Dispatches from Camp: Updates from the CEO (Copy)

David Camp, NOSSCR CEO

As NOSSCR’s CEO, I have the privilege of directing an amazing staff in working for you—our members—on events, education, services, and litigation while serving as a resource for media coverage of the Social Security disability program. A significant part of my job involves pursuing NOSSCR’s political and administrative advocacy agenda. The Social Security Administration is more active now than ever before in my career, and I’ll use this column to keep you updated on recent improvements and continued efforts.

2024 Wins

For now, I’ll sum up what has been an extraordinarily productive year—with the caveat that more will come, and some changes require the slower process of either regulation or longer-term modernization development.

In these first nine months of 2024, the list of wins is already long. Notably, very few of these items involve NOSSCR advocating alone. We work alongside dozens of other robust organizations, preferring a coalition and collaborative approach whenever possible. NOSSCR communicates directly with Commissioner O’Malley multiple times each month. We meet on a regular schedule with his leadership team and the Deputy or Associate Commissioner leadership of every SSA component. While Congress remains gridlocked and ineffective, our work with SSA has produced meaningful results:

• Fee Agreement cap increase
• Fee Agreement cap tied to annual COLA starting in 2026
• 15 to 5 policy change for past relevant work
• Initial and reconsideration stages claim data available in ARS/ERE
• Hearing format flexibility retained
• Aged SSI fees and back benefits released
• SSI underpayment review (and delay) raised from $5,000 to $15,000
• Electronic signatures policy
• Signatures removal
• Vocational evidence policy improvement (as to questionable and obsolete occupations)
• Substantial relief for the Conn victims (overpayment waivers and hearings based on current evidence)
• Collateral estoppel policy
• Overpayment waiver policy ($2,000 administrative waiver)
• Overpayment collection policy (10% default on SSDI, 60 months collection period)
• SSI installment payments policy (documents not required)
• SSI expansion of public assistance household to include SNAP
• SSI exclusion of food
• SSI expansion of rental subsidy policy

Ongoing Advocacy

NOSSCR recently launched a multi-pronged advocacy effort concerning the costs and burdens of medical records. As you are all aware, some states prohibit costs for medical records needed in Social Security claims, while others allow high costs imposed by for-profit companies—despite digital access to records being paid-for within medical bills. NOSSCR believes this practice is “record blocking,” and that HHS should provide a regulatory solution applicable in every state and whenever records are needed to furnish evidence for a disability claim. We’re engaging state legislators, seeking the support of federal elected officials, educating the media, and encouraging SSA to communicate with HHS about the harmful effects of medical records costs. In states where medical records can cost hundreds of dollars, we see slower claim processing times, lower incidence of SSI representation, and the offensive “disability tax” of costs passed through to those claimants who are too impaired to access free portals on their own.

We’re also working to expand SSA’s use of HIT at the ALJ hearings level, while supporting options for access to digital medical records exchanges for either representatives or SSA itself.

We continue to work with SSA on payment center delays. We’re focused on delayed fees and past-due claimant benefits generally but have recently highlighted, directly to SSA senior leadership, the extreme problem concerning cases that have been remanded from federal court.

The DDS backlog and historically high processing times are also at the top of NOSSCR’s advocacy agenda. NOSSCR continues to work with SSA on expanded online access to information at the initial and reconsideration stages (including the type of decision, and the DDE) while building direct lines of communication for representatives. Representation speeds up claim processing times—especially at the early stages—and lowers SSA’s administrative costs. With more functional options to help claimants early in the disability claim process, we look forward to an increasing rate of representation.

What’s Next

Watch your inbox and this newsletter for updates in the coming weeks and months on these topics where NOSSCR is working hard to deliver more improvements:

• More data in SSA’s representative portals, including an exciting new category!
• Launch of an online SSI application
• Communications improvements made possible by SSA’s switch from Verizon to AWS
• More signature removals
• Fee Petition improvements
• Implementation of the fee payment recognition of entities

Thank you for your NOSSCR membership, and please feel free to contact us with suggestions on these or any other topics.

President’s Corner (Copy)

Rick Fleming, NOSSCR President

At the beginning of Commissioner O’Malley’s term NOSSCR sent a list of its policy priorities and proposed solutions. As we near the end of the fiscal year, this is a good opportunity to review all that we have been able to accomplish together in FY 23-24 which, I believe you will agree, is a great deal.

Whether it is changes to policy on collateral estoppel, ISM, 15 to 5, electronic signatures, the fee cap increase and its being tied to an annual COLA, or the sixteen other incredible improvements, the progress we have made is staggering. Together in partnership with senior leadership at SSA, NOSSCR and like-minded organizations joined forces and sat down to do the hard work. These changes improve the program as well as the lives of both claimants and their representatives.  But there remains much to be done. 

At its September Board meeting in Washington, D.C., the Board voted on its updated policy priorities for 2024-25, one of which I would like to highlight, and that is the cost of medical records. For far too long those most in need of help are taxed by for-profit medical record companies, many times to the tune of hundreds or thousands of dollars. The burden imposed on claimants who are unable to access their own records is immense. Behind the scenes NOSSCR continues to be hard at work to address this issue. Stay tuned. 

I would like to thank our hard-working Board of Directors, the NOSSCR staff, and our members for all of the effort that has gone in to the changes you are now seeing in your practice. Great things can happen when we join together. Your membership in NOSSCR makes us better and amplifies our voice, and your contributions to the NOSSCR Foundation and the NOSSCR PAC allow us to take our advocacy to Woodlawn and the Hill. If you are interested in increasing your membership from regular to sustaining, or if you are interested in endowing a scholarship or litigation fund, or speaking at an upcoming seminar please reach out to us at nosscr@nosscr.org. 

Beginning next month there will be calls to action, and I look forward to continuing our work together. 

NOSSCR Submits Comments on the Agency’s Proposed iSSI Expansion (Copy)

This week, NOSSCR submitted comments on the agency’s proposed iSSI expansion. If you’re experiencing déjà vu, it is because the agency asked for comments on this proposed expansion almost exactly one year ago (and we also submitted comments them). After last year’s comment period, the agency delayed expansion until now. While this proposed expansion still leaves a lot to be desired, it is an important first step in moving the SSI application fully online, and we hope that the agency will follow through with their proposed enhancements and continue to improve upon them in the near future. Our official comments are below.

Can the Recent PRW Changes Apply to Current Federal Court Civil Actions? (Copy)

Wes Kappelman, 8th Circuit NOSSCR Member

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

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

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

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

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

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

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

FOSSCR Recap + Registration Open for Other Regional Events! (Copy)

Last week, in beautiful San Antonio, TX, Fifth Circuit NOSSCR members gathered together at our “FOSSCR” conference for a few days of beautiful sights, delicious food, fantastic networking, and outstanding learning opportunities. The group heard directly from NOSSCR CEO David Camp about the transformative wins we have seen this year through meaningful agency policy and rule changes, and they heard from OHO ALJ Suing about the important changes that are taking place at the hearing level.

Regional gatherings afford practitioners the opportunity to form close bonds with fellow practitioners while discussing local issues. Referral connections can be made and practices can be grown by attending these valuable in-person events. So don’t miss your chance to join one of our remaining fall events!

October 10-12, Portland, OR – NextGEN Retreat

October 24-25, Raleigh, NC – Southeast Regional Conference

November 7-8, Fayetteville, AR – Eighth Circuit Conference

Piemonte’s Perspective (Copy)

George Piemonte, NOSSCR 11th Circuit Board Representative

We will review some general principles about cross-examining the VE for this month’s installment.

1. You have the right to fully question the VE on any pertinent matter within the VE’s area of expertise per HALLEX I-2-6-74(C). I recommend having a copy of that HALLEX with you in all hearings so you can hand up a copy to the ALJ if necessary. Suppose the ALJ still gives you grief about a proper cross-examination. In that case, I have found the following question will usually take care of it: “So, your honor, just to be clear for the hearing recording, you are instructing me not to fully develop the record for this case?”

2. Save attacks for ridiculous testimony that is material. To illustrate, the VE says employers will allow workers to lie down during the workday whenever needed. You know that is ridiculous and is far from accurate. But there is no evidence in the record or testimony your client needs to lay down. So, while the VE’s statement is clearly ludicrous, it does nothing to harm your client’s case. Attacking it and getting the VE to concede it is wrong does nothing to advance your client’s case.
   • Now if the evidence documents that your client has migraine headaches two times a week at unpredictable times and must lay down for 1 to 2 hours until it subsides, the VE’s statement does do harm to your client’s case. That is a time to attack.
     • So, the bottom line is to be sure to ask questions that are pertinent to the case and supported by the evidence.

4. Asking a hypothetical question is usually essential, but it is not a cross-examination. The ALJ can summarily dismiss your hypothetical by saying something like it “is not supported by the record.” Please don’t make it easy for the ALJ to ignore your questions. You also must attack and hopefully eliminate materially harmful testimony. 

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.

Rebecca Vallas Made Honorary Member (Copy)

On September 13, 2024, NOSSCR’s Board voted unanimously to make Rebecca Vallas an Honorary Member of NOSSCR. Rebecca began her career at the esteemed Community Legal Services of Philadelphia – an outstanding organization that continues to provide free civil legal assistance to low-income Philadelphians while simultaneously advocating for needed critical policy changes. From there, Rebecca joined NOSSCR as a staff member, serving as our Deputy Director, Government Affairs before moving on to co-found the Clean Slate Initiative and then join the Center for American Progress, where she worked tirelessly on the Poverty to Prosperity Program. She then served as the Senior Fellow and Co-founder of the Disability Economic Justice Collaborative where she founded the organization’s disability economic justice work and organized a bipartisan, cross-sector coalition in support of reforming Supplemental Security Income’s antiquated asset limits.

Rebecca now serves as the Chief Executive Officer of the National Academy of Social Insurance – a diverse, nonpartisan network of more than 1,200 of the nation’s leading experts on Social Security, Medicare, and other social insurance programs. She has authored numerous policy reports and proposals on social insurance and public assistance, disability policy, and reentry policy, aiming to strengthen Social Security and improve its accessibility for those who are entitled to benefits. Rebecca has used her platform to deliver powerful messages to Congress, including her recent testimony in front of the Senate Budget Committee where she eloquently educated the committee on the importance of considering the disparities in life-expectancies for lower-income individuals and people of color when contemplating raising the retirement age.

NOSSCR is proud to count Rebecca as one of our staff-alumni, we are grateful for her friendship and partnership on important policy issues, and we are delighted to honor her with an honorary membership.

Register Now for Our Virtual Conference! (Copy)

Looking for continuing education opportunities but prefer PJs to pinstripes? Our upcoming Virtual Conference is perfect for you!

Join us on December 10 and 11 for two days of non-stop learning opportunities.

Do you find you often have more questions than answers about the difference between EAJA, 406a, and 406b fees? Let our esteemed fee panel straighten you out!

Have you ever recommended an ABLE account to a qualifying claimant? Do you know that the rules will soon change and many more claimants will be eligible? Hear from our friends at the National Association of State Treasurers about when and how to set your clients up for financial success.

And of course, don’t miss the chance to hear directly from SSA Senior Staff about the latest activities at the agency.

Check out the schedule below—all times Eastern.

Interested in being one of our Virtual Conference Sponsors? We’d love to have you! Visit our site or contact us at nosscr@nosscr.org to learn more.

NOSSCR Members Share Their Voices on Capitol Hill (Copy)

This month two of our NOSSCR members, Meghan Gallo of Arkansas and Rob Wendt of South Carolina, joined NOSSCR on Capitol Hill to share personal stories and perspectives with their elected officials.

Meghan, an 8th Circuit Sustaining Member, recounts her day like this:

“This was my first time meeting with members of Congress on Capitol Hill, and the experience was both encouraging and eye-opening. I was impressed by their genuine interest and concern for the disabled community, as well as their willingness to listen and engage in meaningful discussions about the struggles our clients face throughout the challenging Social Security disability process. They also openly shared their own experiences and concerns, making for a truly productive and insightful exchange.”

Rob, who is currently serving as our Board Treasurer, summed up his experience as follows:

“Visiting your own members of Congress and their staff in Washington is powerful advocacy. I’ve done Capitol Hill visits for years and doing them with the professional guidance of NOSSCR’s Government Relations Director Betsy Rosecan and CEO David Camp makes it easy and fun, and better yet, highly effective. All NOSSCR members have powerful stories about our clients’ struggles with the disability process, and your members of Congress need to hear them.”

We were privileged to spend a day with each of these great members while helping to elevate their voices in D.C. We encourage all of our members to participate in this type of hands-on advocacy. If you would like to talk more about how you can get involved, please reach out to us as nosscr@nosscr.org.

Limited English, Employability, and Chevron: a Case to Watch (Copy)

Pong Chulira, 7th Circuit NOSSCR Member

In its Equity Action Plan, the SSA expresses its commitment to serving all Americans, regardless of their ability to communicate in English. However, the way SSA handles claims from individuals who cannot communicate in English raises questions about the sincerity of its equity goals.

For over four decades, SSA acknowledged the challenges faced by individuals who do not speak or understand English, particularly those aged 45 or older. SSA recognized that older, non-English speaking workers found it more difficult to achieve the fluency necessary for new employment opportunities.  For example, Rule 201.17 of the Medical-Vocational Guidelines, dictated a finding of disabled for a claimant limited to sedentary work who was illiterate or unable to communicate in English.

That all changed in early 2020, when SSA adopted new regulations that changed this approach.  The new rules determined that an individual’s ability to speak and understand English is not relevant to their employability for the purposes of the Social Security Act. Specifically, the “inability to communicate in English” is no longer an educational category that is considered at Step Five of the Sequential Evaluation Process. Removing Inability to Communicate in English as an Education Category, 85 Fed. Reg. 10586, 2020 WL 885690 (Feb. 25, 2020).  For example, the previously mentioned Grid Rule 201.17 was amended to simply “illiterate.” 

This change has led to significant confusion.  On one hand, SSA acknowledges the need to accommodate claimants with limited English abilities during the application and appeal process, (see, e.g., POMS GN 00203.011, Special Interviewing Situations: Limited English Proficiency (LEP) or Language Assistance Required), on the other hand, SSA no longer considers English language proficiency when adjudicating claims.

The current rule overlooks the fact that the ability to speak and understand English is referenced in the General Educational Development language standards within the Dictionary of Occupational Titles (DOT).  The DOT specifies language requirements for various occupations.  In almost all circumstances, the language requirements for the occupations cited by a vocational expert (VE) for a claimant who cannot speak or understand English will exceed a claimant’s residual functional capacity.  For example, Language Development Level 1 requires a person to recognize the meaning of 2,500 words, read at a rate of 95-120 words a minute, write simple sentences, and speak simple sentences using present and past tenses.  Dictionary of Occupational Titles, Appendix C, available at https://occupationalinfo.org/appendxc_1.html. Language Development Level 2 requires a person to have a vocabulary of 5,000-6,000 words, read at a rate of 190-215 words per minute, write compound and complex sentences, and speak clearly using appropriate emphasis, pronunciation, and present, perfect, and future tenses. Id.  Accordingly, the DOT—SSA’s bible at Step 5—recognizes that an individual’s ability to understand English is relevant to their employability.

This issue was highlighted in a case that we appealed to the First Circuit.  During the hearing, the attorney asked the VE, “If the individual identified was not proficient in English, to the point that they could speak fluently, would that affect . . . their ability to work?”  The VE testified, “It would; yes . . .”  and eliminated the majority of the previously cited jobs.  The ALJ then attempted to rehabilitate the VE testimony by asking, “Would this person have any trouble working in a location where the predominant language or the predominant number of customers’ language were Spanish-speaking or her native language?”  Ultimately, however, the VE admitted he could not determine whether the language issue would affect the number of jobs or eliminate jobs entirely.

Following the Supreme Court decision in Loper Bright Enterprises v. Raimondo, 114 S.Ct. 2244 (2024), which overturned Chevron Deference, we sought additional briefing to argue that SSA’s interpretation of education to exclude English language proficiency was unreasonable.  SSA’s purported “reasoned decision making,” for example, relied on questionable employment data as highlighted in the public comments.

The current rule fails to reflect the reality of the language barrier on an individual’s ability to transition to new occupations. Overcoming Chevron Deference was a mountain we needed to climb in our pursuit of justice for our clients.  Now, we hope that the terrain is flatter as we continue to zealously represent claimants with limited English proficiency.

While the current SSA administration emphasizes advancing equity through its mission, it should also consider the detrimental impact of certain regulations, like this one, on vulnerable groups, such as individuals who cannot communicate in English. Until then, we must persist in advocating for these claimants.

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.

Just Ask Jennifer (Copy)

Jennifer Cronenberg, NOSSCR Senior Counsel and Director of Legal Information

The day is finally here when three important SSI regulatory changes take effect. But what exactly will these changes look like come Monday, September 30, 2024, and how should you advise your clients about the implementation of these changes? Let’s take a look.

Like all things SSA, the changes are complex and should be read in their entirety, but here’s a basic summary of what’s included:

• Expand the Definition of a Public Assistance Household
  • Supplemental Nutrition Assistance Program (SNAP) (aka “food stamps”) will be included as an additional means-tested public income-maintenance (PIM) program (it had previously been excluded);
  • A public assistance household (PA) will now be one in which any other household member receives at least one PIM payment (it had previously been every other household member).

• Expansion of the Rental Subsidy Policy for Supplemental Security Income (SSI) Applicants and Recipients
  • An applicant/recipient will no longer be considered to be receiving In-Kind Support and Maintenance (ISM) if the amount of monthly required rent that they must pay equals or exceeds the presumed maximum value (PMV).
    • This means that a person can pay reduced rent to a friend of family member and not get hit with the ISM reduction, so long as their monthly discounted rate amount equals or exceeds the PMV.

• Omitting Food From In-Kind Support and Maintenance Calculations
  • SSA will no longer consider food expenses in their ISM calculations.

The first clues we have for how SSA will process these changes came this week in the form of an Emergency Message (EM):

• EM-24047: SSI Living Arrangements Regulatory Changes – Technician Instructions for Identifying and Processing Affected Cases

This EM details complex instructions that the Field Office (FO) and Regional staff should follow as they effort implementation of these changes. Will everything go smoothly? Certainly not. But here are some tips that you can follow to try and help:

1. If your client is paying some money to a friend or family member for monthly rent, encourage them to a) make sure it equals or exceeds the PMV, and b) put this “rental agreement” in writing, including the start date of payments. Having this documentation will help prevent getting hit unnecessarily with the 1/3 benefit reduction.

2. Encourage your clients to get documentation of their SNAP benefits AND to get documentation of the other household member’s PIM payment. The client should have this documentation on hand when visiting the FO.

3. If your client is eligible for a benefit change based on one of these modified rules, encourage them to take their documentation to SSA and ask for a change in benefit amount asap. While these changes are not retroactive, they do apply beginning this month, September 2024, so swift action is recommended.

4. Consider reaching out to your clients advising them to check their statements for ISM reductions. Our friend Andrew Kazakes of the Legal Aid Foundation of Los Angeles graciously shared the following language for potential use with your clients:

Important! If your SSI has been lowered because SSA says you get help with housing or food costs—or because you are living in someone else’s home—you may be eligible to increase your monthly SSI benefits by hundreds of dollars. This is because Social Security rules have just changed to make it easier to remove this common SSI reduction.

How do I know if I can benefit from this rule change?

Check if your SSI gets lowered because of “In-Kind Support & Maintenance” or “ISM.” You can call or visit Social Security to ask if this rule applies to you. Details vary, but some signs this rule applies are if your SSI is reduced by around 1/3 of the full SSI benefit in your state, or you got a notice counting the “Value of food and shelter” as your income.

We have heard that SSA will be sending out an email blast to SSI recipients who might be impacted by these changes, but we have not yet seen the text of that email (should you come across a copy from one of your clients, please redact and forward it to me at jennifer.cronenberg@nosscr.org). At NOSSCR and the advocacy community at large, we are very interested to hear how implementation of these changes is going at the local level. In the coming weeks, we will be releasing a survey to collect data on the success of this roll-out so that we can troubleshoot any widespread problems with the administration. So please touch base with your clients to better understand what they’re seeing out there, and be sure to share that feedback with me (either by completing our upcoming survey or emailing me directly). And remember, patience is going to be required, but these are long-fought-for positive changes that will ultimately improve the lives of many beneficiaries.

SSA has also updated the following POMS to match these changes (with more updates expected soon):

• POMS SI 00835.130: Public Assistance Households
• POMS SI 00835.380: Rental Subsidies

Finally, here’s a look at the “Policy in Focus” document that SSA released to their staff this week:

Recent Cases of Interest: The Logical Bridge and “Cherry-Picking” Evidence (Copy)

Tom Krause, NOSSCR Litigation Director

Reviewing recent cases to find something of interest to our members is challenging – there are so many good cases out there. Reviewing cases decided in September 2024, I noticed a pattern. Several recent cases talk about an ALJ’s duty to build a “logical bridge” in determining disability. In less than a month, at least 5 cases from within the Seventh Circuit referred to the “logical bridge.” Within the last two months, the Fourth Circuit and several district courts also discussed the “logical bridge.” So, what is it? Will it help me win cases? And, while we are at it, what is “cherry-picking”?

The concept of a “logical bridge” is not new. For years, the Seventh Circuit has required an ALJ to build a “logical bridge” from the evidence to the conclusion. See, e.g., Terry v. Astrue, 580 F.3d 471 (7th Cir. 2009); Getch v. Astrue, 539 F.3d 473 (7th Cir. 2008). Reviewing courts must be able to trace the reasoning process used by the ALJ to ensure that their decision is supported by substantial evidence. In contrast, “cherry-picking” means to cite only the evidence that supports the desired conclusion, ignoring the great weight of conflicting evidence.

One of the earlier cases to explain the “logical bridge” is Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002). Under Steele, principles of administrative law require the ALJ to rationally articulate the grounds for her decision and confine judicial review to the reasons supplied by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93–95, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir. 1999); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). That is why the ALJ (not the Commissioner’s lawyers) must “build an accurate and logical bridge from the evidence to her conclusion.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).

While the concept of a “logical bridge” is not new, it seems it is becoming more popular and is being cited more often. Here is a sampling of cases within the Seventh Circuit and from other circuits decided in the last 2 months.

District Courts in the Seventh Circuit

Cynthia A. v. O’Malley, No. 22 C 596, 2024 WL 4170205 (N.D. Ill. Sept. 12, 2024)

• It is well-settled law that an ALJ cannot cherry-pick which evidence to evaluate and disregard other relevant evidence. Scrogham v. Colvin, 765 F.3d 685, 696-99 (7th Cir. 2014). Although the ALJ is not required to provide a complete and written evaluation of every piece of testimony and evidence, he must build a logical bridge from the evidence to his conclusion. Warnell v. O’Malley, 97 F. 4th 1050, 1054 (7th Cir. 2024); Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015).
• With respect to an ALJ’s obligation to consider the evidence of record, the law is clear that the ALJ “may not ignore entire swaths of it that point toward a finding of disability.” Lothridge v. Saul, 984 F.3d 1227, 1234 (7th Cir. 2021); Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.”). If the ALJ did consider these limitations and rejected them, he does not say that. He also does not explain how the RFC accommodates these limitations, and the Court cannot speculate. Therefore, remand is required.

Dwight L. v. O’Malley, No. 3:23-CV-00189-KFR, 2024 WL 4164431 (D. Alaska Sept. 12, 2024)

• This Court is confined to reviewing the reasons the ALJ asserts. An ALJ may discount an opinion that is conclusory, brief, and unsupported by the record as a whole, or by objective medical findings. The consistency of a medical opinion with the treatment notes is a relevant factor in the ALJ’s evaluation of that opinion. However, an ALJ may not “cherry pick” evidence to discount a medical opinion.

Joseph W. v. O’Malley, No. 23-CV-3084-SMY, 2024 WL 4143613 (S.D. Ill. Sept. 11, 2024)

• The RFC is a measure of what an individual can do despite the limitations imposed by his impairments. 20 C.F.R. § 404.1545(a). It is “a function-by-function assessment based upon all of the relevant evidence of an individual’s ability to do work-related activities,” Id., and must be supported by substantial evidence. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). An “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). However, “an ALJ need not mention every piece of evidence, so long as he builds a logical bridge from the evidence to his conclusion.” Id. (citing Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008)).

Fred D. v. O’Malley, No. 23-CV-1446-SM Y, 2024 WL 4143611 (S.D. Ill. Sept. 11, 2024)

• The RFC is a measure of what an individual can do despite the limitations imposed by his impairments. 20 C.F.R. § 404.1545(a). It is “a function-by-function assessment based upon all of the relevant evidence of an individual’s ability to do work-related activities,” Id., and must be supported by substantial evidence. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). An “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). However, “an ALJ need not mention every piece of evidence, so long as he builds a logical bridge from the evidence to his conclusion.” Id. (citing Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008)).

Kolosick v. O’Malley, No. 23-C-1050, 2024 WL 4053034 (E.D. Wis. Sept. 5, 2024)

• Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811 (citing Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009)). The ALJ “must build an accurate and logical bridge from the evidence to his conclusion[s].” Clifford v. Apfel , 227 F.3d 863, 872 (7th Cir. 2000) (citation omitted); Groves v. Apfel , 148 F.3d 809, 811 (7th Cir. 1998)).
• Although an ALJ need not mention every piece of evidence in the record, she “cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) (citation omitted).

District Courts Outside the Seventh Circuit

Stephen R. v. O’Malley, No. 21-2292, 2024 WL 3508155 (4th Cir. July 23, 2024)

• “[T]he RFC ‘assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).’ ” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin , 780 F.3d 632, 636 (4th Cir. 2015) ). “To pass muster, ALJs must ‘build an accurate and logical bridge’ from the evidence to their conclusions.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 95 (4th Cir. 2020) (quoting Monroe, 826 F.3d at 189).
• “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) ).

Anne J.W. v. O’Malley, No. CV 22-00448, 2024 WL 4137312 (E.D. Pa. Sept. 10, 2024)

• However, it is apparent that the ALJ selectively cited facts that support his conclusion while ignoring those that do not. Federal courts in this district, and across the country, recognize that an ALJ is entitled to accept some evidence and to reject other evidence with proper reason. But an ALJ is not entitled to “cherry pick” favorable evidence and ignore facts that run counter to his findings. As Plaintiff correctly observed, the ALJ’s singling out of broad activities, while ignoring specific limitations in performing them, deprives the Court of meaningful review of the Decision. This is particularly problematic here, where the ALJ so heavily relied on these observations to discount the opinions of several medical providers.

Ebony B. v. O’Malley, No. 21-CV-1742-MAU, 2024 WL 4133288 (D.D.C. Sept. 10, 2024)

• The ALJ impermissibly cherry-picks reports from 2019 (allegedly during times of SUD [substance use disorder]) and 2020 (non-SUD) to assert that Plaintiff had various limitations on concentration or memory when she was using substances, but not without. For example, the ALJ claims that Plaintiff “reported poor concentration and frustration” when she was using substances. . . Further, reports . . . after Plaintiff reportedly stopped using substances []reflect identical assessments of her behavior; orientation; attention span and concentration; memory; thought process; and thought content.

Blake v. O’Malley, No. 5:23-CV-486-RJ, 2024 WL 3888910 (E.D.N.C. Aug. 20, 2024)

• “[T]he residual functional capacity ‘assessment must first identify the individual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions’ listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
• The ALJ’s mischaracterization of the record is error. “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) ). To be sure, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm’r of Soc. Sec. Admin., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).

Amanda G. v. O’Malley, No. 2:23-CV-02228-DCC-MGB, 2024 WL 3432181 (D.S.C. June 18, 2024), report and recommendation adopted sub nom. Gilmer v. Comm’r of Soc. Sec. Admin., No. 2:23-CV-02228-DCC, 2024 WL 3429788 (D.S.C. July 15, 2024)

• However, the court does not “reflexively rubber-stamp an ALJ’s findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge’ from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).

Legislative Spotlight (Copy)

Betsy Rosecan, NOSSCR Government Relations Director

On September 17, 2024, the House of Representatives passed H.R. 3784, the Improving Social Security’s Service to Victims of Identity Theft Act, by voice vote. The bill was introduced in June of 2023 by Congressman Drew Ferguson (R-GA) and was cosponsored by Congressman John Larson (D-CT) and Congresswoman Nicole Malliotakis (R-NY).

H.R. 3784 would require the Social Security Administration (SSA) to provide victims of identity theft with a single point of contact at the agency when the misuse of their Social Security number results in the need to resolve an issue or issues with the SSA or when their Social Security card is lost in the mail.

This legislation was received in the Senate on September 18, 2024, where it was referred to the Senate Committee on Finance.

Bill Details:

To amend title VII of the Social Security Act to provide for a single point of contact at the Social Security Administration for individuals who are victims of identity theft.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Improving Social Security’s Service to Victims of Identity Theft Act”.

SEC. 2. Single point of contact for identity theft victims.

(a) In general.—Title VII of the Social Security Act (42 U.S.C. 901 et seq.) is amended by adding at the end the following:

“SEC. 714. Single point of contact for identity theft victims.

“(a) In general.—The Commissioner of Social Security shall establish and implement procedures to ensure that any individual whose social security account number has been misused (such as to fraudulently obtain benefits under title II, VIII, or XVI of this Act, or in a manner that affects an individual’s records at the Social Security Administration, or in a manner that prompts the individual to request a new social security account number) or whose social security card has been lost in the course of transmission to the individual has a single point of contact at the Social Security Administration throughout the resolution of the individual’s case. The single point of contact shall track the individual’s case to completion and coordinate with other units to resolve issues as quickly as possible.

“(b) Single point of contact.—

“(1) IN GENERAL.—For purposes of subsection (a), the single point of contact shall consist of a team or subset of specially trained employees who—

“(A) have the ability to coordinate with other units to resolve the issues involved in the individual’s case, and

“(B) shall be accountable for the case until its resolution.

“(2) TEAM OR SUBSET.—The employees included within the team or subset described in paragraph (1) may change as required to meet the needs of the Social Security Administration, provided that procedures have been established to—

“(A) ensure continuity of records and case history, and

“(B) notify the individual when appropriate.”.

(b) Effective date.—The amendment made by subsection (a) shall take effect 180 days after the date of enactment of this Act.

Passed the House of Representatives September 17, 2024.

Annual Conference Speaker Proposal Submission Window to Open October 1, 2024 (Copy)

Have you always dreamed of presenting at a NOSSCR Conference? Or maybe you’ve presented before and absolutely loved it.

Well get those speaker proposals ready because the submission window for our upcoming annual conference is set to open October 1, 2024.

This year’s conference will be held in Washington D.C., April 23-26, 2025, and will feature exciting opportunities to join NOSSCR on the Hill.

So if there’s continuing education content that you’d love to share–or maybe a subject that you wish would be featured that you have some time to dive into, now is the time to get those thoughts together! We love featuring our members—new and old—all submissions are welcome. We can’t wait to see what you submit!

Member News (Copy)

Each month, we will strive to bring you updates about your fellow NOSSCR members – celebrations of life, marriages, children, business moves, publications – whatever you would like to share. We want to feature YOU, our wonderfully diverse members. So please email jennifer.cronenberg@nosscr.org with the subject “member news” with anything you would like to see included in this space.

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This month, we celebrate the life of longtime NOSSCR member David Samuel Simon of Sarasota, FL. David was proud to serve his community as a Social Security disability advocate, and we were lucky to count him as one of our members. As his obituary details, “David derived great satisfaction helping clients navigate the complex and challenging disability benefits process. As one of his clients said, “David walked me through every step of my case and treated me like family.””

Many of you had the pleasure of interacting with David during one of his many appearances at NOSSCR conferences, or during an 11th Circuit roundtable, where he was a welcome fixture for many years (unless, of course, the conference conflicted with a Stanley Cup playoff game featuring his beloved Tampa Bay Lightening). In addition to his practice, David was a loving husband, son, brother, and uncle. Committed to lending his skills to those in need, David devoted many pro bono hours to Legal Aid Manasota. Donations to Legal Aid Manasota are welcomed in his memory.

SSA’s Updated Signature Requirements (Copy)

For years, NOSSCR has been working directly with SSA leadership, encouraging them to pivot to electronic signatures and eliminate unnecessary signatures and mailings. Now, we are seeing some substantial progress.

You may have seen SSA’s announcement that signature requirements have been removed from 13 commonly used forms. We are happy to report that these are the forms that no longer require a signature:

• SSA-787 – Medical Source Opinion of Patient’s Capability to Manage Benefits
• SSA-3661 – Transmittal of Title XVI Referral to Designated State Agency
• SSA-L8125-F6 – Supplemental Security Income Notice of Interim Assistance Reimbursement
• SSA-L1103 – Supplemental Security Income Request for Information
• SSA-2010 – Statement for Determining Continuing Entitlement for Special Veterans Benefits (SVB)
• SSA-765 – Response to Notice of Revised Determination
• SSA-789-U4 – Request for Reconsideration – Disability Cessation – Right to Appear
• SSA-3885 – Government Pension Questionnaire
• SSA-3385-BK – Report of Adult Functioning – Employer
• SSA-150 – Modified Benefit Formula Questionnaire
• SSA-4162 – Childcare Dropout Questionnaire
• SSA-7160-F4 – Employment Relationship Questionnaire
• SSA-L4201-BK – Letter to Employer Requesting Wage Information

Please know that SSA is continuing to review their forms and will be removing additional signature requirements in the near future.

For forms where signatures cannot be removed, the agency is rapidly adding e-signature options, allowing SSA/DDS to send the claimant a link to initiate e-sign as well as providing new online e-sign options for more than 30 forms including:  

• SSA-820/821 – Work Activity Reports
• SSA-632 – Request for a Waiver of Overpayment Recovery
• SSA-634 – Request for Change in Overpayment Recovery Rate

We know that many in our community are anxiously awaiting the day when electronically signed SSA-1696s and FAs will be easily accepted by SSA. For now, please know that EM-20022 is still in effect and the retention date will not be an issue. Please follow the instructions in this Emergency Message and report any Field Office acceptance issues to the appropriate Regional Communications Directors. Should problems with specific offices recur after appropriate escalation, please let NOSSCR know so that we can take action. We expect to see the conversion of the EM into a permanent POMS section soon.

We are excited to see that the agency is taking seriously the need for modernization, and we will continue to advocate for improved and simplified access so that your practices and your clients’ lives can run more smoothly.

PAC Contributor List (Copy)

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS

As of September 2024

Update Your Subscriptions (Copy)

While we at NOSSCR always alert you to the latest happenings at SSA, another great way to stay informed is to subscribe to SSA’s “Dear Colleague” letter. You can access the latest letters from SSA here, and you can subscribe to future letters by clicking the small subscribe button in the upper grey ribbon next to the word “Advocates.”

While you’re checking your subscriptions, be sure to click on the “update your preferences” link at the bottom of your Forum email. You will then be emailed a link that will allow you to see which updates you are receiving from NOSSCR. Be sure that you have the boxes checked for “Breaking News” and “NOSSCR Updates” if you want to receive our periodic emails advising you of important changes to SSA’s policies and regulations. If you’re having any technical issues or would like for us to change your preferences for you, please email nosscr@nosscr.org and we’ll be happy to assist.

Daily Dose of Data from SSA (Copy)

Each month, SSA releases comprehensive data about their programs and the populations that their programs serve. Here’s what they released this month:

• Fast Facts & Figures About Social Security, 2024: An annual chartbook that highlights statistics on the most important aspects of the Social Security and Supplemental Security Income programs—the people they serve and the benefits they provide.

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

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

• Recurring Actuarial Note #5: Internal Real Rates of Return Under the OASDI Program for Hypothetical Workers–the 2024 edition of this note introduces adjustments for observed differences in mortality and disability incidence by career earnings levels of workers.

• Estimate of the Financial Effects on the Social Security Trust Funds of the “Social Security Survivor Benefits Equity Act,” introduced on September 25, 2024 by Senator Peter Welch.

Useful Resources (Copy)