August 2023 Print Edition
NOSSCR NEWS – President’s Report
I’m excited to provide several updates on NOSSCR’s activities.
August is NOSSCR’s month for “Circuit Representative” Board director elections, and this year, the only open seat is the one I vacated when I became NOSSCR President—the 11th Circuit. NOSSCR members in Alabama, Florida, and Georgia received emails from our contractor, Simply Voting, inviting them to cast a secure and private online ballot for Pamela Atkins or George Piemonte. Pamela and George both previously served as President, and we are looking forward to having one of them join us. The election ends on August 31, and I will announce the results at the Membership Meeting on Friday, September 1, at 3 p.m. ET. If you’d like a link to register for that meeting, please email nosscr@nosscr.org. We will also update everyone in the next issue of The Forum. The election winner will join our next board meeting in Washington, DC, on September 14.
As you may have seen in an earlier edition of The Forum, NOSSCR’s bylaws have been updated. The most significant recent change is the removal of the Council of Past Presidents. The board decided that the modernization of NOSSCR’s governance process required this update. NOSSCR’s counsel and a past president issued opinions in support of this elimination. We have found that our large board of circuit representatives and at-large directors provides an excellent diversity of opinions. Notably, our board now includes a seat designated for a NextGen NOSSCR member.
Our current bylaws may be found here.
Our former Board member (and President) David Camp moved from Chief Policy Officer to Interim CEO. David has agreed to serve in that role through our next annual conference in May, and we are thrilled to have him working to continue our many upgrades. As you will see in his and the other updates, NOSSCR’s changes continue to impress.
We want your suggestions! NOSSCR needs to select a city for our 2026 Annual Conference. In May 2024, we will be in Nashville and return to Washington, DC, in 2025. Our 2026 Conference city has not yet been selected. Please let us know what you think. Send your thoughts on our city selection to nosscr@nosscr.org. We will compile responses and consider them in our board meeting.
I have said this many times, but it bears repeating. It is a great honor to serve all of you as NOSSCR’s President. I hope you are seeing our upgrades and that you will continue to let us know how we can make your association better.
NOSSCR NEWS – Interim CEO Report
Events
Before I update you on several important changes and upgrades at NOSSCR, I want to detail our packed schedule of events, providing something for everyone.
September 14-17, join me and other NOSSCR board members and staff in Las Vegas! We are collaborating with SSLDR (Social Security Leadership for Disability Representatives) on their business networking event. Many of you are aware that SSLDR provides award recognition to representatives and firms that help clients win—either in terms of helping more of them or with more of a percentage of wins. You’ve seen the pictures on social media and proud award recipients picking up their awards at our conference in May. This new networking event is another activity that NOSSCR strongly encourages—getting together with other practitioners, learning from one another in a casual environment, and having a great time in Las Vegas! The event will be held at the Wynn Resort. As you know, NOSSCR is now more engaged in government affairs, and this event features Nevada Senator Catherine Cortez Masto. There will be discussions on best business practices, artificial intelligence, marketing & TCPA, federal district court, legislative activities, NOSSCR updates, and multiple networking opportunities. For entertainment, don’t miss the performances by Penn & Teller and Bella Electric Strings.
Find out more, and register here.
October 19-21 is our NextGen Retreat at the Sheraton New Orleans. This event is limited to those who have been practicing Social Security law for less than ten years or those under 40. The smaller event size of the NextGen Retreat is the perfect opportunity to build connections, learn about a new topic, ask questions, and find ways to be more involved in NOSSCR. The event offers a slate of activities true to the city’s character, including a dinner riverboat cruise with live jazz music and private dining overlooking Jackson Square. And don’t forget to pack your costume for the New Orleans Halloween parade! The NextGen Retreat also offers 8 hours of CLE, featuring updates from the RCALJ and Dr. Timothy Saar, a psychologist, discussing mental health cases. Other CLE topics include Social Security fundamentals, ethics, federal court, and law firm marketing. Member price for the event is just $75.
Find out more and register here.
October 26-27 is our 8th Circuit Conference in St. Charles, Missouri (near St. Louis) at the Drury Inn & Suites. 8th Circuit practitioners have put together these events many times, but this is the first version where NOSSCR is providing support resources. The CLE content should be better than ever, with insights from medical experts, tips on navigating vocational challenges, and a glimpse into agency operations. Speakers include Meghan Gallo, Michael Downey, Ted Norwood, Wes Kappelman, Dominic Pontello, Kyle Sciolaro, The Honorable Duane Benton of the 8th Circuit Court of Appeals, Brandon Maxwell DC (spine injuries), Jamie Imhoff (former DDS SDM), Andrew Dawson DO and Divya Sivakumar DO (neurological conditions), and Fred Rottnek MD (ethics and wellness).
Find out more and register here.
November 8-9 NOSSCR is hosting a Virtual Conference. Speakers will include Tom Krause (mock hearing), George Piemonte (crossing vocational witnesses), Debora Wagner (VA benefits), Dennis Cummins (ethics), Ron Belluso (hearings), Anthony Craiker (AC briefing), Marissa O’Connor (overpayments), and Maria Bermudez (legal technology).
Find out more and register here.
May 8-11, 2024, is our next Annual Conference, this time at the Omni Nashville Hotel. The hotel itself is an amazing venue adjacent to the Country Music Hall of Fame and Museum and a few blocks from Broadway Street. Our team is already working on our CLE content, side events, and entertainment. If you attended our recent DC conference, you noticed our upgrades. We will build on those and provide a NOSSCR conference that should be our best ever. We are adjusting our CLE track system, enhancing our check-in process, arranging to record our sessions for later online access, and (my favorite) making sure there is enough coffee! Nashville is home to legendary country music venues, live music honky-tonks, and the Johnny Cash Museum. With access to so much music, you can expect us to add that component throughout our conference plans.
Please save the dates, and we will open registration later.
Staffing Changes
NOSSCR is always working to provide our membership with expert service while serving a challenging mission on a limited budget. Our staff work mostly in DC, occasionally remotely, and always as a close-knit team. We’re excited about our recent changes and hope to continue growing. NOSSCR posts job openings in a variety of ways, depending on the position. We occasionally promote from within or recruit from our membership. Often, we rely on staffing services and other resources in the Washington, DC, area. If you are interested in employment with NOSSCR, you should contact me directly at david.camp@nosscr.org. We welcome inquiries regarding all positions, especially from our members.
I moved from the position of Chief Policy Officer to Interim CEO following the departure of Steve Gardner in July. I oversee all aspects of NOSSCR’s work, with particular emphasis on government affairs, agency advocacy, media attention to our mission, development of litigation strategy (stay tuned for more on that), our conferences and events, newsletter, and referral service. When I served on NOSSCR’s board of directors and as President, I focused on moving NOSSCR to Washington, DC, and increasing our membership. Now, NOSSCR continues to modernize and upgrade. These are systems changes, policy updates, and, in some places, converting informal arrangements to contracts. We are attracting new donors and supporters, allowing NOSSCR to carefully engage in an expansion of our advocacy role. I worked for decades advocating for individual claimants. Now, I hope to deliver to you a more relevant and effective association.
Jennifer Cronenberg became our Senior Counsel and Director of Legal Information in July. Previously an attorney with Doherty Cella Keane for almost 14 years, she is a graduate of Ithaca College and received her JD from The Catholic University of America in Washington, DC. She is admitted to practice in Maryland and DC. Jennifer is responsible for conducting NOSSCR’s advocacy work with the Administration, helping shape CLE content and programming, and serving as an expert advisor to NOSSCR members. She is NOSSCR’s primary point of contact for fees and other legal issues where NOSSCR helps members interface with Social Security.
Laura Beth Waller joined NOSSCR’s staff in July as Chief Strategy Officer, giving us three experienced Social Security practitioners on staff. Laura Beth was previously a member of NOSSCR’s Board of Directors, representing the Fourth Circuit and serving on the Executive Committee as Assistant Treasurer. She was instrumental in many aspects of NOSSCR’s recent transition and growth. She led NOSSCR’s NextGen committee, increasing the number of members participating and adding several successful events. She is a frequent presenter on federal court advocacy and regularly attends meetings and social events with members of Congress in Washington, DC. Before taking the role of NOSSCR’s CSO, Laura Beth practiced in district court work at Martin, Jones, and Piemonte. She earned her J.D. at NCCU School of Law and her LL.M. in taxation at the University of Washington. She is admitted to practice in North Carolina, Washington, and Georgia.
Code of Conduct
You will notice that registration for NOSSCR events now always includes a link to our updated code of conduct. Please be sure to review it and let me know if you have concerns. The terms bind all registrants and attendees of NOSSCR conferences, outlining our refund policy and how NOSSCR uses any data it collects.
Terms and Conditions for Speakers, Exhibitors, and Sponsors
NOSSCR now requires all speakers, exhibitors, and sponsors to agree to terms and conditions in writing.
NOSSCR positions itself as the nation’s top provider of CLE in Social Security law and related areas. To do that, we partner with experienced speakers. Doing this effectively requires understanding NOSSCR’s audience and their needs, and we appreciate the value our speakers bring to our programs. NOSSCR’s selection of a speaker involves both the promotion of NOSSCR and the promotion of the speaker, but the selection of a speaker must be consistent with NOSSCR’s mission to serve NOSSCR’s members, claimants before the Social Security Administration, and the wider community of disability advocacy. We are upgrading the experience of receiving CLE credits from NOSSCR, and this requires that we have speakers who adhere to deadlines and materials criteria imposed on us by various states. Together, we will make obtaining CLE from NOSSCR a preferred option—in terms of content and the attendee’s ease of reporting.
Exhibitors and sponsors are our partners, and they often make the difference between success and failure for our events. As with speakers, exhibitors and sponsors enhance the value of NOSSCR membership. NOSSCR reserves the right to select exhibitors and sponsors according to NOSSCR’s operating and financial decisions, the experience of our attendees, and NOSSCR’s image and mission. We are grateful to NOSSCR’s many exhibitors and sponsors who have made our association what it is today and look forward to continuing relationships. In the coming months, I expect to present formal royalties and other agreements to NOSSCR’s board of directors, securing our finances with a transparent process open to those who can satisfy our terms consistent with our mission.
If you would like to see a copy of our current terms and conditions for speakers, exhibitors, or sponsors, please contact us at nosscr@nosscr.org.
NOSSCR NEWS – Chief Strategy Officer Report
Operational Upgrades
NOSSCR is pleased to announce its implementation of a new association management system. This upgrade will help us better serve our members in several ways. First, the new system will include more robust information about our members to help us provide events, products, and services that meet members’ needs and enhance their practices. With a better understanding of our members, we can engage them for legislative and political advocacy, help those in adjacent practice areas more easily connect, and streamline the renewal process for businesses with more than one practitioner. Our new backend payment system will simplify renewing memberships, registering for events, subscribing to services, and purchasing CLE content.
As part of this upgrade, you will be asked to update your data and may be prompted to renew if your membership lapsed.
New Listservs
This month, NOSSCR introduced three new listservs—NOSSCR Martin (all members), Legal Services/Nonprofit, and NextGen. Last year, NOSSCR took over management of the old SSL Martin list. The dated platform on which the old list operated made it increasingly difficult to keep emails out of spam filters, add or remove participants, and moderate posts that marketed for or against products, disparaged others, or risked liability. As part of NOSSCR’s new association management system rollout, NOSSCR launched its beta-testing version of “Communities.” After hearing members’ feedback, we upgraded our Communities to the familiar email-based format of listservs. We will continue to enhance the member experience and options in the coming months. The general NOSSCR Martin listserv is open to all NOSSCR members (there are no SSA employees in NOSSCR’s membership, and therefore none participating in the listservs), the Legal Services/Nonprofit listserv is intended for those NOSSCR members who qualify for our discounted nonprofit member rate, and the NextGen listserv is intended for those NOSSCR members who have been practicing Social Security law for less than ten years or are under the age of 40. We plan to add more listservs in the future.
We are thrilled to report that these new listservs are already used by many more individuals than the prior versions, welcoming several hundred new participants to another benefit of NOSSCR membership.
The terms and conditions of the listservs can be found by clicking the footer in any email or under the Communities tab on NOSSCR’s website. The answers to frequently asked questions can also be found under the Communities tab on NOSSCR’s website, which explains how to receive a digest version of the daily emails or set up rules for your inbox and answers other questions raised by members during this transition.
Referral Service Changes
NOSSCR has revised the rules for participating in the Referral Service, and we will notify members of these changes within the next few weeks. Paid registrants will be given a new opportunity to make a purchase.
NOSSCR’s referral service number is published on a notice sent to unrepresented claimants who have requested a hearing before an ALJ. When a claimant calls that number, they are routed to a participating NOSSCR member based on the claimant’s area code and the NOSSCR member’s selection of that area code from which to receive calls.
As a member benefit, every lawyer member who satisfies certain conditions is entitled to one free area code of their choice. If members wish to purchase additional area codes, they can select from one of three tiers—local, regional, or national. Local includes up to five area codes, regional includes up to 25 area codes, and national includes all 336 area codes. Sustaining members receive a 10% discount.
Members can subscribe to the Referral Service by selecting their participation tier and the area codes from which they want to receive calls. We also need the member’s preferred phone number for receiving incoming Referral Service calls and an email address.
Participation in the Referral Service is an annual subscription, billed monthly. The updated registrations and purchases will be launched as part of our upcoming systems upgrade, allowing for a smooth transaction using NOSSCR’s website. You will receive notice and an invitation in the coming weeks. After that, you can expect us to continue working on operational updates for the system—including providing members with more information about the calls that have been sent through.
Complete Referral Service rules can be found here.
Calendar Year Membership Renewals
NOSSCR is updating its membership renewal structure. Currently, renewal dates are based on a member’s joining anniversary. As a result, renewals occur unevenly throughout the year, reducing operational efficiency and options for membership renewal drives.
Effective September 1, 2023, the preferred renewal date will be October 1. We hope you will help us move your renewal date to October 1 by taking advantage of our current membership rates and a 5% discount for renewing for more than 12 months to bring your membership renewal date to October 1. If you choose to do so—and we hope you will—the renewal amount will automatically be prorated, and the discount will be applied.
Beginning in 2024, NOSSCR will launch an annual membership drive to renew existing memberships and attract new members.
Complete membership renewal rules can be found here.
Barcode Submission Issue and Fix
SSA has identified a snag in the uploading of evidence, whereby the use of certain barcodes results in the evidence being incorrectly placed in an “orphaned documents” folder instead of properly associated with the claimant’s file.
The impacted barcodes will have both of the following:
- RQID that starts with DCPS
- Barcode date of 08/05/23 or earlier
Please review your barcodes carefully. If applicable, the DCPS identifier will appear directly after “RQID.” The next 6 digits after DCPS represent the date the barcode was generated. Anything that reads 080523 or earlier in time is impacted. The example below is illustrative, but please note this example barcode is NOT impacted because it is dated after 080523:
When these barcodes will cause a problem:
- Anytime you use a barcode to submit evidence via fax
- Anytime you use “Send Individual Response” under the “Evidence Functions” on the ARS
When these barcodes will NOT cause a problem:
- When you upload evidence directly via the claimant’s E-folder on the ARS
How to fix the problem:
- Upload evidence directly via the claimant’s E-folder on ARS without the need for a barcode (SSA’s preferred method)
- Call SSA to request a new barcode. They have fixed the issue going forward, so any barcode dated after 08/05/23 is not impacted.
Here’s how to avoid using the barcode while successfully uploading evidence within ARS:
Please reach out to us at nosscr@nosscr.org if you have any questions or require further guidance.
What’s Happening in the 7th Circuit – July 2023 Edition
The Court decided six Social Security cases in July, one of which produced a remand.
A quick note about recent appointments. Judge Pryor, who has been serving as a circuit judge since December, was on panels this month in Griffin, Baptist, Ramos, and Equitz, all of which were affirmed. Judge Pryor was on a panel that remanded a Social Security case in March but has affirmed in each case since. Judge Lee, who is also a recent addition to the Seventh Circuit bench, was on the panel remanding Greer this month but has otherwise affirmed each Social Security case during his tenure.
I mentioned in a previous column that our circuit has one vacancy due to Judge Kanne’s death in June 2022. There is news on this front. U.S. Magistrate Judge Joshua P. Kolar, currently sitting in the Northern District of Indiana, was nominated by President Biden in July to fill Judge Kanne’s seat.
Without further ado, here are July’s Seventh Circuit cases:
Greer v. Kijakazi (remanded, unpublished)
Judges Brennan, St. Eve, and Lee
July 14, 2023
Greer contested an ALJ’s decision that she could return to her past work based on a consulting doctor’s opinion. New evidence from a podiatrist showed diminished lower extremity strength, and Greer’s preexisting impairments included diabetic neuropathy. The consulting doctor did not review this evidence, and the ALJ did not comment on it. The Commissioner argued that Greer did not meet her burden of proof because every medical opinion aligned with the ALJ’s RFC, but Greer’s burden “was to produce medical evidence, not an opinion.”
The Court emphasized that on remand “the ALJ need not conduct another full hearing or reopen the record except insofar as it is necessary to ensure a proper review of” the new evidence, and submit any “significant, new, and potentially decisive findings” to expert scrutiny.
Cromwell v. Kijakazi (affirmed, published)
Judges Easterbrook, Rovner, and Lee
July 7, 2023
Cromwell challenged whether an ALJ’s decision was supported by substantial evidence and whether her bipolar disorder was inadequately considered where it was not identified at Step Two. The case involved prior remand history, 184 exhibits, and 17 medical opinions. The Court deferred to the ALJ’s “very thorough” and “meticulous” citation of evidence and the weight he accorded the opinions. The ALJ’s recitation was not exhaustive, but “he was not required to list everything he considered.” The Court also allowed the ALJ to use Cromwell’s part-time babysitting “in his big-picture evaluation of her capabilities,” as well as her ability to care for her own children. And while the Court “might come to different judgments about whether spending hours on idle tasks on Facebook accurately reflects on one’s ability to concentrate on productive tasks in the economy,” it deferred to the ALJ’s adverse conclusion.
Griffin v. Kijakazi (affirmed, unpublished)
Judges Easterbrook, Scudder, and Pryor
July 7, 2023
Griffin was involved in three car accidents and suffered from spine impairments, headaches, and mental health limitations. In assessing an RFC, the ALJ evaluated opinion evidence based on its consistency with the record and properly rejected some as too vague or reliant on subjective reports that conflicted with objective evidence. Griffin “did not pursue continuous care” for her claims of disabling pain, did not allege daily headaches during pain management consultations, and said physical therapy reduced the severity and frequency of headaches. Some exam findings were normal and others abnormal. The ALJ was not “patently wrong” to reject Griffin’s subjective statements. And the ALJ gave reasonable explanations for rejecting Griffin’s treating doctor’s opinions. Griffin did not allege which additional limitations would be appropriate based on other opinion evidence that the ALJ did not accept in full.
Baptist v. Kijakazi (affirmed, published)
Judges Hamilton, Kirsch, and Pryor
July 14, 2023
Baptist was involved in a car accident with residual back and neck injuries, headaches, and a history of aneurysms. She argued that the ALJ who denied her disability claims “played doctor” by interpreting new imaging and aneurysm surgery notes and improperly rejected treating source opinions.
Regarding the new evidence, Baptist’s treatment notes showed that it would not have altered the State agency consultants’ findings. She made a full recovery without ongoing symptoms and notes about new imaging—written in layperson’s terms and not “the ‘medical mumbo jumbo’ [the Court has] warned judges not to interpret”—did not reflect additional problems. There was “evidence of mild changes” in imaging, but it was reviewed by Baptist’s physician and “unaccompanied by any new symptoms, limitations, or treatment recommendations.”
As for the treating source opinions, a treatment note stated they were based on Baptist’s subjective reports, one provider suspected she was malingering, and normal exam findings and “conservative treatment” were inconsistent with the opined limitations.
Ramos v. Kijakazi (affirmed, unpublished)
Judges Easterbrook, Wood, and Pryor
July 17, 2023
Ramos, diagnosed with various mental health impairments, was denied benefits by an ALJ based on medical expert testimony. Ramos argued that the expert over-relied on his cognitive functioning, but the Court declined to “reweigh evidence,” stating that “[b]ecause [the expert’s] opinion accounted for the full extent of Ramos’s mental impairment evidence, Ramos’s challenge to the completeness or persuasiveness of that opinion falls short.” While the ALJ did not mention all evidence, relying on an expert who considered the evidence was sufficient. And even if the ALJ did not clearly connect the RFC limitations to Ramos’ impairments, Ramos did not hypothesize more appropriate restrictions and, per the Court, “the record could have supported fewer limitations” so any error was in Ramos’ favor.
The final issue was a “close question.” The ALJ assessed that Ramos could tolerate normal supervisory interactions, but also limited him to occasional, superficial interactions. The Court held that the substantial evidence standard resolved the question because the vocational expert cited jobs “that required only minimal supervision.”
The Court concluded that Ramos “is free to try his luck with a new application” based on newer evidence.
Equitz v. Kijakazi (affirmed, unpublished)
Judges Easterbrook, Scudder, and Pryor
July 20, 2023
An ALJ rejected Equitz’ claims that he could not return to his past job as a truck driver based on a lack of imaging of his degenerative disc and joint disease, normal exams, and medication refusal. On appeal, Equitz argued that the ALJ should have inquired into the absence of imaging or more aggressive treatment, explaining that he is wary of radiation and potential side effects. But Equitz, who was represented, did not mention these aversions to the ALJ and “has not shown these to be legitimate fears nor established that they excuse him from submitting objective medical evidence.” Equitz declined a consultative physician’s recommendation of x-ray testing, forwent a psychological evaluation, and submitted no medical evidence or opinions to contradict the State agency reviewing physicians’ opinions.
While Equitz claimed some medical records were missing from the record, he was represented and did not provide a reason to disregard the presumption that he put forth his best case with counsel’s assistance. Though Equitz argued that his counsel was ineffective, there is no constitutional right to counsel in Social Security proceedings.
Thanks for reading!
Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL
PIEMONTE’S PERSPECTIVE: Obesity and “Accommodations”
Often, ALJs will limit a morbidly obese claimant to sedentary jobs. You may be thinking, “Yeah, so what George? What’s wrong with that?”
The problem is that per BIFMA the standard office chair is tested to 275 pounds. So, a special chair is needed for a worker weighing 275 pounds or more. Modifying a job to enable a person with a disability to perform it, such as providing a special chair, is an ADA accommodation, and SSA cannot consider it. See SSR 11-2p § II(D)(1)(e)
“When we determine whether a person can do other work that exists in significant numbers in the national economy, we do not consider whether he or she could do so with accommodations, even if an employer would be required to provide reasonable accommodations under the Americans with Disabilities Act of 1990.”
So, how would you deal with a limitation to sedentary jobs for a claimant who weigh over 275 pounds?
Ask the VE (or tell if they don’t know) if they aware that, per the CDC, the average weight of an adult male in the US is 197.9 pounds and the average weight of an adult female in the US is 170.6 pounds.
Ask, “What is the maximum weight a standard office chair must support without damage?” (If VE disputes, demand the precise source be provided, and a supplemental hearing if needed.)
Ask the VE, “Wouldn’t you agree that businesses don’t provide chairs for the maximum possible weight due to the great expense of bariatric chairs?”
And then finally ask, “Wouldn’t you agree that a bariatric chair is an ADA accommodation?”
You will also want to ask the VE to describe how the sedentary job(s) is/are actually performed.
And then ask, can’t morbid obesity interfere with the ability to reach a desk or workbench? Depending on the job, changing or rearranging the desk/workbench may be an ADA accommodation. (Remember the word “accommodate” and the concept of “accommodation” should only be used in the narrow technical ADA context.)
If necessary, post-hearing, get pictures of the work area(s) (as my wife says, Google is a wonderful thing), submit those as rebuttal evidence, and request a supplemental hearing.
For the morbidly obese even sedentary jobs can be impossible to perform. You want to make that clear in cross-examination.
Senate Finance Committee Requests More Information on Simplified SSI Application
On August 8, 2023, NOSSCR notified members of SSA’s plan to create “a fully online, simplified SSI application process.” The same day, Senate Finance Committee Chair Ron Wyden and Committee Members Bob Casey and Sherrod Brown requested more information from Acting Commissioner Kijakazi on SSA’s plan. The Acting Commissioner has 90 days to respond. NOSSCR shares the Senators’ concerns and will monitor these issues in our ongoing work to reduce barriers for our members’ most vulnerable claimants.
NOSSCR continues to welcome your comments and concerns regarding SSA’s proposed iSSI process and encourages you to email us at nosscr@nosscr.org as we prepare our own analysis and comments. The official comment period with SSA closes on October 10, 2023.
LEGISLATIVE UPDATE: The Public Servants Protection and Fairness Act of 2023
On June 21, 2023, Congressman Richard Neal (D-MA), Ranking Member of the House Ways and Means Committee, reintroduced H.R. 4260, the Public Servants Protection and Fairness Act of 2023. H.R. 4260 has 98 cosponsors, all Democrats. A companion to this bill has not yet been introduced in the Senate.
If enacted, this legislation would replace the windfall elimination provision (WEP) with an alternate formula to calculate Social Security retirement benefits for those who receive pensions from select non-covered employment. This alternative formula would adjust an individual’s lifetime total earnings based on a proportion of covered earnings. Further, H.R. 4260 would allow current WEP retirees to receive $150 in relief payments each month.
Bill Details
SECTION 1. SHORT TITLE.
This Act may be cited as the “Public Servants Protection and Fairness Act of 2023”.
SEC. 2. ALTERNATIVE FORMULA EQUALIZING BENEFITS FOR CERTAIN INDIVIDUALS WITH NONCOVERED EMPLOYMENT.
(a) In General.—Section 215(a) of the Social Security Act (42 U.S.C. 415(a)) is amended by inserting after paragraph (7) the following:
“(8) (A) In the case of an individual whose primary insurance amount would be computed under paragraph (1) of this subsection—
“(i) who first becomes eligible for an old-age or disability insurance benefit after 2024 and who subsequently becomes entitled to such benefit;
“(ii) who has earnings derived from noncovered service performed in a year after 1977 and is entitled to a monthly periodic payment based on such earnings; and
“(iii) who has less than 30 years of coverage (as defined for purposes of paragraph (7)(D)),
the primary insurance amount of such individual shall be the higher of the amount computed or recomputed under paragraph (7) without regard to this paragraph or the amount computed or recomputed under this paragraph.
“(B) The primary insurance amount of an individual described in subparagraph (A), as computed or recomputed under this paragraph, shall be the product derived by multiplying—
“(i) the individual’s primary insurance amount, as determined under paragraph (1) of this subsection and subparagraph (C) of this paragraph, by
“(ii) a fraction—
“(I) the numerator of which is the individual’s average indexed monthly earnings (determined without regard to subparagraph (C)), and
“(II) the denominator of which is an amount equal to the individual’s average indexed monthly earnings (as determined under subparagraph (C)),
rounded, if not a multiple of $0.10, to the next lower multiple of $0.10.
“(C) (i) For purposes of determining an individual’s primary insurance amount and average indexed monthly earnings pursuant to clauses (i) and (ii)(II) of subparagraph (B), the individual’s average indexed monthly earnings shall be determined by treating all recorded noncovered earnings (as defined in clause (ii)(I)) derived by the individual from noncovered service performed in each year after 1977 as ‘wages’ (as defined in section 209 for purposes of this title), which shall be treated as included in the individual’s adjusted total covered earnings (as defined in clause (ii)(II)) for such calendar year together with amounts consisting of ‘wages’ (as so defined without regard to this subparagraph) paid during such calendar year and self-employment income (as defined in section 211(b)) for taxable years ending with or during such calendar year.
“(ii) For purposes of this subparagraph:
“(I) The term ‘recorded noncovered earnings’ means earnings derived from noncovered service (other than noncovered service as a member of a uniformed service (as defined in section 210(m))) for which satisfactory evidence is determined by the Commissioner to be available in the records of the Commissioner.
“(II) The term ‘adjusted total covered earnings’ means, in connection with an individual for any calendar year, the sum of the wages paid to the individual during such calendar year (as adjusted under subsection (b)(3)) plus the self-employment income derived by the individual during any taxable year ending with or during such calendar year (as adjusted under subsection (b)(3)).
“(iii) The Commissioner of Social Security shall provide by regulation or other public guidance for methods for determining whether satisfactory evidence is available in the records of the Commissioner for earnings for noncovered service (other than noncovered service as a member of a uniformed service (as defined in section 210(m))) to be treated as recorded noncovered earnings. Such methods shall provide for reliance on earnings information provided to the Commissioner by employers and which, as determined by the Commissioner, constitute a reasonable basis for treatment of earnings for noncovered service as recorded noncovered earnings. In making determinations under this clause, the Commissioner shall also take into account any documentary or other evidence of earnings derived from noncovered service by an individual which is provided by the individual to the Commissioner and which the Commissioner considers appropriate as a reasonable basis for treatment of such earnings as recorded noncovered earnings.
“(iv) In the case of any individual who, at the time of application for old-age or disability insurance benefits under this title, has recorded noncovered earnings in an amount the Commissioner of Social Security determines may entitle the individual to a monthly periodic payment based on such earnings (but whose application does not report such a monthly periodic payment), the Commissioner shall reconfirm with the individual whether such a monthly periodic payment is being paid in order to ensure the proper application of paragraph (7) and this paragraph.
“(D) Upon the death of an individual whose primary insurance amount is computed or recomputed under this paragraph, such primary insurance amount shall be computed or recomputed under paragraph (1) of this subsection.
“(E) In the case of any individual whose primary insurance amount would be computed under this paragraph who first becomes entitled after 1985 to a monthly periodic payment made by a foreign employer or foreign country that is based in whole or in part upon noncovered service, the primary insurance amount of such individual shall be computed or recomputed under paragraph (7) or paragraph (1), as applicable, for months beginning with the first month of the individual’s initial entitlement to such monthly periodic payment.”.
(b) Conforming Amendments.—Section 215(a)(7)(A) of such Act (42 U.S.C. 415(a)(7)(A)) is amended—
(1) by striking “hereafter in this paragraph and in subsection (d)(3)” and inserting “in this paragraph, paragraph (8), and subsection (d)(3)”; and
(2) by striking “shall be computed or recomputed” and inserting “shall, subject to paragraph (8), be computed or recomputed”.
(c) Effective Date.—The amendments made by this section shall apply with respect to monthly insurance benefits payable on or after January 1, 2025.
SEC. 3. ADDITIONAL MONTHLY PAYMENT FOR CERTAIN INDIVIDUALS WHOSE BENEFIT AMOUNT IS REDUCED BY THE WINDFALL ELIMINATION PROVISION.
(a) In General.—Section 215(a) of such Act (42 U.S.C. 415(a)), as amended by section 2(a), is further amended by adding at the end the following:
“(9) (A) For any month beginning at least 270 days after the date of the enactment of the Public Servants Protection and Fairness Act of 2023, the Commissioner of Social Security shall, subject to subparagraphs (D) and (E), make an additional monthly payment to each individual who is an eligible individual for such month, in an amount equal to the amount determined under subparagraph (C) with respect to such eligible individual.
“(B) For purposes of this paragraph, the term ‘eligible individual’ for a month means an individual (other than an individual described in paragraph (8)(E)) who—
“(i) first becomes eligible for an old-age or disability insurance benefit under this title before 2025; and
“(ii) is entitled to an old-age or disability insurance benefit under this title for such month based on a primary insurance amount that was computed or recomputed under paragraph (7) (and not subsequently recomputed under any other paragraph of this subsection).
For purposes of clause (i), an individual shall be deemed eligible for a benefit for a month if, upon filing application therefor in such month, the individual would be entitled to such benefit for such month. For purposes of clause (ii), an individual shall be deemed entitled to a benefit based on a primary insurance amount that was computed or recomputed under paragraph (7) if such benefit would be based on such a primary insurance amount but for the application of paragraph (1)(C).
“(C) (i) The amount determined under this paragraph with respect to an eligible individual is $150, except that in any case in which the amount by which the primary insurance amount of such eligible individual that would be computed for the individual’s initial computation month under this subsection without regard to paragraph (7) exceeds the primary insurance amount of such eligible individual computed for such month under this subsection (taking paragraph (7) into account) is less than $150, the amount determined under this paragraph shall equal the amount of such excess.
“(ii) For purposes of this subparagraph, the term ‘initial computation month’ means, with respect to an individual, the later of—
“(I) the 1st month beginning at least 270 days after the date of the enactment of the Public Servants Protection and Fairness Act of 2023; or
“(II) the 1st month for which the individual’s primary insurance amount is computed or recomputed under paragraph (7).
“(D) In any case in which this title provides that no monthly benefit under section 202 or 223 shall be paid to an individual for a month, no additional monthly payment shall be paid to the individual for such month. This subparagraph shall not apply in the case of an individual whose monthly benefit under section 202 or 223 is reduced, regardless of the amount of the reduction, based on—
“(i) the individual’s receipt of other income or benefits for such month; or
“(ii) the adjustment or recovery of an overpayment under section 204.
“(E) Except for purposes of adjustment or recovery of an overpayment under section 204, an additional monthly payment under this paragraph shall not be subject to any reduction or deduction under this title.
“(F) Whenever benefit amounts under this title are increased by any percentage effective with any month as a result of a determination made under subsection (i), each additional monthly payment amount payable to an eligible individual under this paragraph shall be increased by the same percentage for months beginning with such month.
“(G) The amount of any additional monthly payment under this paragraph shall be disregarded for purposes of determining the eligibility or benefit amount of an individual for supplemental security income benefits payable under title XVI of the Social Security Act, but only if such individual—
“(i) is eligible for a cash benefit payable under section 1611, section 1619(a), or section 1631(a)(7) for the 1st month beginning at least 270 days after the date of the enactment of the Public Servants Protection and Fairness Act of 2023;
“(ii) is an individual described in section 1619(b) for such month; or
“(iii) is eligible for a State supplementary payment for such month of the type referred to in section 1616(a) (or payments of the type described in section 212(a) of Public Law 93–66) which are paid by the Commissioner under an agreement referred to in section 1616(a) (or section 212(a) of Public Law 93–66).”.
(b) Effective Date.—The amendments made by this section shall apply with respect to monthly insurance benefits payable for months beginning at least 270 days after the date of the enactment of this Act.
SEC. 4. IMPROVEMENT IN SOCIAL SECURITY ACCOUNT STATEMENTS FOR PUBLIC SERVANTS.
(a) In General.—Section 1143(a) of the Social Security Act (42 U.S.C. 1320b–13(a)) is amended—
(1) in paragraph (2)—
(A) by redesignating subparagraphs (B) through (E) as subparagraphs (C) through (F);
(B) by inserting after subparagraph (A) the following:
“(B) the amount of earnings derived by the eligible individual from service performed after 1977 which did not constitute employment (as defined in section 210), not including service as a member of a uniformed service (as defined in section 210(m)), as shown by the records of the Commissioner at the date of the request;”; and
(C) in subparagraph (E) (as redesignated by subparagraph (A)), by inserting “(in the case of an eligible individual described in paragraph (3)(C)(ii), calculated using a primary insurance amount estimated pursuant to paragraph (8) of section 215(a) and including a notation indicating the use of such method of calculation)” after “account”; and
(2) in paragraph (3)(C)(ii)—
(A) by striking “wages or self-employment income” and inserting “wages, self-employment income, and earnings derived from noncovered service (within the meaning of section 215(a)(7))”; and
(B) by striking “of noncovered employment” and inserting “that the individual’s primary insurance amount will be computed under paragraph (7) or (8) of section 215(a)”.
(b) Conforming Amendments.—Section 1143 of the Social Security Act (42 U.S.C. 1320b–13) is amended—
(1) in subsection (a)(2)(F) (as redesignated by subsection (a)(1)(A) of this section), by striking “sections 202(k)(5) and 215(a)(7)” and all that follows through “auxiliary benefits” and inserting “sections 202(k)(5), 215(a)(7), and 215(a)(8)”; and
(2) in subsection (d)(1)—
(A) by striking “maximum”; and
(B) by striking “section 215(a)(7)” and inserting “sections 215(a)(7) and 215(a)(8)”.
(c) Effective Date.—The amendments made by this section shall apply with respect to Social Security account statements issued on or after January 1, 2025.
SEC. 5. STUDY ON AVAILABILITY OF INFORMATION RELATING TO RETIREMENT PLANS.
(a) In General.—The Comptroller General shall conduct a study to determine the extent to which State and local governments (or their designees) that maintain retirement plans for their employees possess or otherwise have access to information sufficient to determine what amount of a participant’s benefits under such plan are based on noncovered service (within the meaning of section 215(a)(7) of the Social Security Act (42 U.S.C. 415(a)(7))).
(b) Report.—Not later than 2 years after the date of the enactment of this Act, the Comptroller General shall submit a report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate on the results of the study described in subsection (a).
SEC. 6. HOLD HARMLESS FOR THE SOCIAL SECURITY TRUST FUNDS.
There are appropriated, out of any moneys in the Treasury not otherwise appropriated, to each of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund for each fiscal year such amounts as the chief actuary of the Social Security Administration shall certify are necessary to place each such Trust Fund in the same position at the end of such fiscal year as it would have been in if the amendments made by this Act had not been enacted.
Inspector General’s Report on Administrative Law Judges
On August 11, 2023, the Inspector General produced a report analyzing trends in ALJ decisions between 2018 and 2022. The report shows that the total number of decisions is down by nearly half between 2018 and 2022. The report also reveals that there are 25 percent fewer ALJs in 2022 than in 2018. Comparing allowances and denials shows a slight uptick in allowances and a slight downtick in denials. This data suggests that widespread telephonic and Teams hearings have not significantly impacted award rates, and NOSSCR continues to advocate that all hearing modalities remain widely accessible.
DEAR COLLEAGUE: Faxed Applications No Longer Being Accepted
On August 22, SSA issued the following “Dear Colleague Letter” entitled “Faxed Applications No Longer Being Accepted.”
Faxed Applications No Longer Being Accepted
Date: August 22, 2023
Dear Colleague,
During the COVID-19 pandemic, we temporarily accepted faxed applications as valid signed applications to expedite the application process. Since the Public Health Emergency ended on May 11, 2023, please note that we are longer accepting faxed applications as valid.
Applications must meet the following criteria to be considered valid:
- On an agency-prescribed form;
- Signed beneath the penalty clause by a proper applicant;
- Filed with SSA; and
- The claimant must be alive when the application is filed unless:
- Before death, there was a written statement of intent to claim benefits.
- Before death, a Supplemental Security Income (SSI) oral inquiry was received.
- Within 3 months after the month of death, a title II disability application is filed.
You may find more information on valid applications here.
Please share this information with your members, colleagues, affiliates, and other interested parties.
Sincerely,
Dawn Bystry
Deputy Associate Commissioner
Office of Strategic and Digital Communications
oea.net.post@ssa.gov
@SSAOutreach
SSA Announces 12 New Compassionate Allowances
SSA has announced 12 new Compassionate Allowances conditions.
The Compassionate Allowances program quickly identifies claims where the applicant’s medical condition or disease clearly meets Social Security’s statutory standard for disability. Due to the severe nature of many of these conditions, these claims are often allowed based on medical confirmation of the diagnosis alone.
See SSA’s press release below for more information.
Social Security Administration Expedites Decisions for People with Severe Disabilities
Agency Adds to its Compassionate Allowances List
Kilolo Kijakazi, Acting Commissioner of Social Security, today announced 12 new Compassionate Allowances conditions: 1p36 Deletion Syndrome, Anaplastic Ependymoma, Calciphylaxis, Cholangiocarcinoma, FOXG1 Syndrome, Leber Congenital Amaurosis, Metastatic Endometrial Adenocarcinoma, Paraneoplastic Cerebellar Degeneration, Pineoblastoma – Childhood, Primary Omental Cancer, Sarcomatoid Carcinoma of the Lung – Stages II-IV, and Trisomy 9.
The Compassionate Allowances program quickly identifies claims where the applicant’s medical condition or disease clearly meets Social Security’s statutory standard for disability. Due to the severe nature of many of these conditions, these claims are often allowed based on medical confirmation of the diagnosis alone. To date, nearly 900,000 people with severe disabilities have been approved through this accelerated, policy-compliant disability process, which now includes a total of 278 conditions.
“The Social Security Administration remains committed to reducing barriers and ensuring people who are eligible for benefits receive them,” said Acting Commissioner Kijakazi. “Our Compassionate Allowances program allows us to reinforce that commitment by expediting the disability application process for people with the most severe disabilities.”
When a person applies for disability benefits, Social Security must obtain medical records in order to make an accurate determination. The agency incorporates leading technology to identify potential Compassionate Allowances cases and make quick decisions. Social Security’s Health IT brings the speed and efficiency of electronic medical records to the disability determination process. With electronic records transmission, Social Security can quickly obtain a claimant’s medical information, review it, and make a faster determination.
For more information about the program, including a list of all Compassionate Allowances conditions, please visit www.ssa.gov/compassionateallowances.
To learn more about Social Security’s Health IT program, please visit www.ssa.gov/hit.
People may apply online for disability benefits by visiting www.ssa.gov.
To create a my Social Security account, please visit www.ssa.gov/myaccount.
Federal Register Update
Social Security has released a new online version of Form SSA-3288-OP1, the Consent for Release of Information to Third Parties form. Completion of this form allows Social Security to release, to a designated third-party, certain information like the claimant’s award or denial status, monthly benefit amounts, and medical records. Claimants can complete the new online version of the form here. While additional electronic access laudable, it should be noted that access to this form requires a mySSA account with the Add Extra Security feature completed (which requires verification via a mailed certification code). In the alternative, Social Security will continue to accept the paper version of the form at local offices.