July 2023 Print Edition
AGENCY UPDATE: President Biden Announces Nominee for Commissioner of Social Security
President Biden has announced he will nominate former Maryland Governor Martin O’Malley as the Commissioner of Social Security.
Governor O’Malley served as Governor of Maryland from 2007 to 2015, following two terms as Mayor of the City of Baltimore. Prior to being elected Mayor, O’Malley served as a member of the Baltimore City Council from 1991-1999 and Assistant States Attorney for the City of Baltimore before that.
More details can be found in the White House press release below.
President Biden Announces Intent to Nominate Martin O’Malley to be Commissioner of the Social Security Administration
Today, President Biden announced his intent to nominate former Maryland Governor Martin O’Malley as Commissioner of the Social Security Administration.
Statement from President Biden:
Governor O’Malley is a lifelong public servant who has spent his career making government more accessible and transparent, while keeping the American people at the heart of his work.
As Mayor of Baltimore and Governor of Maryland, he adopted data and performance-driven technologies to tackle complex challenges facing the communities he served – and I saw the results firsthand when we worked together during my time as Vice President. As Governor, he made government work more effectively across his administration and enhanced the way millions of people accessed critical services.
Since Day 1 I have fought to strengthen and defend Social Security, which tens of millions of Americans have paid into and depend on to support their livelihoods. I know that Governor O’Malley will continue to be a strong partner who works tirelessly to protect Social Security for generations to come.
Martin O’Malley, Nominee for Commissioner of the Social Security Administration
Martin O’Malley is a lifelong public servant, who served as Governor of Maryland from 2007 to 2015, following two terms as Mayor of the City of Baltimore. Prior to being elected Mayor, O’Malley served as a member of the Baltimore City Council from 1991-1999 and Assistant States Attorney for the City of Baltimore before that.
A pioneer of using performance-management and customer service technologies in government, O’Malley has written extensively about how to govern for better results in the Information Age by measuring the outputs of government on a real-time basis.
Martin O’Malley earned a B.A. from Catholic University and a J.D. from the University of Maryland School of Law. Since 2016, he has lectured on public administration at numerous universities and institutions, including the University of Maryland, Harvard University, Georgetown University, and Boston College School of Law.
NOSSCR News – July 2023
Staff Updates
David Camp Named Interim CEO
NOSSCR’s Board of Directors is thrilled to announce that David Camp has been named Interim CEO. As a longtime member, board member, NOSSCR President, and recently serving as Chief Policy Officer, David has a deep understanding of the unique role that NOSSCR plays for Social Security representatives. As Interim CEO, he will focus on modernizing the organization, pursuing an aggressive advocacy agenda, and enhancing member value through new services.
NOSSCR thanks outgoing CEO Steve Gardner, who helped guide the organization through its move to Washington, DC, and launched numerous initiatives aimed at streamlining operations.
NOSSCR Welcomes Jennifer Cronenberg to the Team
Starting July 25, Jennifer Cronenberg is NOSSCR’s new Senior Counsel and Director of Legal Information. Jennifer is responsible for conducting advocacy work with the Administration, helping shape CLE content and programming, and serving as an expert advisor to NOSSCR members. She will be NOSSCR’s primary point of contact for fees and other legal issues where NOSSCR helps members interface with Social Security. She has worked as a Social Security attorney since 2009, and has extensive experience representing claimants and training advocates. We will profile Jennifer in an upcoming Forum.
Upcoming Events
NOSSCR Membership Meeting
All NOSSCR members are invited to attend the 2023 Membership Meeting on September 1, 2023, at 3:00 PM ET.
The Membership Meeting provides members an opportunity to receive organizational updates and suggest items to be considered by NOSSCR’s Board of Directors.
Members can register for the meeting here.
Do you have less than 10 years of experience practicing Social Security law? Do you want to earn CLE credits while building connections with others early in their careers?
Join us in New Orleans this fall for the 2023 NextGen Retreat!
Members active in the 8th Circuit are invited to join; colleagues and peers from across the region at the 2023 8th Circuit Social Security Disability Conference.
The 2023 8th Circuit Social Security Disability Conference provides members unique insights from medical experts, tips on navigating vocational challenges, and a glimpse into Agency operations. Earn CLE, learn from colleagues, and build relationships with fellow representatives across the 8th Circuit!
NOSSCR will be hosting a Virtual Conference on November 8-9, 2023.
The event features experts from across the Social Security and Disability legal landscape. Speakers provide insightful presentations on navigating the claims process, maximizing representatives’ chances of winning cases, running a firm/practice more effectively, finding prospective new clients, and more.
Save the Date
NOSSCR is currently accepting proposals for presentations at the Virtual Conference. If you’re interested in presenting, click here.
PIEMONTE’S PERSPECTIVE: What is “Light Work?”
There are at times when the VE gives light jobs but not with the lifting, standing, or walking of light. The problem with that is it mostly comes up when the claimant will grid out at sedentary and the ALJ wants the VE to give a basis for denial. According to the DOT light work must exceed the sedentary demands (See DOT appendices).
So, how can you deal with this situation in a hearing? Read the DOT’s description of light work to the VE (page 1013). Then ask, “It says physical requirements are in excess of those for sedentary work, doesn’t it?” After the VE acknowledges that is what is says ask them “What demands of [insert job identified by VE] are above sedentary?” Repeat this for each job the VE identified. Then finish with “If it is done as you say, it does not meet the DOT definition of light, does it?”
Remember the goal is to show and get the VE to admit that the physical demands do not exceed those for sedentary and therefore it is not light work.
This piece is a 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 – June 2023 Edition
June was a busy month in the Seventh Circuit. The Court decided five Social Security cases, three of which were published, but only one produced a remand. Of note, three cases addressed VE methodology at Step Five, and all were affirmed.
Without further ado, here are last month’s Seventh Circuit cases:
Martinez v. Kijakazi (remanded, published)
Judges Flaum, Rovner, and St. Eve
June 29, 2023
In preparing Martinez’ administrative record for review in federal court, the Commissioner removed medical records that belonged to another person from one exhibit. The exhibit contained some pages relevant to Martinez, which were not omitted, and other pages that were not hers. Because the exhibit was cited in the ALJ’s decision, Martinez moved to compel production of the missing pages. That was denied, and the district court affirmed the ALJ. The Seventh Circuit could not determine harmless error and remanded for the ALJ to evaluate Martinez’ claim based on the correct evidence. The ALJ cited the exhibit as a whole five times, and the Court could only determine that two citations were harmless based on the context.
Although the Court only remanded to address the record problem, it highlighted three other issues that “give us pause,” which have the potential to be useful:
- The ALJ rejected third-party statements for suspect reasons. Per the Court: “neither being Martinez’s friend nor [the friend’s] lack of medical experience are proper grounds to disregard his statements.”
- The ALJ found Martinez “not fully compliant with treatment recommendations” because he smokes and a doctor suggested he quit. The ALJ’s decision did “not explain the relevance of Martinez’s inability to kick the habit,” and using smoking to discount Martinez’ subjective symptoms would be improper under the Court’s precedent.
- The ALJ discredited a doctor’s statements about Martinez’ panic attacks, anxiety, and ability to function because Martinez did not receive inpatient psychiatric treatment. The Court reminded the Commissioner that a lack of inpatient treatment does not necessarily indicate that a person is capable of gainful employment.
Hohman v. Kijakazi (affirmed, published)
Judges Scudder, St. Eve, and Kirsch
June 28, 2023
An ALJ denied Hohman’s disability claim based on fibromyalgia and mental health conditions with a light RFC at Step Five. The ALJ relied on VE testimony about three DOT codes comprising 130,000 jobs nationally. The VE claimed to reach these jobs numbers through the Bureau of Labor Statistics’ Occupational Employment Statistics. The VE testified that based on 25 years of placement and labor market surveys he did not use the equal distribution method to extrapolate the number of jobs for each DOT code but modified his calculation based on job titles that his experience suggested should not receive equal weight, such as those eliminated by technology. Hohman objected. The ALJ found the testimony reliable.
Hohman first argued that the ALJ should have credited her testimony and found her limited to sedentary work because of fibromyalgia. The Court disagreed, noting that the ALJ did not run afoul of fibromyalgia caselaw or agency policy by relying solely on objective evidence. Hohman walked her dog, did “other household activities,” worked for five years after her diagnosis, and had conservative treatment, which the Court found sufficient.
Hohman also challenged the VE’s job number estimates. The Court characterized two prior cases as the “bookends on the substantial evidence standard” for this issue: Brace v. Saul (2020), where it was insufficient that the VE testified to an “allocation based on weighting or reweighting,” and Fetting v. Kijakazi (2023), where it was sufficient that the VE’s expertise from 30 years of job placements informed his adjustments to BLS data. The Court explained that “where a VE reasonably connects their ‘weighting’ to their knowledge and experience . . . an ALJ can more readily see the logical bridge underlying the estimate.” The Court chided the Commissioner for not updating reliance on the DOT as was promised in 2008, but affirmed.
Leisgang v. Kijakazi (affirmed, published)
Judges Scudder, St. Eve, and Lee
June 26, 2023
A VE estimated that over 2 million jobs were available under Leisgang’s RFC, and an ALJ accepted that testimony to deny his claim at Step Five. Leisgang’s attorney asked the VE about the source of his estimates. The VE testified that he uses Occupational Employment Quarterly, that it applies the equal distribution method to estimate job numbers, and when asked if the VE believed that method was reliable, that it was the only method the VE had available. Leisgang asked no more questions and did not state an objection.
The Court held that Leisgang waived any objection by not make it before the ALJ. While an ALJ “still cannot accept testimony from a VE that is facially implausible or incoherent” and survive review in court, “nothing about the VE’s testimony in this case indicated, by itself, that the ALJ could not put some ‘modicum of confidence’ in the VE’s job-number estimates.”
Leisgang also sought review of the ALJ’s handling of a treating doctor’s opinion. The ALJ found it persuasive but did not include in the RFC the “precise wording” about “some difficulty following a schedule, working without being districted by others and handling a normal workweek without symptoms.” The Court found the doctor’s language vague and allowed the ALJ to “agree[ ] with the thrust of” the opinion in crafting his own RFC language. The Court also noted in passing that the ALJ’s “summarized treatment history” supported his opinion assessment.
Desotelle v. Kijakazi (affirmed, unpublished)
Judges Brennan, Scudder, and Kirsch
June 23, 2023
An ALJ rejected the opinion of Desotelle’s treating doctor that she needed unscheduled breaks and the ability to change positions, and the ALJ denied her claim at Step Five based on VE testimony. The Court found discounting the opinion reasonable where it appeared to rely primarily on unsupported subjective complaints and was inconsistent with other opinions.
Desotelle also argued that the ALJ erred at Step Five and that questioning the VE about the methodology of job numbers constituted an objection. The Court disagreed. The estimates were not challenged, and the two questions asked at the hearing did not reveal any shortcomings in the VE’s data or reasoning for the ALJ to address. And the fact that the VE relied on a publication that employs the equal distribution method does not trigger the ALJ’s duty to inquire.
Richardson v. Kijakazi (affirmed, unpublished)
Judges Rovner, Hamilton, and Scudder
June 21, 2023
Richardson challenged an ALJ’s light RFC based on his symptoms of dizziness and headaches. The ALJ claimed no medical source opined he needed to lie down to relieve his symptoms, but an emergency room doctor suggested he lie flat whenever he felt the dizziness coming on. The Court held that this was not a medical opinion that Richardson needed to nap but only the doctor offering “an option for relief.” The Court found Richardson’s other arguments, including that the magistrate judge and ALJ were biased against him based on prior adverse rulings, without merit.
Thanks for reading!
Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL
DEAR COLLEAGUE: Long COVID Resource for Social Security Disability Claims
In a Dear Colleague letter, the SSA has issued a guidance document for Health Professionals who are providing medical evidence for disability claimants suffering from long-term health effects of COVID-19. The guidance provided is consistent with the agency’s current treatment of COVID-19 as a medically determinable impairment (“MDI”) that can be established by (1) a positive viral test for SARS-CoV-2, (2) a diagnostic test with findings consistent with COVID-19 (e.g., chest x-ray with lung abnormalities, etc.), or (3) a diagnosis of COVID-19 with signs consistent with COVID-19 (e.g., fever, cough, etc.). See Emergency Message EM-21032 REV for further discussion of how claimants with Long COVID are reviewed. Additionally, the agency continues to flag COVID-19 claims solely to identify, track, and collect COVID data. See Emergency Message EM-20060.
While the new guidance does not inform health professionals that an MDI cannot be established by a patient’s subjective complaints alone, it highlights the importance for health professionals to submit all objective evidence and findings related to their patient’s condition. The guidance also solicits medical professionals to provide their opinions of a claimant’s ability to perform daily activities or work-related physical and mental activities. However, reviewing ALJs will likely give little weight to favorable medical opinions that are not substantially supported by the record. See 20 C.F.R. § 404.1520c; HALLEX I-5-3-30.
DEAR COLLEAGUE: Long COVID Resource for Social Security Disability Claims
Date: July 18, 2023
Dear Colleague,
In collaboration with the U.S. Department of Health and Human Services, we published a guide describing the kinds of medical evidence needed to evaluate disability claims filed by people with long-term health effects of COVID-19. For more information, read our Long COVID: A Guide for Health Professionals on Providing Medical Evidence for Social Security Disability Claims fact sheet.
Please help us promote this resource through your networks.
If you have any questions, please contact us at OEA.Net.Post@ssa.gov.
Sincerely,
Dawn Bystry
Acting Associate Commissioner
Office of Strategic and Digital Communications
@SSAOutreach
oea.net.post@ssa.gov
LEGISLATIVE SPOTLIGHT: Social Security Child Protection Act of 2023
On May 25, 2023, Representative Brad Wenstrup (R, OH-02) and Representative Earl Blumenauer (D, OR-03) introduced H.R. 3667, the Social Security Child Protection Act. In addition to its original sponsors, H.R. 3667 has three Republican cosponsors. A companion to this bill has not yet been introduced in the Senate. A markup on H.R. 3784 was held in the Ways and Means Committee on June 7, 2023, and the bill was voted out of committee unanimously on the same day.
This legislation would require the Social Security Administration (SSA) to provide a new Social Security Number (SSN) to children under the age of 14 when their SSN card is compromised when being mailed. NOSSCR supports this bill.
Bill Details
SECTION 1. SHORT TITLE.
This Act may be cited as the “Social Security Child Protection Act of 2023”.
SEC. 2. REISSUANCE OF SOCIAL SECURITY ACCOUNT NUMBERS TO YOUNG CHILDREN IN CASES WHERE CONFIDENTIALITY HAS BEEN COMPROMISED.
(a) In General.—Section 205(c)(2)(B) of the Social Security Act (42 U.S.C. 405(c)(2)(B)) is amended—
(1) by redesignating clause (iii) as clause (iv); and
(2) by inserting after clause (ii) the following new clause:
“(iii) In any case in which a social security account number has been issued to a child who has not attained the age of 14 pursuant to subclause (IV) or (V) of clause (i) and it is demonstrated by evidence, as determined by the Commissioner of Social Security, and submitted under penalty of perjury to the Commissioner by a parent or guardian of the child that in the course of transmission of the social security card to the child, the confidentiality of such number has been compromised by reason of theft of such social security card, the Commissioner shall issue a new social security account number to such child and make note in the records maintained with respect to such child of the pertinent information received by the Commissioner regarding the theft of the social security card.”.
(b) Effective Date.—The amendments made by subsection (a) shall take effect on the date that is 180 days after the date of the enactment of this Act.