June 2023 Print Edition
NOSSCR News – June, 2023
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.
Block the dates on your calendar today and join us this November to earn CLE, gain insights from colleagues, and build connections with peers!
Keep an eye out for more information soon: Registration will open in late July, and additional details about programming and the agenda will be available over the next few weeks.
NOSSCR is also accepting proposals for presentations at the Virtual Conference. If you’re interested, please fill out the form here.
Member Survey
Are you one of the 300 members who have already taken the 2023 Member Satisfaction Survey?
If not, now’s the perfect time!
Your feedback is vital in shaping NOSSCR’s future. This survey will give you an opportunity to express your opinions, suggestions, and concerns regarding your experience as a member.
The anonymous survey will only take about 10 minutes to complete.
But act fast: Members only have until July 1, 2023 to complete the survey.
Survey Sweepstakes
NOSSCR understands that your time is valuable. As a token of our gratitude, all survey participants will be entered into a sweepstakes for a free, one-year membership! The winner will be chosen randomly, and the results will be announced in mid-July.
Thank you in advance for your time and for being a valued member of NOSSCR. If you have any questions or encounter any issues while completing the survey, please feel free to reach out to us at nosscr@nosscr.org.
Event Survey Drawing Winner
Congratulations to Thomas Thompson on winning the 2023 Conference Event Survey Sweepstakes.
Thomas was one of 341 Conference attendees who filled out the event survey after the 2023 Conference; all 341 participants were entered into a raffle for half-off a future NOSSCR Conference.
While Thomas won the main prize, NOSSCR is grateful to everyone who filled out the post-event survey for the 2023 Conference. Your feedback provides essential insight into planning and programming future NOSSCR events and has already led to changes in future events.
Sustaining Members – June, 2023
Piemonte’s Perspective: The Trouble with “Transferable” Skills
VEs often say a claimant has transferable skills, noting everyday activities such as driving a car, answering the phone, speaking to people, making change, etc.
The problem is those are not skills, at least for Social Security disability purposes.
A skill is something learned in past work (SSR 82-41). So, if you learned it in school, from being a parent, or just being alive, it is not a skill. Skills are learned by doing the job.
Then how do you deal with a VE saying that something that is learned in school or just from being a live human being is a transferable skill?
Get a VE to admit a skill is learned by doing a job, not from living, schooling, or other nonvocational experiences.
Questions to consider:
- When and where did he/she acquire the skill of [purported skill]?
- Was there specific training on how to do [purported skill]?
- How long did it take to learn to [purported skill]?
- Are you familiar with Social Security’s Transferability of Skills Assessment? (See POMS DI 25015.017(I))
- If they say yes, ask them to perform the assessment for the purported skill
- If they say no you can 1) object to their testimony, 2) perform the assessment for/with them, or 3) do both
And remember if the RFCA is for unskilled work transferability of skills is not an issue and the ALJ cannot identify skilled or semi-skilled jobs at steps 4 and 5 as a basis for a denial.
Many, if not most, VEs and ALJs are not familiar with what is and what is not a skill let alone the Transferability of Skills Assessment. It is up to you to know it and be sure your client is not improperly found to have acquired skills.
New Listings for Digestive and Skin Disorders
On June 8, 2023 Social Security published a final rule revising sections 5, 105, 8, and 108 of the listings addressing digestive and skin disorders. The new listings are effective October 6, 2023.
Listings 5.05G/105.05G will now require that SSA CLD scores be obtained “within a consecutive 12-month period and at least 60 days apart.” Listings 5.07/105.07 for short bowel syndrome will now require “dependence on daily parenteral nutrition via a central venous catheter for at least 12 months.”
Previously, Listings 8.08/108.08 for burns was fairly straightforward—“extensive skin lesions.” Those listings will soon require documentation of “maximum therapeutic benefit and therefore are no longer receiving surgical management” and other functional criteria. New Listings 8.09/108.09 will cover chronic conditions of the skin or mucous membranes.
As with all changes to listings, NOSSCR members should review these changes carefully and remain aware of the effective date considered with the date of a decision issued by SSA.
Caselaw Update: What’s Happening in the 7th Circuit – May 2023 Edition
There were three Social Security cases decided in May in the Seventh Circuit, including one published opinion. Unfortunately all were affirmations:
Combs v. Kijakazi (affirmed, published)
Judges Easterbrook, Ripple, and Wood
May 30, 2023
Combs sought disability benefits for multiple impairments, most prominently lumbar spondylosis. She underwent a series of injections, branch blocks, and radiofrequency ablation procedures. She testified that her back pain prevented her from standing more than ten minutes and that the procedures she tried did not bring any relief.
Combs argued that (1) the ALJ should have recognized a closed period of disability while she was undergoing the branch block and ablation procedures, (2) the ALJ failed to discuss two instances of these procedures, and (3) the procedures would have caused too many absences to permit employment.
First, the Court found it sufficient that the ALJ’s “recitation” of medical records “ma[d]e it evident that the ALJ did not believe that Ms. Combs was disabled during this time.” The Court left open whether more “clear evidence of serious, repeated medical interventions over a defined period” might produce a different result. Second, the Court did not find it important that the ALJ missed two branch block procedures because the evidence the ALJ recited “shows an understanding” that “multiple and different procedures for pain relief” were occurring. Third, the Court disagreed that a full-day absence for each procedure would be required since each appointment lasted 10 to 20 minutes and at least one occurred at 3:30 pm.
Hightshoe v. Kijakazi (affirmed, unpublished)
Judges Hamilton, Brennan, and Kirsch
May 18, 2023
Hightshoe was involved in a car accident that led to a traumatic brain injury, concussion, and right shoulder impairment. His ongoing post-concussive symptoms included headaches, vertigo, and fatigue. Two and a half years after the accident, Hightshoe took a job at a convenience store to provide health insurance for his daughter, but he left the job after five months. He applied for DIB and an ALJ issued a Step Five denial.
Hightshoe argued that the ALJ improperly rejected his subjective statements and rejected a treating doctor’s opinion that he could not work due to post-concussive symptoms. The Court was extremely deferential to the ALJ, and its generalized conclusion merits quoting:
“This standard [for disability under the Social Security Act] is a stringent one. These benefits are paid for with taxes, including taxes paid by many people who work despite serious physical or mental impairments and for whom working is quite difficult and painful, as it has been for Mr. Hightshoe since his accident. Before tax dollars are available to support someone applying for benefits, it must be clear that the claimant has a severe impairment and cannot perform virtually any kind of work. Unlike many private disability insurance plans, the Act does not contemplate degrees of disability or allow for an award based on partial disability. Also, unlike with many private disability insurance plans, a person may not be disabled under the Act even if he is no longer able to perform his past work. Under this statutory standard, these benefits are available only as a matter of nearly last resort.
“Hightshoe is not malingering. He has shown a strong work ethic and a positive approach to his difficulties. But substantial evidence supported the administrative law judge’s finding that Hightshoe could adapt to new kinds of work. We therefore AFFIRM the judgment of the district court.”
Trzebny v. Kijakazi (affirmed, unpublished)
Judges Brennan, Scudder, and Kirsch
May 16, 2023
Trzebny applied for DIB at age 45 alleging bipolar and anxiety disorders with panic attacks and manic episodes. She was last insured for DIB in 2010, when she was obtaining medication from her doctors but not engaging in consistent counseling, and she had been acquiring some medications illegally to manage her symptoms. State agency psychologists opined that Trzebny has mild to moderate limitations in the “paragraph B” criteria and that she could perform simple tasks with routine and superficial interaction with others. An ALJ issued a Step Five denial with similar restrictions.
On appeal, Trzebny argued that the ALJ should have found that she met a listing, objected to the ALJ’s characterization of substance abuse, objected to the Step Five jobs as “menial,” and argued that the ALJ should have considered evidence from her therapist and hospitalizations dating 9 to 11 years after her date last insured. The Court disagreed in each respect. And the Court found that the more recent evidence did not offer a “retrospective diagnosis that was corroborated by evidence” during the DIB-insured period that should have been considered.
Thanks for reading!
Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL
DEAR COLLEAGUE LETTER: Reminder on Best Practices When Filing Exceptions to the Appeals Council
In a Dear Colleague Letter, SSA has issued a reminder on best practices when filing exceptions to the Appeals Council following a final decision by an Administrative Law Judge issued after remand by the district court. The text of the letter is below and available on the SSA website.
Reminder: Best Practices When Filing Exceptions to the Appeals Council
Date: June 1, 2023
Dear Colleague,
We want to remind you of the following best practices when filing exceptions to the Appeals Council following a final decision by an Administrative Law Judge issued after remand by the district court.
We encourage you to take the steps below to ensure timely processing for your clients:
- When faxing exceptions, please include “Exceptions to Final Decision” in the subject line to ensure proper identification of your submission.
- If you are faxing exceptions, please use the fax number corresponding to the appropriate branch:
Branch Circuit Jurisdiction Branch Fax Number CCPRB-1 7th & 9th Circuits (833) 763-0406 CCPRB-2 1st, 3rd, 4th & 10th Circuits (833) 763-0407 CCPRB-3 DC, Foreign Claims, 6th & 11th Circuits (833) 763-0408 CCPRB-4 2nd, 5th & 8th Circuits (833) 775-0562 - If you requested an extension of time (EOT) to submit exceptions, and you no longer need the extra time, please notify us by faxing the appropriate branch (above) or calling the Claimant and Public Assistance Branch at 703-605-8000 or 1-877-670-2722. If we receive an EOT request separately from exceptions, we will process the EOT which could delay your case unnecessarily.
- If more than 30 days have elapsed since the submission of exceptions and, using your online access, you do not see the case pending in our system, please contact our Claimant and Public Assistance Branch.
Thank you for your continued work on behalf of the public we serve.
Sincerely,
Dawn Bystry
Acting Associate Commissioner
Office of Strategic and Digital Communications
oea.net.post@ssa.gov
@SSAOutreach
SSI Application Challenges Facing AI/AN People
The Social Security Advisory Board (“SSAB”) has released its 2023 SSI Statement, with a focus on rates of poverty and disability in the American Indian and Alaskan Native population. As the report documents, this population experiences “significantly worse socioeconomic circumstances and poor health compared to the general population.”
Among the SSAB’s conclusions, which NOSSCR supports, are that SSA must develop an online SSI application while also “expanding and improving its telephone service.”
4th Circuit: Significant Win by NOSSCR Board Member Karl Osterhout
In a new published 4th Circuit opinion Oakes, NOSSCR board member Karl Osterhout achieved a significant victory that adds to the improving caselaw from that circuit. Addressing an improper discounting of a medical opinion concerning use of an ambulatory device, the ALJ’s handling of Oakes’ subjective complaints, and the ALJ’s improper review of Oakes’ activities of daily living, the 4th Circuit’s opinion is a must-read for all NOSSCR members in all circuits.
From Karl:
This case certainly was not won with a lot of evidence. In fact, there were only 12 pages of it (a CE and two ER visits)! However, once the ALJ agreed (only after repeated badgering by the rep) to schedule the CE, because the claimant did not have access to free health care or any ability to pay for it, the opportunity arose for the Fourth Circuit to strictly hold SSA to its own rules.
The CE confirmed that the claimant had significant orthopedic impairments and limitations, most especially that he needed a cane to stand/walk. The ALJ did not find this persuasive based on strained assertions of “inconsistency” in the report, and some latent lay analysis, and found that the claimant could perform medium work (the only exertion level, since the claimant was 55+, available as a basis to deny the claim).
With these facts, the Fourth Circuit held that when the ALJ orders a CE “it follows that an ALJ must engage in a simple § 404.1520b(b)(2) inquiry.” Since the purported insufficiency in the CE’s report could not be resolved and/or because the ALJ made no effort to resolve it, “the ALJ’s determination based only on the evidence that it possessed was woefully premature.”
Acknowledging that scheduling of a CE is a remedial action under the new regulations, the court nevertheless found that “to schedule such an examination only to immediately dismiss its results on easily curable grounds amounts to a halfhearted execution of regulations intended to discern the truth of one’s claim.”
DEAR COLLEAGUE LETTER: SSA Announces New Enhanced Representative Availability Process
Appointed representatives recently received a flurry of emails and other communications regarding Social Security’s new process for providing availability for hearings scheduling.
Whether or not you attended the trainings at our conference, NOSSCR cautions that you should read these messages carefully and share the information with your staff. We expect a step-by-step transition to Social Security’s new submissions portal, naming conventions, and contact information for scheduling issues.
Below is the Dear Colleague Letter that SSA shared earlier this month; you can also find it on the SSA website here.
Dear Colleague: SSA Announces New Enhanced Representative Availability Process
Date: June 5, 2023
Dear Colleague,
We would like to let you know about a new streamlined process, the Enhanced Representative Availability Process, or ERAP, allowing appointed representatives to submit monthly availability for hearings before Administrative Law Judges.
It’s easy to get started – you must provide us with information about the group for which you want to submit availability. After that, representatives will submit availability by email each month. You can learn about the new process and how to get started on our Hearings and Appeals Enhanced Representative Availability Process (ERAP) page.
On our webpage, you will find a wealth of information regarding the scheduling process, including contact information, definitions, and a full description of the availability process, including availability examples, important scheduling information, and Frequently Asked Questions.
A second resource is our External Liaison Unit (ELU), a specialized unit primarily responsible for obtaining and monitoring representative availability. ELU staff will enter representative-provided availability into our scheduling software application.
For questions regarding representative-provided availability for hearings, or anything regarding ERAP, the ELU will generally be the first point of contact for representatives.
Over the next several months, we will offer information sessions via MS Teams about the new process for all representatives. If you have questions or would like to sign up for an information session, please call the ELU at 1-866-964-1714 or send an email to oho.nsd.nss.elu.general.inquiries@ssa.gov.
We hope that you will join us for a session. You can also visit our webpage for more information about our new process.
Thank you for helping us schedule hearings more efficiently, resulting in better customer service.
Sincerely,
Dawn Bystry
Acting Associate Commissioner
Office of Strategic and Digital Communications
oea.net.post@ssa.gov
@SSAOutreach
Legislation Spotlight: Improving Social Security’s Service to Victims of Identity Theft Act
On June 1, 2023, Representative Drew Ferguson (R, GA-03) and Representative John Larson (D, CT-01) introduced H.R. 3784, The Improving Social Security’s Service to Victims of Identity Theft Act. In addition to its original sponsors, H.R. 3784 has one Republican cosponsor. 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 6, 2023, and the bill was voted out of committee unanimously on the same day.
This legislation would require the SSA to provide victims of identity theft with a single point of contact at the agency when the misuse of their SSN results in the need to resolve an issue or issues with the SSA or when their Social Security card is lost in the mail.
Bill Details
SECTION 1. SHORT TITLE.
This Act may be cited as the “Improving Social Security’s Service to Victims of Identity Theft Act”.
SEC. 2. SINGLE POINT OF CONTACT FOR IDENTITY THEFT VICTIMS.
(a) In General.—Title VII of the Social Security Act (42 U.S.C. 901 et seq.) is amended by adding at the end the following:
“SEC. 714. SINGLE POINT OF CONTACT FOR IDENTITY THEFT VICTIMS.
“(a) In General.—The Commissioner of Social Security shall establish and implement procedures to ensure that any individual whose social security account number has been misused (such as to fraudulently obtain benefits under title II, VIII, or XVI of this Act, or in a manner that affects an individual’s records at the Social Security Administration, or in a manner that prompts the individual to request a new social security account number) has a single point of contact at the Social Security Administration throughout the resolution of the individual’s case. The single point of contact shall track the individual’s case to completion and coordinate with other units to resolve issues as quickly as possible.
“(b) Single Point Of Contact.—
“(1) IN GENERAL.—For purposes of subsection (a), the single point of contact shall consist of a team or subset of specially trained employees who—
“(A) have the ability to coordinate with other units to resolve the issues involved in the individual’s case, and
“(B) shall be accountable for the case until its resolution.
“(2) TEAM OR SUBSET.—The employees included within the team or subset described in paragraph (1) may change as required to meet the needs of the Social Security Administration, provided that procedures have been established to—
“(A) ensure continuity of records and case history, and
“(B) notify the individual when appropriate.”.
(b) Clerical Amendment.—The table of contents for title VII of the Social Security Act (42 U.S.C. 901 et seq.) is amended by adding at the end the following new item:
“Sec. 714. Single point of contact for identity theft victims.”
(c) Effective Date.—The amendment made by subsection (a) shall take effect 180 days after the date of enactment of this Act.
Useful Resources – June 2023
Social Security Subcommittee Holds Hearing on Identity Theft
A second hearing of the House Ways and Means Social Security Subcommittee was held on May 24, 2023. Focused on the role of the Social Security Administration (SSA) in combatting identity fraud, the hearing included the following witnesses: Sean Brune, Deputy Commissioner for Systems and Chief Information Officer, SSA; Katie Wechsler, Co-Executive Director, Consumer First Coalition; Margaret Hayward, private citizen and mother of three; Robert Roach, President of the Alliance for Retired Americans; and Jeffrey Brown, Deputy Assistant Inspector General of the Office of Audits, Office of the Inspector General, SSA.
The witness testimony focused on the challenges in protecting Social Security Numbers (SSNs) from theft by bad actors who use those numbers to commit financial crimes. While SSNs were initially easier to keep secret because of their narrow use, they are now required by both the government and the private sector to verify an individual’s identity for a variety of reasons. More widespread use of SSNs inevitably results in more instances of identity theft.
Katie Wechsler of the Consumer First Coalition described synthetic identity fraud. According to the Federal Reserve, this type of fraud involves the use of a combination of personally identifiable information (PII) to fabricate a person in order to commit a dishonest act for financial or personal gain. Synthetic identity fraud, which often involves the use of SSNs, can be used to gain employment or housing. It can also be used to obtain goods or services with no intent of repayment.
Ms. Wechsler explained that the Consumer First Coalition worked with the SSA to create the electronic Consent Based Social Security Number Verification (eCBSV) Service to combat this type of fraud. According to the SSA website, this fee-based service “allows permitted entities to verify if an individual’s SSN, name, and date of birth combination matches Social Security records.” While eCBSV shows promise in helping to mitigate synthetic identity fraud, Ms. Wechsler expressed concerns that increases in fees for using the service would discourage use.
Compelling testimony regarding the use of children’s SSNs to perpetrate fraud was offered by Margaret Hayward who described the ordeal she faced when her newborn daughter’s Social Security card was lost in the mail. Fearing that the card had been stolen and would be used to open financial accounts in her daughter’s name, Ms. Hayward attempted to act quickly to protect her daughter’s identity. She elicited help from the SSA only to be frustrated by bureaucratic hurdles and a lack of transparency about what could be done to help her daughter or how to do it. As a result of Ms. Hayward’s testimony, both Republicans and Democrats on the subcommittee pressed Sean Brune of the SSA to find ways to alleviate the concerns of parents like Ms. Hayward who worry that misuse of their children’s SSNs will wreak havoc on their credit for years to come.
Two bipartisan bills were introduced in the wake of this hearing. If passed, H.R. 3784 would require the SSA to provide victims of identity theft with a single point of contact at the agency when the misuse of their SSN results in the need to resolve an issue or issues with the SSA or when their Social Security card is lost in the mail and H.R. 3667 would require the SSA to issue a new SSN to children under the age of 14 when their SSN card has been compromised while being mailed.