Update on the 118th Congress

The 118^th Congress is off to a bumpy start. The protracted Speaker election highlighted the division in the House, not just between the Republicans and Democrats, but within the Republican caucus as well. Having been waylaid by the delay in choosing a leader, the House has been slow to seat committees and go about its work. Meanwhile, the Senate, in which Democrats maintain a thin majority (51, with 48 Democrats and 3 Independents, to 49 Republicans) voted only three times in January. From the outset, it appears that this disjointed Congress may face challenges in advancing substantive legislation or even completing basic tasks, such as organizing itself.

Already, a potential showdown over the debt limit is looming, with Republicans signaling they may fight for spending cuts in exchange for their support in increasing the government’s borrowing authority. President Biden and Congressional Democrats, however, have said that they are not willing to negotiate around this issue, setting up a potential battle for June, when “extraordinary measures” to prevent the nation from defaulting on its loan obligations are expected to be exhausted.

Legislation to raise the debt limit is a must-pass for Congress, and failing to act could result in a downgrading of the U.S. credit rating and unprecedented negative consequences for the global economy. Because it has never happened before, no one knows exactly what will happen to Social Security payments if Congress fails to act before the U.S. debt reaches the current limit.

Historically, Republicans have advocated for restructuring the Social Security program, and a recent article in The Washington Post noted that GOP leaders and some Democrats have advocated for the creation of commissions, such as those suggested in the TRUST Act introduced by Senator Romney in the 117^th Congress, to examine ways to reform the program.

Some worry these panels could recommend changes that would result in benefit reductions down the line and that deals made by any commission would be fast-tracked to passage with no opportunity to amend the proposals.

In a noteworthy moment from the State of the Union address, President Biden reaffirmed his commitment to preserving Social Security while simultaneously putting Republicans on the spot to affirm their commitment to the same in a very public forum. In this divided political atmosphere, NOSSCR’s Washington team must continue to work hard to educate Members of Congress and staff about Social Security and our legislative priorities.

Key to NOSSCR’s strategy is the ability to forge relationships with Members of Congress who are new to the Social Security Subcommittee of the House Ways and Means Committee, as well as strengthening the relationships that already exist.

The new Chairman of the Social Security Subcommittee is Congressman Drew Ferguson (R-GA). Ferguson, a dentist, defeated a Tea Party candidate in his 2016 election and is considered an ally of the Republican leadership.

The other Republicans on the subcommittee are as follows: Congressman Mike Carey (R-OH), Congressman David Schweikert (R-AZ), Congressman Ron Estes (R-KS), Congressman Blake Moore (R-UT), Congressman Randy Feenstra (R-IA), Congressman Greg Steube (R-FL), and Congressman David Kustoff (R-TN).

The Democrats on the committee are led by Congressman John Larson (D-CT).

The following Members of Congress join him on the Democratic side of the Social Security Subcommittee: Congressman Bill Pascrell (D-NJ), Congresswoman Linda Sanchez (D-CA), Congressman Brian Higgins (D-NY), and Congressman Dan Kildee (D-MI).

NOSSCR News

National Conference

This year’s conference is shaping up to be one of the best conferences that NOSSCR has offered. Besides being located in downtown DC and offering great CLE content, we’ve added some exciting new events to our usual format.

We’re working to secure elected officials to speak. That’s always a challenge given their schedules and we will announce those speakers closer to the conference dates.

There will be a closing evening reception (Friday May 5, location tbd). There will be food and live music. It will be an event not to be missed. If you are a member of NextGen, we will see you at Tiki TNT and Rum Distillery down on the beautiful DC Wharf.

Our two main sponsors have incredible offerings this year. Insurance Branch will have baristas with coffee stations and lounges with device charging handy for members and Assure is raffling off a vintage muscle car (all attendees are eligible and there is no fee).

We will also be having an open house at NOSSCR’s new offices, a short walk from the hotel. Please stop by to see our new space and have some refreshments.

In past years, NOSSCR was not always able to alert attendees to the specifics of CLE credit for each presentation at the conference. Often the CLE approval for some states would happen after the conference. This year we’re working to have all the information about CLE available at the conference so you know whether the session you’re attending will satisfy your state’s CLE requirements.

New NOSSCR Staff Member, Tod Didier

NOSSCR welcomes Tod Didier as its new Senior Manager of Marketing and Communications. Tod brings years of experience in policy communication, stakeholder engagement, and membership support. Most recently, he ran the digital communications program for the Alliance of Community Health Plans, where he was a key voice in advocacy messaging and thought leadership. Tod leads NOSSCR’s marketing and public relations efforts, providing important updates to NOSSCR members and sharing NOSSCR’s story with media and thought leaders across the nation.

The Forum

No doubt you’ve noticed the new Forum and our digital enhancements. It has been a long time coming and we’re excited to be able to offer you this new and improved newsletter. We wanted to take this opportunity to explain why we upgraded the format for The Forum.

First of all, it is now searchable and easily archived for members to find past articles. We know that a lot of you save issues of The Forum and refer back to articles for important information. This new format should make that easier.

Second, it’s faster and cheaper for NOSSCR to manage. Previously we would have to have articles submitted two weeks in advance in order to lay out the newsletter. This new format will allow us to write articles right up to the deadline and easily publish and distribute the latest issue. NOSSCR will cut down 10-15 hours of staff time each month by using this new format. In addition, this new format will save NOSSCR about $1,800 per month in layout expenses.

We know that a lot of you miss the paper copies of The Forum and so we included a “Print Issue” button that will allow you to print all of the content of the newsletter with ease and continue to have paper copies if you choose. For others, this new format should make reading The Forum on your phone or tablet much easier. 

Even if you love the new design, it always takes time to get used to changes like we’ve brought to The Forum. Please reach out to NOSSCR with questions or comments about this new format.

AMS

NOSSCR is in the process of instituting a new Association Management System (AMS). Essentially, an AMS system is NOSSCR’s CRM for maintaining our membership rolls, committees, dues, and other information about all of you, our members. The system will be ready to launch in the late spring or early summer.

The new system will provide a number of benefits to NOSSCR members and staff. Firstly, it should provide a much better and simpler user experience for members. Recently, we’ve had a number of bugs in our current system. Many of you have had to call in to NOSSCR to correct your membership status or make sure payments are being processed. This new system will make all of that work much easier and more accurate for you and staff.

The new AMS will also allow NOSSCR to offer online communities by topic area, circuit or other ways, allowing message boards and information sharing between members that NOSSCR has not been able to provide before. We’re very excited to be finally offering this to you.

This new system is going to make NOSSCR more efficient and responsive to members. We will bring you more information on this new system the closer we get to launch.

Women’s Month and International Women’s Day

In honor of Women’s History Month, NOSSCR is a launching a new video series featuring short interviews with women who are NOSSCR members. These interviews explore why these members became lawyers, what makes them passionate about social security law, challenges they’ve faced in their careers, and advice they might have for future women lawyers.

NOSSCR will be sharing these videos on our Twitter, LinkedIn, Instagram, and Facebook pages. To join the conversation, be sure to tag NOSSCR and include the hashtag #WomensMonth.

Fourth Circuit Update

If you practice in the Eastern District of North Carolina, please note that, effective Friday, February 24, 2023, there is an amended procedure for Motions to Proceed In Forma Pauperis. Now, when filing a Motion to Proceed in Forma Pauperis, counsel will file the complaint as the first filing in a case with any attachments such as exhibits, civil cover sheet, or proposed summonses. The second filing in the case will be the Motion to Proceed In Forma Pauperis. Any questions about this amended procedure may be directed to your Circuit Reps or the Clerk of Court for the EDNC.

PAC Contributor List – Feb. 2023

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS!

List is current as of February 10, 2023

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Getting to Know the NOSSCR Staff: Donna Davis

“Soaring to greater heights of service” is a key tenet for the work of Alpha Kappa Alpha Sorority, Inc., the nation’s oldest African American sorority. As a former president of one of the sorority’s four Washington, DC, chapters, it’s also an approach that NOSSCR’s new membership manager, Donna Davis, is excited to bring to her role.

For many NOSSCR members, Donna will be the first person they hear from when having questions related to their membership or events. Having worked at national associations around Washington for nearly 25 years, Donna brings the empathy and experience necessary to provide members with the guidance they need to help resolve their problem.

She recently told the story of her time with the Association of American Medical Colleges. “I had students calling up in tears because they didn’t pass their MCATs or irate parents calling because their child had missed the deadline to register. Working in membership, our job is to be good listeners and provide exceptional customer service, even if we don’t immediately have all the answers they need.”

Donna is a proud Washington native and has spent most of her life in the city. After attending Hampton University in Virginia, she returned to D.C. to earn her business management degree from the University of the District of Columbia. When Xerox—for whom she worked for eight years—offered her an opportunity to move to Tampa, she politely declined, preferring to stay near her family who also lived in the District.

Donna moved to neighboring Prince George’s County, Maryland, in 1997. Although she is a resident of Maryland, she is a D.C. girl at heart. “I love the rich history of the city as well as the sense of family. I attended D.C. public schools and often volunteer to support the students at my alma mater, Eastern Senior High School. I have friends today that I have had since kindergarten.” She and a group of classmates recently took their second grade teacher out to lunch!

When not supporting NOSSCR’s members, you’ll find Donna with a full calendar that oftentimes includes volunteering with her sorority. As a former president, she’s typically on the short list of people to be called when they need more help with an initiative or activity. For those moments when she is at home, you’ll find her diving into crossword puzzles or succumbing to her guilty pleasure, reality TV shows.

Legislation Spotlight: The SHOW Up Act

The House of Representatives passed H.R. 139, the “Stopping Home Office Work’s Unproductive Problems Act of 2023″, or the “SHOW UP Act of 2023”, on February 1, 2023.

The bill was passed by a roll call vote with 221 ayes and 206 noes. Three Democrats joined all but one Republican to vote for the bill. Introduced on January 9, the bill had 26 cosponsors (all Republican) when it was passed. There is no companion bill in the Senate, nor is the Senate likely to take the bill up if introduced.

Bill Summary

The bill takes aim at telework policies of federal agencies. If passed, the bill would require each executive agency to reinstate the telework policies that were in place on December 31, 2019. The bill would also require each agency to conduct an evaluation of the effects of the expansion of telework during the pandemic and detail its plans, if any, regarding telework for the future.

The results of that evaluation would need to be reported to Congress within six months. Agencies may not implement expanded telework policies unless the Office of Personnel Management certifies that such policies, among other requirements, will have a positive effect on the agency’s mission and operational costs. The Social Security Administration would be required to revert to its pre-pandemic telework policies but the impact on agency operations of the bill is expected to be minimal.

Mark Your Calendars: Washington Update Webinar on March 21!

Join NOSSCR President David Camp and Betsy Osborn, NOSSCR’s Government Relations Manager, for NOSSCR’s first Washington Update Webinar of 2023 on Tuesday, March 21 at 1:00 PM ET.

This webinar will focus on the new composition of Congress, the new committee assignments (including new chairs and ranking members of the committees of jurisdiction in the House and Senate), the history of committee members regarding Social Security legislation, how the new balance of power in the House affects the prospects of passing Social Security legislation, and NOSSCR’s legislative priorities for the 118th Congress.

The webinar will also provide an update on the funding for the Social Security Administration for the rest of FY 2023 contained in the Omnibus bill passed in December.

This webinar is free to all NOSSCR members.

NOSSCR Member Kate Lang Nominated to Serve on Social Security Advisory Board

Last month, President Biden announced his intent to nominate NOSSCR member Kate Lang to serve on the Social Security Advisory Board (SSAB). 

Kate is the Director of Federal Income Security at Justice in Aging in Washington, DC, where her advocacy has focused on improving the Social Security and Supplemental Security Income (SSI) programs, centering on the needs of people of color, women, LGBTQ+ individuals, those living with disabilities, immigrants, and those with limited English proficiency. The Board position is subject to Senate confirmation; if confirmed, Kate would serve until September 2026. 

NOSSCR congratulates Kate on this well-deserved honor! 

President Biden also renominated Sharon Lewis and Andrew G. Biggs for terms on the Social Security Advisory Board last month. They were both nominated in the 117^th Congress but the Senate failed to act on their nominations so they needed to be renominated in the current Congress.

If confirmed by the Senate, Lewis would serve until September 30, 2028, and Biggs would serve until September 30, 2030. Biggs has been nominated to finish the term of Lahnee J. Chan through September 2024 and then to a full six-year term of his own. Below are the biographies of all three nominees.

Kathryn Lang, Nominee for Member of the Social Security Advisory Board

Kathryn Lang serves as Director of Federal Income Security in the Washington, DC, Office of Justice in Aging, a national non-profit legal advocacy organization that uses the power of law to fight senior poverty.

Since joining Justice in Aging, her advocacy has focused on improving the Social Security and Supplemental Security Income (SSI) programs, centering on the needs of people of color, women, LGBTQ+ individuals, those living with disabilities, immigrants, and those with limited English proficiency. Her areas of expertise include improving access to SSI benefits, the representative payee program, and language access issues at the Social Security Administration.

Prior to joining Justice in Aging, Lang was an attorney at the Maryland Legal Aid Bureau in Riverdale, Maryland, where she was an advocate for low-income older adults and persons with disabilities for several years. In previous positions, she worked as an attorney at the National Legal Aid and Defender Association, Bread for the City Legal Clinic, and Doherty, Cella, Keane, and Associates, LLP, all in Washington, DC.

She also served as a staff attorney at Legal Services of Northern California. She received her B.A. from Oberlin College and her J.D. from Fordham University School of Law. She also has a Master’s degree from the University of Pennsylvania in teaching English to speakers of other languages.

Andrew G. Biggs, Nominee for Member of the Social Security Advisory Board

Andrew G. Biggs is a Senior Fellow at the American Enterprise Institute (AEI), where he studies Social Security reform, state and local government pensions, and public sector pay and benefits.

Before joining AEI, Biggs was the Principal Deputy Commissioner of the Social Security Administration (SSA), where he oversaw SSA’s policy research efforts. As an Associate Director of the White House National Economic Council in 2005, he worked on Social Security reform. In 2001, he joined the staff of the President’s Commission to Strengthen Social Security.

Biggs has been interviewed on radio and television as an expert on retirement issues and on public versus private sector compensation. He has published widely in academic publications as well as in daily newspapers such as The New York Times, The Wall Street Journal, and The Washington Post. He has also testified before Congress on numerous occasions.

In 2013, the Society of Actuaries appointed Biggs co-vice chair of a blue-ribbon panel tasked with analyzing the causes of underfunding in public pension plans and how governments can securely fund plans in the future. In 2014, Institutional Investor Magazine named him one of the 40 most influential people in the retirement world. In 2016, he was appointed by President Obama to be a member of the financial control board overseeing reforms to Puerto Rico’s budget and the restructuring of the island’s debts.

Sharon Lewis, Nominee for Member of the Social Security Advisory Board

Sharon Lewis is a Principal at Health Management Associates, where she consults with government entities, providers, and advocates to advance opportunities for people with disabilities to fully participate in all aspects of their communities.

Before that, Lewis served nearly six years in presidentially appointed roles at the Department of Health and Human Services. There, she was one of the chief architects of the Administration for Community Living and worked to improve access to quality integrated home and community-based services by working with states, stakeholders, and other federal agencies, including the Centers for Medicare and Medicaid Services, Social Security Administration, and the Departments of Labor, Education, Transportation, and Justice.

Before joining the Obama administration, Lewis worked as a Senior Disability Policy Advisor to the House Committee on Education & Labor and as a Kennedy Public Policy Fellow for the Senate HELP Subcommittee on Children and Families. Lewis is the recipient of the Consortium for Citizens with Disabilities Chairman’s Award and is a graduate of Washington University in St. Louis.

ANALYSIS: Evaluation of Migraines and Fibromyalgia

In Crystal T. v. Commissioner, Social Security, No. 1:22-cv-1483 (D. Md. Feb. 3, 2023), after filing an extensive brief on various issues pertaining to legal and factual errors and substantial evidence, the Commissioner agreed to a Voluntary Remand under Sentence 4 of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

The primary focus of issues leading to the voluntary remand pertained to the ALJ’s improper evaluation of the claimant’s well-documented chronic migraine headaches and fibromyalgia, all of which were supported by substantial medical evidence and non-medical evidence (including claimant’s headache journal showing more than 15 migraines in a 30-day period, all requiring medication and extensive rest in a dark, quiet location).

Citing to various controlling case law in the 4^th Circuit and other circuits, as well as cases directly on point in the U.S. District Court for the District of Maryland itself, the Plaintiff’s case was well supported and warranted remand. Specifically, the various authority cited to confirms that an ALJ may not rely on lack of objective medical evidence (or purported lack thereof such as “normal” MRI findings, neurological testing and exams, etc.) to discount the severity of migraines and fibromyalgia and the resulting pain and other symptoms and limitations, as such impairments are never diagnosed in that manner, nor are they a proper indicator of the severity of the same.

There was also citation to various well supported and accepted medical journal articles standing for the same proposition regarding objective testing for these types of impairments. In addition, the Plaintiff cited to 4^th Circuit and other circuit case law to support the requirement of an ALJ to make specific findings in the RFC regarding how the severity, frequency and duration of headaches and fibromyalgia symptoms is important because the resulting absences or breaks from work leading to time off task may be disabling, and the failure to account for the same in the RFC is clearly reversible error.

Further, the Plaintiff established with supporting case law that an ALJ may not discount the nature and severity of migraine headaches and fibromyalgia on the basis of purported “conservative” treatment, when it is well documented that these types of impairments do not warrant “invasive” treatment, nor do they respond to it; additionally, citing to the 4^th circuit Arakas case, where the ALJ improperly relied upon periods of purported improvement with treatment, all of which was temporary in nature, ALJ’s must “appreciate the waxing and waning nature” of medical conditions and need to “consider the longitudinal records of [the claimant’s] symptoms as a whole” and failing to do so is also reversible error.

Finally, the ALJ’s decision contained numerous instances of improperly cherry picking favorable evidence and improperly playing doctor, thus failing to build an accurate and logical bridge from the evidence to the ultimate findings and conclusions, and also failed to perform a function-by-function analysis of time off task in light of the symptoms from migraines and fibromyalgia, as well as mental health impairments leading to findings of moderate limitations in Concentration, Persistence and Pace as required under the 4^th Circuit’s ruling in the Mascio case.

The case was briefed by Andrew Sindler of Severna Park, Maryland. This piece is a guest column, provided by a NOSSCR member. Views, opinions, or analysis presented in this column represent the views of the author alone.

NOSSCR Conference Session Spotlight: OHO ERAP Training

OHO Program Description: Join the Office of Hearings Operations (OHO) for an informational session describing the Enhanced Representative Availability Process (ERAP), SSA’s new process for representatives to submit availability for hearings. This streamlined process is designed to enhance public service for claimants through effective scheduling, provide a uniform and streamlined scheduling experience for representatives and other hearing participants, and increase efficiency and accuracy in scheduling. Discover the ins and outs of ERAP and learn how you can register. Explore the different options you will have for submitting availability and find the one that best fits your business practices. We look forward to sharing these exciting enhancements with you. 

Note from NOSSCR: *After the ERAP training, NOSSCR is providing a booth where conference attendees can ask OHO officials individual questions, express concerns and complaints, and register for ERAP.  Don’t miss this unique opportunity to learn and converse directly with the OHO officials who are implementing this new scheduling process.  Register for NOSSCR’s conference today!* 

VOCATIONAL TOPICS: Piemonte’s Perspective

What to Do When the VE Fails to Provide the Sources of Their Testimony

When the VE offers clearly bogus testimony, for example, that there are 100,000 people working as addressers (as defined in the DOT), in your cross examination, you will need to ask the VE for their sources of that testimony. But then the VE says they cannot provide their sources or the ALJ prevents you from asking for them.

What is the problem here? Biestek v. Berryhill, 139 S.Ct. 1148 (2019), says VE testimony may not be substantial evidence if the VE has no good reason to fail to produce the data, and the testimony lacks other markers of reliability. The inability to provide the sources of their testimony would certainly lack markers of reliability.

The Vocational Expert Handbook June 2020 version on page 3 states, “At all hearings, you should be prepared to cite, explain, and furnish any sources that you rely on to support your testimony.”

The Solicitor General of the United States in its brief in Biestek endorses the 2017 VE Handbook statement that VEs “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.”

So, what can you do to deal with this? You can still ask for the sources and an explanation of how they used them. Ask why they cannot provide them if they won’t.

• How many pages are there? What confidential information is included? How many places is it found? Have you ever provided the information to anyone? Who? When?
• How did you collect the data? When?
• What did you do to verify that the data is correct? Has anyone else verified it?
• How did you use the data to come to your testimony?

And if the ALJ bars you from questioning the VE point out 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) and what sources they relied on to form their opinion would certainly qualify. You can also point out the VE Handbook, Biestek, and the Solicitor General’s statement in its brief in Biestek. If the ALJ still will not let you question the VE note your exception on the record and submit a post-hearing brief. This will preserve the issue for appeal.

This piece is a recurring guest column, provided by a NOSSCR member. Any views, opinions, or analysis presented in this column represent the views of the author alone.

CASELAW UPDATE: What’s Happening in the 7th Circuit

Hello and welcome!

This is the first edition of a monthly caselaw update for members practicing in the 7th Circuit (Illinois, Indiana, and Wisconsin). Much has changed in our circuit in recent years. The affirmation rate has increased dramatically and with it notices of appeal have decreased. But there are silver linings—both at the circuit level and especially in the district courts.

Whether you regularly practice in federal court or focus more on claims before the agency, monitoring the circuit’s caseload and tracking trends is a critical part of best practices. We hope these updates make it easier to stay up to date. Every month we’ll send a synopsis of each 7th Circuit decision—the good, the bad, and the ugly, whether published or unpublished—from the previous month.

To start off the year, in January 2023 the court issued unpublished orders in two Social Security cases and no published opinions.

• Leskowyak v. Kijakazi (Sykes, Scudder, Lee; Unpublished; Jan. 23, 2023)

Affirmed

Leskowyakunderwent a lumbar discectomy in 2011, stopped working in 2013, and was last insured for DIB in 2017. She applied for DIB alleging disability since 2013. Shortly after her date last insured, Leskowyakneeded another lumbar surgery in 2018. The court suggested that treatment was minimal between the alleged onset and date last insured and declined to infer that the second surgery showed Leskowyak’s condition had been on a “downhill trajectory” since the first. Said the court:

Leskowyak’s counsel observed on appeal both that the 2018 MRI showed degenerative changes at or near the same place in her spine as were addressed in her 2011 surgery and that the diagnosis of post-laminectomy syndrome implies continued difficulties from that surgery. We recognize that there is a certain intuitive attraction to counsel’s reasoning. But that is not enough. Leskowyak (and her counsel) cannot appeal to common sense alone; she needed to support her arguments with medical evidence that was put into the record before the ALJ.

(Emphasis added.)

• McCorkle v. Kijakazi (Sykes, Scudder, Lee; Unpublished; Jan. 13, 2023)

Affirmed

McCorkle developed neurological problems after a car accident in 1989, with migraines, vertigo, and fainting episodes developing in the years since. In 2018, at age 53, she was hospitalized after fainting. She left a sedentary job and applied for DIB. The ALJ included some limitations related to vertigo in the RFC, but McCorkle argued that more was required to account for her migraines such as off-task time due to her nausea, vomiting, and use of Tylenol 3 with codeine. The court found a logical bridge where the ALJ focused on “McCorkle’s more prevalent and objectively observed symptoms.” The court observed that regular complaints of nausea and vomiting were not documented and found no evidence the ALJ improperly overlooked.

The court was careful not to explicitly disturb prior migraine caselaw by emphasizing that McCorkle’s testimony about her symptoms and the ALJ’s adverse credibility findings were not at issue on appeal, such that the question of self-reports versus the need for objective tests did not need to be addressed further.

If anyone has feedback or suggestions about these updates going forward, comments are welcome. My colleagues and I are always open to discussing these cases or just kicking around ideas. Thanks for reading!

Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL

This piece is a recurring guest column, provided by a NOSSCR member. Any views, opinions, or analysis presented in this column represent the views of the author alone.

2022 Waterfall Charts

Below are the waterfall charts for fiscal year 2022. To download the charts, click the “Download chart” button beneath each image.

WATERFALL CHART

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Double Waterfall Chart (with CDRs)

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SSA Announces New Centralized Mail Process for Hearings Operations

The Social Security Administration has sent a Dear Colleague letter outlining a new, centralized mail process for hearing operations.

Recent Subregulatory Changes

The Social Security Administration (SSA) has issued or revised several subregulatory guidance documents that may be of note to claimants’ representatives: 

CJB 22-02 REV

Issued on January 30, 2023, this CJB was updated to explain when ALJs may issue a dismissal in telephone and online video hearings for failure to appear when a Form SSA-5002 (Report of Contact) is in the record memorializing a waiver of the right to timely Notice of Hearing. The CJB was also revised to remove notice requirements for the resumption of in-person and VTC hearings, which resumed months ago, among other things.

POMS GN 03910 TN 30

This guidance explains changes made to POMS GN 03910.040 in January 2023 regarding claimants’ use of electronic signatures in the representative appointment process: “We added language to indicate that the claimant can sign the written notice of appointment either using the paper process or electronically via the e1696 process.  We also added a few NOTES that instruct staff to check emergency messages or other agency guidance to determine whether there are other temporary procedures in place regarding signature requirements and processing of representative appointments.  We have identified several options available to the claimant and representative to submit the appointment notice.  We clarified the procedures regarding processing incoming representative appointments, representative revocations, and representative withdrawals for paper and electronic claims at different levels of adjudication as they relate to entering the information in RASR, flagging and annotating the system, and updating and documenting other systems…”

EM-23011

Published on February 9, 2023, this EM “notifies field office (FO) technicians of procedural changes during FO development of medical continuing disability review (CDR) documentation on the Activities of Daily Living (ADL) questions 8A and 8B for the SSA-454 paper form and i454 mySSA application.” 

As background, the EM explains that “Effective February 11, 2023, adult beneficiaries may complete and submit the SSA-454 (Continuing Disability Review Report) and the SSA-827 (Authorization to Disclose Information to The Social Security Administration) online.  The online SSA-454 will be known as the “i454”.

The link to the i454 will be posted to the beneficiaries my Social Security account. Additionally, the SSA-454 has been simplified and reorganized to reduce completion time and provide clarity in the questions on the form.

The i454 will reflect the revised SSA-454. The SSA-454 will be further revised to remove ADL questions 8A and 8B from the new form. The instructions in this EM will apply while the agency works to remove questions 8A and 8B from the form.” Accordingly, because ADL questions 8A and 8B are no longer required, the EM makes clear that FO technicians do not have to develop these questions if the beneficiary doesn’t answer them before transferring it to DDS.

SSA’s subregulatory guidance can be found online at https://secure.ssa.gov/apps10/ and www.ssa.gov/OP_Home/hallex/hallex.html. 

Useful Resources – February 2023

Resource	URL
Latest Caseload Analysis Report (CAR) for the month of January 2023	https://www.ssa.gov/foia/resources/proactivedisclosure/2023/CAR%20January%202023.pdf
ALJ Disposition Data	https://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html
Contact Information for the Regional Communications Directors (RCDs)	https://www.ssa.gov/agency/rcds.html OR https://www.ssa.gov/news/press/
HALLEX Contents & Recent Changes	https://www.ssa.gov/OP_Home/hallex/hallex.html
POMS Recent Changes	https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=POMT
Emergency Messages (EMs)	https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=EM
Chief Judge Bulletins (CJBs)	https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=CJB
FOIA Reading Room – Proactive Disclosures	https://www.ssa.gov/foia/readingroom.html
Dataset with Contact Information for Each Field Office	https://www.ssa.gov/open/data/FO-RS-Address-Open-Close-Time-App-Devs.html