped directly to your doorstep. 
• Show Your Support: Every purchase helps us continue to bring you amazing events and top-tier advocacy.  

Don’t wait any longer! Gear up and proudly represent NOSSCR. Visit our site on July 1st for the grand opening!

Happy Shopping! 

PAC Contributor List

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS

As of June 2024

Contributions to the National Organization of Social Security Claimants’ Representatives PAC (NOSSCR PAC) are not tax-deductible as a charitable contribution for federal income tax purposes. Contributions to NOSSCR PAC will be used to support federal and state candidates, political parties, and other political committees.  Contributions are strictly voluntary.  You may refuse to contribute without reprisal.  Any proposed contribution level is merely a suggestion, and you are free to contribute more or less than suggested.  You will not benefit or be disadvantaged by reason of the amount of your contribution or a decision not to contribute.  Federal law requires NOSSCR PAC to use its best efforts to collect and report the name, mailing address, occupation and employer of persons whose contributions exceed $200 in a calendar year.  You must be a U.S. citizen or lawfully admitted for permanent residence in the U.S. to contribute.

Daily dose of data from SSA

SSA’s Office of Retirement and Disability Policy has released the following:

• Monthly Statistical Snapshot, May 2024: A monthly snapshot of statistics on Social Security beneficiaries and Supplemental Security Income recipients.
• SSI Monthly Statistics, May 2024: These monthly tables provide statistics for federally administered payments and awards under the Supplemental Security Income (SSI) program.

This month SSA also released the 2024 SSI Annual Report and related materials.

Chief Actuary Steve Goss testified before Congress twice this month and his testimony can be read at the links below:

• Testimony to the House Budget Committee: Social Security: Examining Solvency and Impacts to the Federal Budget
• Testimony to the House Committee on Ways and Means, Subcommittee on Social Security Social Security Actuarial Status: The 2024 Trustees Report

Chief Actuary Goss also presented at the National Academy of Social Insurance (NASI) 50th Year Celebration of SSI this month. His presentation slides on “SSI Recipients and FBR Level” offer an interesting look at the status of SSI. He gave another presentation this month with Deputy Chief Actuary Mike Stephens at the 2024 Society of Actuaries Health Meeting. Their presentation slides on “Social Security Disability Insurance Update” offer comprehensive graphics on the state of disability insurance.

An update on Forum printing

NOSSCR understands that having a printable Forum is important to many of our members, and as such, we are pleased to offer a new printable version of the Forum! Each month, after you navigate to that month’s issue homepage, scroll down the page until you see “recent newsletters” on the left-hand side. There, you will find the current issue’s printable version. Click on that version, then use the “print issue” or “print article” buttons. The content for this version is identical to the online version of the Forum, with the caveat that it only has links to any attached documents (versus the embedded version of those documents that we offer in our online version).

If you have any issues accessing this new feature, please reach out to us at nosscr@nosscr.org.

Useful Resources

Follow the links below to find the most recent OHO caseload analysis report, contact information for every Field Office and Regional Communications Director, SSA’s updated rules and regulations, ALJ statistics, and other publicly released data.

‣ OHO Caseload Analysis Report, May 2024

‣ Dataset with Contact Information for Each Field Office

‣ Regional Communications Directors

‣ HALLEX Contents & Recent Changes

‣ Chief Judge Bulletins (CJBs)

‣ POMS Recent Changes

‣ Emergency Messages (EMs)

‣ ALJ Disposition Data

‣ FOIA Reading Room – Proactive Disclosures