NOSSCR Comments: SSI Removal of Food from ISM

NOSSCR submitted the following comments on SSA’s proposal to remove food from the calculation of in-kind support and maintenance (ISM) for SSI claims.

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Faye Lipsky, Director
Office of Regulations and Reports Clearance
Social Security Administration
6401 Security Boulevard
3rd Floor (East) Altmeyer Building
Baltimore, Maryland 21235-6401
Submitted via Regulations.gov

RE: Omitting Food From In-Kind Support and Maintenance Calculations (Docket No. SSA-2021-0014)

Dear Director Lipsky:

These comments are submitted on behalf of the National Organization of Social Security Claimants’ Representatives (NOSSCR), a specialized bar association for attorneys and advocates who represent Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claimants throughout the adjudication process and in federal court.

We support SSA’s proposal to remove food from the calculation of in-kind support and maintenance (ISM). However, NOSSCR has concerns over SSA’s proposal to still consider food expenses for the purpose of determining whether to use the value of the one-third reduction (VTR) rule or the presumed maximum value (PMV) rule and to still ask questions about food. This change, as proposed, would not actually simplify the ISM rules, or promote clarity for either SSI claimants/recipients or SSA staff. NOSSCR believes this proposal to eliminate food expenses from the ISM calculations, but to still consider food expenses for determining which ISM value rule to apply, would only cause more complexity and confusion. Administrative simplification must be the priority for claimants to understand the rules and for SSA staff to properly apply them.

In order to truly simplify the ISM rules and promote clarity, administrative efficiency, and equity, countable ISM should only include shelter and living arrangements that have real market value. NOSSCR believes this would be best accomplished by changing the ISM rules to a rebuttable presumption that the SSI claimant/recipient has no countable ISM, because only rarely is the ISM received of true market value. Although ISM is included in the statutory definition of “unearned income,” we do not believe a rebuttable presumption of no ISM conflicts with Title XVI of the Social Security Act. For example, while the Act contemplates a one-third payment reduction when the SSI claimant/recipient is living in another person’s household and receiving ISM, it does not dictate how to determine whether the claimant/recipient is receiving countable ISM.

In addition to removing the consideration of food expenses altogether, changing the presumption to no countable ISM would provide simplification and clarity to both SSI claimants/recipients and SSA staff in understanding and applying the rules. This change would also promote efficiency by reducing the amount of time SSA staff must spend on making complex and fact-specific ISM calculations and the amount of information SSI claimants/recipients must report to SSA. Most importantly, this change would promote equity by not punishing the vulnerable and struggling population of SSI claimants/recipients when receiving help to obtain basic life necessities such as food and shelter.

NOSSCR urges SSA to make these meaningful changes to the ISM rules to better serve those receiving SSI payments, who are, by definition, the most needy of the disabled and aged population. The same justifications for removing food from the ISM calculations also support revising how living arrangements are considered for the calculation of ISM. For example, under SSA’s rules, a transient or homeless SSI recipient will have their monthly payment reduced for ISM under the PMV rule when staying on a family member or friend’s couch. See POMS SI 00835.060. Sleeping on someone else’s couch has no marketable value and should be treated the same as sleeping in an abandoned building, in a park, or in a vehicle, which are considered “ISM of no value.” See POMS SI 00835.060B.2. NOSSCR does not believe this rule change would even require a regulatory change; however, we emphasize this as an example of a rule/policy that only serves to disadvantage the most disadvantaged and must be changed to truly simplify the ISM rules and promote the agency’s goals of equity and efficiency in the SSI program.

The Social Security Advisory Board’s 2015 statement on the SSI program, which SSA cited to in this Notice of Proposed Rulemaking, accurately describes the complexity of the ISM rules and demonstrates the immediate need for major changes, specifically to the ISM rules on living arrangements:

The need to perform [ISM] computations vastly complicates administration of [SSI] cases, as the analysis is ongoing. The Social Security Advisory Board noted in its 2005 SSI Statement that the agency POMS contains the equivalent of 250 single-spaced typed pages of instructions on living arrangements and in-kind support. The POMS Table of Contents for SSI is 80 pages, which does not include any of the substantive disability related processes–just program requirements. The application for disability under SSI is 23 pages; by contrast the disability application under the disability insurance program is seven pages, even though the disability analysis both programs mirror each other. Much of the complexity of the SSI program results from the effort to describe how to handle ISM calculations for diverse living arrangements and circumstances… To appreciate the complexity of the POMS, one need only page through all of the different circumstances and scenarios which the field staff considers in its evaluation. For each new requirement in the program, or change in rules, several POMS sections will be created to explain issues and anticipate different scenarios and unique situations in an effort to create national consistency. Even with and, perhaps because of, all the detail, it is virtually impossible to attain consistency in ISM analyses.

Accordingly, eliminating food from the ISM calculations is but one minor change that is required to simplify the ISM rules and promote uniformity in the SSI program nationwide. For these reasons, NOSSCR has concerns about SSA’s proposal to clarify that income may be received “constructively.” This seems like an unnecessary change that will only result in more work and confusion for SSA staff to accurately understand and apply the ISM rules.

SSI payments are the sole means of survival for millions of low-income individuals with disabilities, which are used to meet their basic needs. As such, it is crucial that the ISM rules only account for shelter that has actual, marketable value, because any reduction to the already modest SSI payments has a significant and potentially detrimental impact on the SSI recipient and could mean the difference between having money to pay essential household bills or for necessary medical care.

In addition to making meaningful changes to the SSI ISM rules, NOSSCR urges SSA to modernize the processes and systems used to make ISM determinations and calculations. We note that SSA has yet to release an online SSI application, which NOSSCR and the advocacy community have been urging the agency to do for years. SSA’s failure to modernize SSI processes results in increased delays, errors, and wasted budget, which harms SSI claimants/recipients who are reliant on timely and accurate SSI payments and frustrates the ability of agency staff to serve these claimants/recipients efficiently and effectively.
Thank you for your consideration of these comments.

Thank you for your consideration of these comments.

Sincerely,

David Camp
Chief Policy Officer

NOSSCR News – March, 2023

National Conference

With only five weeks to go, the NOSSCR team is hard at work preparing for the 2023 Annual Conference in Washington, DC. We’re pleased to announce we’ve secured a keynote from Senator Debbie Stabenow (D-MI), a champion of Social Security and a longtime friend of NOSSCR. Plus, leaders from the SSA will be on site to speak with NOSSCR members—and we have two special training sessions from OHO representatives on ERAP training.

The Conference will also feature in-depth CLE courses. Whether you’re looking for insights from former ALJ’s, tips for running your practice, or the nuts of bolts of representing your clients, our programming has you covered.

There will also be plenty of opportunities to network with your peers—including at multiple new events we’re introducing for the 2023 Conference, such as the Women Wine Down and the NextGen reception.

If you haven’t yet, take the time to register today. Our team has put together a phenomenal event, and we’re looking forward to seeing you all next month.

New Board Leadership, CEO at NOSSCR

This month, NOSSCR named multiple officers to the Executive Committee of its Board of Directors, including:

• President Sarah Park
• Vice President and President Elect Rick Fleming
• Treasure Paul Burkhalter
• Secretary Rob Wendt

You can find the full list of Directors on the NOSSCR website here.

Stephen Gardner—who has been acting as interim CEO—has also accepted an offer from the NOSSCR Board to serve as the permanent CEO, and David Camp, former NOSSCR President, has accepted a role as Chief Policy Officer.

Washington Update

Earlier this month, NOSSCR Government Relations Manager Betsy Osborn and Chief Policy Officer David Camp hosted a webinar outlining NOSSCR’s policy agenda and breaking down the current Washington landscape. Betsy and David provided insights into the current Chair and Ranking Members of key Congressional committees.

Watch the recording here.

Voices of NOSSCR

As part of Women’s History Month, NOSSCR conducted three interviews with different members exploring the experiences as women working in law. Videos feature NOSSCR members Christine Burnside, Jessica Mitchell, and Audrey Van Gilder can be found on the NOSSCR YouTube channel.

These videos are just the first set of member profiles NOSSCR will be rolling out throughout the rest of the year to highlight our unique members. Be on the lookout for more video profiles—including one next month with the new NOSSCR President, Sarah Park.

From the Senior Staff Attorney’s Desk

I wanted to provide an update on various issues that I’m working on with SSA to advance NOSSCR’s policy priorities and improve your ability to represent claimants:

Revisions to NOSSCR’s Hearing Format Election Statement

NOSSCR recently revised our Hearing Format Election Statement based on feedback from OHO, which issued reminders to schedulers nationwide that representatives are permitted to use NOSSCR’s form and that use of SSA’s forms is not required. If you are encountering issues at your local hearing offices when attempting to use our form, please contact me directly so we can report them to OHO, which has been very responsive to these problems and quick to address them.

Erroneous 1099 Issues

The IRS requires SSA to issue a Form 1099-MISC to each representative who is affiliated with a registered firm or business entity and receives aggregate fees of $600 or more in a calendar year, with the total fee payments reflected in box 10 (Gross proceeds paid to an attorney), which the IRS does not consider personal or taxable income to the individual representative. Representatives who work as sole proprietors, or who work for business entities who are not registered with SSA, receive a Form 1099-NEC, with income reported in box 1 (Nonemployee compensation), which is considered taxable income. As you know, SSA frequently misreports fees paid to representatives, resulting in the issuance of 1099-NEC forms to salaried associates who have no right to or interest in the fees paid in their names. Because of SSA’s failure to correct these reporting errors, representatives have been forced to find workarounds with their accountants in order to report their income correctly when filing their personal taxes. 

After working closely with SSA over the past few years, the agency finally has a way to correct erroneous 1099 issues for representatives. I have sent a few test cases to my fee contact at SSA for training purposes and will report back with detailed instructions on how to request correction and from who/which office once I have more information.

Health IT (HIT) at OHO

SSA’s HIT initiative is an electronic records transmission program that allows SSA to request and obtain medical records from participating providers instantaneously at no cost to the claimant or representative. While only agency staff can currently utilize HIT directly, NOSSCR is working on getting HIT expanded to representatives and ensuring that HIT is utilized whenever possible to obtain records, which saves times, reduces costs to claimants and representatives, and ensures the record is complete. For these reasons, this is a top priority for NOSSCR.

As a direct result of our efforts, we’ve convinced OHO to add a functionality so that HIT requests are automated at the hearing level (i.e. when a request for hearing is filed, HIT requests are made automatically like they are at the DDS level). This automated HIT trigger was implemented in February 2023 for every new case received at OHO. We have also confirmed with SSA and OHO leadership that OHO staff should be making updated HIT requests during case workup in all cases, regardless of whether the claimant is represented or unrepresented, and that the automated HIT trigger does not preclude use of the manner trigger to generate subsequent HIT requests. 

We hope this will ensure HIT is being utilized more consistently while we continue to advocate for the expansion of HIT to the representative community.

PAC Contributor List – March 2023

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS!

List includes all donors from Jan 1, 2022 – March 24, 2023

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Key: CAP= Capitol Club, $5,000/monthly contribution of $416
PC= Platinum Club, $2,500-$4,999/ monthly contribution of $208-415
DC=Diamond Club, $1,000-$2,499/monthly contribution of $83-207
CC= Century Club, $100-$999
C=Contributor, all other contributions

Social Security Administration Proposes FY2024 Budget Request to Congress

On March 9, the Biden Administration released its Fiscal Year (FY) 2024 budget proposals to Congress. SSA’s

“…FY 2024 budget request is $15.5 billion, a nearly $1.4 billion or 10 percent increase from the FY 2023 enacted level. This increase is necessary to improve services at our field offices, State DDSs, and teleservice centers for retirees, people with disabilities, and their families. The Budget also assists people facing barriers in accessing our services through expanding online tools and improving National 800 Number service, and by adding staff to reduce the wait for a disability decision.” Social Security Administration, Justification of Estimates for Appropriations Committees, Page 8

SSA received a $785 million increase over the FY2022 actual funding level in the FY 2023 full year appropriation that was enacted at the end of last calendar year. SSA indicated that the increase received last year was not even enough to prevent service deterioration, let alone to decrease backlogs or wait times for disability determinations, reconsiderations, hearings, or 800 number calls. As you can see from the chart below, SSA predicts a significant deterioration in all of those metrics in FY2023, despite the increase in this FY year’s budget.  SSA requested the same increase last year and, as is outlined in this dear colleague letter, indicated it is what is needed to improve customer service. SSA indicated in this letter that it would need at least $800 last year just to maintain customer service at FY2022 levels in FY2023.

NOSSCR has long advocated for adequate funding for SSA and also advocates for SSA to ensure it is taking every step it can to use the funding it has in the most efficient and effective ways.

Presidential budget requests often include legislative changes that it is working with Congress on getting implemented into law. This years budget did not contain any specific proposals but did indicate that SSA is looking forward to legislating on Social Security and SSI. The following language about potential legislative priorities was included in the budget proposal:

Protects the Benefits that Americans Have Earned

The Administration is committed to protecting and strengthening Social Security and opposes any attempt to cut Social Security benefits. The Administration looks forward to working with the Congress to strengthen Social Security by ensuring high-income individuals pay their fair share. In addition, the Administration looks forward to improving the Supplemental Security Income program to help low-income older Americans and people with disabilities afford their basic needs.

Provides National, Comprehensive Paid Family and Medical Leave

The vast majority of America’s workers do not have access to paid family leave, including three out of four private sector workers. Among the lowest-paid workers, who are predominantly women and workers of color, 92 percent have no access to paid family leave through their employers. As many as one in five retirees leave the workforce earlier than planned to care for an ill family member, which negatively impacts families as well as the Nation’s labor supply and productivity. The Budget proposes to establish a national, comprehensive paid family and medical leave program administered by SSA. The program would: provide workers with progressive, partial wage replacement to take time off for family and medical reasons; include robust administrative funding; and use an inclusive family definition. The Budget would provide up to 12 weeks of leave to allow eligible workers to take time off to: care for and bond with a new child; care for a seriously ill loved one; heal from their own serious illness; address circumstances arising from a loved one’s military deployment; or find safety from domestic violence, sexual assault, or stalking. The Budget would also provide up to three days to grieve the death of a loved one. The Administration looks forward to continuing to work with the Congress to make this critical investment and strengthen America’s economy.

It is unlikely that Congress will fund SSA at the level it has requested. Republicans, who are in control of the House, have indicated cutting spending is a priority and are unlikely to agree to funding SSA at the level requested in the President’s proposal. It is important to remember that the President’s funding request is simply that: a request that is almost never enacted at the level requested. But it does set the parameters of the debate and becomes a starting point for Congressional discussion.

Meet the NOSSCR Staff: Betsy Osborn

Do you remember that scene in the movie Top Gun when the fighter jet just barely sticks the landing on the aircraft carrier – a tiny strip of concrete in a vast, blue ocean?

If your immediate reaction was, “That’s something I’d love to try,” you might want to first check with NOSSCR’s new government relations manager, Betsy Osborn. She got to experience that tailhook landing as well as a catapult take-off when working as a legislative aide to the chairman of the U.S. House Armed Services Committee.

“It was both thrilling and terrifying,” Betsy says of the experience. “At one point, I was certain the G- force was going to make my eyes pop out of my head. The entire experience left me with profound respect for the men and women who serve in the U.S. Navy. Their professionalism and expertise are unmatched.”

While perhaps not as exhilarating as landing on an aircraft carrier, Betsy is very excited to be at NOSSCR. As a veteran of Capitol Hill, she’s had the opportunity to work on dozens of policy issues, but always found herself drawn to social security.

“Previous roles have given me a first-hand view of the impact the social security disability program can have in helping people. It’s a monumental safety net for people with disabilities,” she says.

Her interest in social security issues has even influenced her view of history. She notes that Franklin Delano Roosevelt is her favorite president and it’s partly because of the role he played in creating the social security program.

Betsy sees her NOSSCR role as having two major responsibilities. Most prominently, she’ll be responsible for building relationships with key members of Congress and their staff to educate them about NOSSCR’s legislative priorities and gain their support.

Her second role is no less important though – engaging NOSSCR members to get involved in advocacy. “We need our members to speak out and share stories about the challenges they and their clients face. In the end, their activism will benefit themselves and the entire profession.”

CASE LAW UPDATE: What’s Happening in the Seventh Circuit

After a rough start in January, I’m pleased to report two remands—one published and one unpublished—in the Seventh Circuit in February, 2023.

A quick word about panel composition in recent cases. Judge Pryor was elevated to the Seventh Circuit in December, assuming Judge Hamilton’s seat as he took senior status. Kennedy marks Judge Pryor’s first Social Security case since her confirmation. Judge Lee, who joined the Court last September when Judge Wood assumed senior status, was on the panels of both cases that the Court affirmed in January. Judge Lee’s first Social Security case as a circuit judge was Sok v. Kijakazi (affirmed) in December. There is one vacancy in our Circuit for the former seat of Judge Kaane, who died last June. As of this writing, there is no nomination pending.

Without further ado, here are the Seventh Circuit cases from February 2023:

Kennedy v. Kijakazi (unpublished)

Judges Sykes, Wood, and Pryor

Feb. 14, 2023

Kennedy fell and broke a vertebra in his neck. He had residual pain and tingling after surgery and problems using his hands and fingers. A VE testified that a limitation to occasional handling and fingering would preclude work, but an ALJ found Kennedy could do so frequently and denied his disability claim. Shortly before the ALJ’s decision, Kennedy’s doctor ordered an EMG. The study took place a month after the decision and showed evidence of carpal tunnel syndrome, possible compression of an ulnar nerve, and damage to nerve roots near the spine. Kennedy sent the EMG to the Appeals Council, which found it did “not relate to the period at issue.”

The Government “made no effort to defend the Appeals Council’s actual rationale” and argued there was no reasonable probability that the EMG would change the outcome. The Court explained that Chenery applies at the Appeals Council and requires the Government to limit itself to the Council’s stated reasons. Harmless error arguments could not clear “the high bar for bypassing Chenery” because (1) no doctor had scrutinized the EMG results “and this is not the stuff of lay knowledge” and (2) “even if the EMG results duplicated other evidence,” such as Kennedy’s reported hand pain and his doctor’s earlier suspicion of carpal tunnel syndrome, “the corroboration [the EMG] provided may have led to a different decision.” The Court remanded because “it is at least possible” that the EMG would change the outcome.

Sevec v. Kijakazi (published)

Judges Easterbrook, Ripple, and Wood

Feb. 1, 2023

Sevec, 60 years old when an ALJ denied her disability claim, had developed osteoarthritis in her knees. She worked as a registered nurse in various long-term care facilities until it became difficult to be on her legs long enough to do the job. A vocational expert classified Sevec’s past work as a “home health nurse,” without elaboration, and told the ALJ that this job would “possibly” be available as Sevec performed it based on the controlling hypothetical. Sevec’s counsel did not ask questions about this classification, and the ALJ issued a Step Four denial.

The Court sharply rejected arguments that the vocational expert’s testimony provided substantial evidence for the ALJ’s decision—even at Step Four where Sevec had the burden of proof. The Court questioned “whether, in forming his opinions, the VE actually had reviewed the record and had paid attention to the testimony,” suggesting that the expert confused the long-term care facility jobs he was supposed to classify with some home health care work that Sevec did for a neighbor, which the ALJ told the expert not to classify. Nor could the Court find evidence in Sevec’s testimony that she worked at the light exertional level, as the expert claimed. The Court colorfully described the expert’s conclusion that this job would “possibly” be available as breezy, terse, vague, ill-explained, equivocal, and “too thin an evidentiary reed on which to base a disability determination.” Finally, the ALJ’s reliance on this testimony without addressing its equivocality, per the Court, added “a gloss of certainty to the VE’s testimony that the record does [not] support.”

Thanks for reading!

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

Meet the Congressional Chairs

Social Security legislation typically goes through two committees of jurisdiction in Congress.

In the House, the Ways and Means Committee generally addresses legislation related to Social Security, and the subcommittee within Ways and Means that handles these matters is the Subcommittee on Social Security.

In the Senate, the Finance Committee handles legislation related to Social Security. The subcommittee within the Senate Finance Committee that deals with these issues is the Subcommittee on Social Security, Pensions, and Family Policy. Below, is a list of the Chairs of these committees and a bit of information about them.

Representative Jason Smith (R-MO) – Chairman of House Ways and Means Committee

Rep. Smith is from Southeast Missouri and was first elected in 2013. His background is in farming and law. He is a fervent advocate of limited government and previously served as Ranking Member on the House Budget Committee. Smith is a former member of House leadership and the youngest ever Chairman of the Ways and Means Committee.

Representative Richard “Richie” Neal (D-MA) – Ranking Member of House Ways and Means Committee

Rep. Neal represents the West-Central part of Massachusetts. He was first elected in 1989 and formerly served as Chairman of the Ways and Means Committee. He is a party leader on economic policy and is known as a quiet dealmaker who is sometimes willing to work with Republicans to advance legislation.

Representative Drew Ferguson (R-GA) – Chairman of House Subcommittee on Social Security

Rep. Ferguson was first elected in 2016 and represents the North-West region of Georgia. He is a dentist. Ferguson is known as an ally of Republican leadership. As Mayor of West Point, Georgia, he brought a large Kia plant to town. Up to this point, his focus in Congress has not been on Social Security issues. For instance, his caucus memberships are primarily those related to transportation, sporting, and national security.

Representative John Larson (D-CT) – Ranking Member of House Subcommittee on Social Security

Rep. Larson was first elected in 1999 and is from the North-Central part of Connecticut. He has extensive background in Social Security policy and is the former Chairman of the House Subcommittee on Social Security. Larson is the author of legislation called Social Security 2100: A Sacred Trust. If enacted, this bill would expand Social Security by imposing an additional payroll tax on earnings above $400,000. Larson also launched a bicameral Expand Social Security Caucus with Senator Bernie Sanders (I-VT) and Senator Elizabeth Warren (D-MA).

Senator Ron Wyden (D-OR) – Chairman of Senate Finance Committee

Sen. Wyden was first elected to the Senate in 1997 and is the senior Senator from Oregon. He is one of the longest serving Democrats on Capitol Hill and has a reputation for crafting bipartisan deals on polarizing issues. Wyden is a proponent of broad restructuring of the tax base by eliminating deductions.

Senator Mike Crapo (R-ID) – Ranking Member of Senate Finance Committee

Sen. Crapo is the senior Senator from Idaho and was first elected to the Senate in 1999. He is the Chief Deputy Minority Whip and a member of the “Gang of Six,” a bipartisan group of Senators who attempted to work together to reduce the federal deficit. Crapo previously supported across-the-board discretionary spending cuts, excluding Social Security.

Senator Sherrod Brown (D-OH) –Chairman of Senate Subcommittee on Social Security, Pensions, and Family Policy

Sen. Brown was first elected in 2007 and is the senior Senator from Ohio. He is considered a populist with a bridge to the Democrats’ progressive and centrist wings. Brown is the author of the bipartisan Social Security Fairness Act, which would repeal the Windfall Elimination Provision (WEP) and Government Pension Offset (GPO).

Senator Thom Tillis (R-NC) – Ranking Member of Senate Subcommittee on Social Security, Pensions, and Family Policy

Sen. Tillis is the junior Senator from North Carolina and was first elected to the Senate in 2015. He is business-oriented and considered socially and fiscally conservative. While he maintains a reliably conservative voting record, Tillis did vote for a bill to give married same-sex couples Social Security benefits.

For more details, watch NOSSCR’s recent Washington Update.

RESOURCE: NOSSCR Hearing Format Election Statement – Revised Version

NOSSCR’s Hearing Format Election Statement is a one-page fillable form that contains all four types of hearing modalities (in-person, VTC, telephone, and online video) and allows for a simple way to notify OHO of how the claimant wants to appear at their hearing.

Using NOSSCR’s form, this information can be communicated to OHO on a single, straightforward form, which cannot be accomplished using SSA’s forms, specifically the HA-55 and the COVID-19 Remote Hearing Agreement Form. Not only do SSA’s forms require multiple submissions to communicate this information, but SSA’s COVID-19 Remote Hearing Agreement Form(s), for both represented and unrepresented claimants, still contain the following language: “If you do not agree to appear by telephone or by online video, we will delay scheduling your hearing, or, if already scheduled, we will postpone your hearing until we reopen our offices.”

SSA’s offices were reopened for in-person hearings last spring so the threat of delayed scheduling and postponement for claimants who want to appear in-person is not only inaccurate but also misleading. NOSSCR has serious concerns about this language and how it has negatively influenced claimants’ decisions to proceed with a remote hearing modality (via telephone or online video), especially for unrepresented claimants who may have felt pressured into consenting to a remote manner of appearance simply because of this incorrect information contained on an official SSA form.

NOSSCR raised our concerns about the inaccurate and misleading language on SSA’s COVID-19 Remote Hearing Agreement Forms and were told that updated versions, no longer indicating that hearing offices are closed, had been sent to claimants via mail since May 2022 and would be posted online. At the time of writing, no changes have been made to the online forms, which still contain the outdated, misleading language.

Accordingly, NOSSCR recommends using our Hearing Format Election Statement, which has been revised based on feedback from OHO to make the language clear enough for OHO’s schedulers and protective of the claimant’s rights. Notably, OHO has continued to remind schedulers that representatives are permitted to use NOSSCR’s form to communicate the claimant’s consent and/or objection to the different manners of appearance and that use of SSA’s outdated forms are not required.

VTC Objections

NOSSCR has revised our Hearing Format Election Statement to add provisions regarding the regulatory 30-day opt-out period for VTC hearings, which is still required for a timely objection to appearing by VTC. Specifically, 20 CFR 404.936(d)(1) and 416.1436(d)(1) require the VTC objection to be submitted in writing within 30 days after receiving the acknowledgement of the request for hearing notice. You and the claimant are not required to use SSA’s official form, the HA-55, to object to appearing by VTC; the regulations only require that the objection be in writing.

If an objection to VTC was not timely submitted but the claimant does not want to appear by VTC, NOSSCR’s revised form now allows you to make a request for good cause for the late submission and provide the claimant’s reason(s) for missing the 30-day deadline.

Consent to Remote Hearings

NOSSCR has also removed the following language from the consent to phone and online video hearing (OVH) sections of our form: “We do not ask for an in-person hearing.” This revision was made for consistency with SSA’s current regulations and subregulatory guidance, which do not allow a claimant to object to an in-person hearing. See CJB 22-04; 20 CFR 404.936 and 416.1436; and HALLEX I-2-3-12 A.1. However, if the claimant has consented to appearing by phone or OVH at the time of scheduling, OHO should honor the claimant’s preference for a remote hearing modality and not schedule an in-person hearing. If you experience issues with OHO scheduling in-person hearings despite the claimants’ agreement on our form to appearing via phone or OVH, please let us know immediately.

VOCATIONAL TOPICS: What to Do when the VE Testifies Based on “Their Experience”

Another VE-ism we all no doubt hear many times is they know it from “their experience.” The problem with that statement is that it is ipse dexit. It is also unverified and likely unverifiable.

Although the VE Handbook says the VE should bring their sources and be prepared to discuss them, they don’t and the ALJs don’t want them to. The VE’s memory is not more reliable than yours. Do you remember the details of cases you tried 5 years ago? And many VEs will misrepresent casual observations as a “job survey.”

So how do you deal with this statement? You want to press the VE about what that experience is. Where, when, how? I once got a VE to admit that his testimony about “his experience” that a laundry worker job would accommodate a sit/stand option was based on the total of the 10 seconds it took him to walk past the laundry room as he left his hotel that morning.

You want to demonstrate the data is unreliable – few VEs know their statistics. You also want to demonstrate memory is fallible (since they won’t produce the data). Here are some questions to ask:

• With an incidence of [number of jobs supposedly in existence], how large does a sample need to be mathematically to yield a confidence interval of 95%? (Not only can you find the formula on Wikipedia, you can find several web sites that will calculate it for you!)
• How many jobs did you personally study in forming your conclusion? That’s not enough to yield a valid prediction of the job’s requirements, is it?
• When and where did you study this occupation? No, I mean the actual dates, company/addresses, and the name of the supervisor you dealt with.
• What questions did you ask? Of whom?
• What observations of job characteristics did you record?
• Did you make a written record of the answers? Of your observations? How? Where is this record?
• Why did you study this occupation? Who paid you?
• How many occupations have you studied in your career? In the last 15 years?
• Are you referring to your records during your testimony?
• How do you make sure you are not confusing the details of one job with another?
• How many of your job studies have been reviewed and found accurate by another expert?

CASE STUDY: Cantrell v. Commissioner of Social Security

Use of SOC for Job Numbers at Step 5

Constance Sarise Cantrell v. Commissioner of Social Security, No. 4:22-cv-00229-P (N.D. Tex. March 20, 2023); Magistrate Judge’s Report and Recommendation 02/28/23; ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE 03/20/23.

The ALJ found that the claimant, an individual of advanced age, was precluded from returning to her past relevant work due to nonexertional limitations. Based upon VE testimony, the ALJ found that other work exists, in significant numbers, which she could perform. 

But the VE acknowledged that jobs are no longer counted pursuant to Dictionary of Occupational Titles (DOT) codes, but are now counted by the Bureau of Labor Statistics using the Standard Occupational Classification (SOC) codes, which generally refer to a category of jobs, rather than any particular DOT occupation. She further acknowledged that there is no method to reduce the category of jobs down to an individual DOT code, to obtain job numbers for any particular job listed in the DOT.

“Cantrell’s counsel cross examined the VE on this hypothetical:

[Mr. Honig]: Okay. Isn’t it true that there’s no governmental agency that counts jobs by DOT codes anymore?

[VE]: That’s correct.

[Mr. Honig]: Okay. And isn’t it true that jobs are now counted by the Bureau of Labor Statistics using the Occupational Employment Statistics codes, which is the same thing as the Standardized Vocational Classification Code? Is that correct?

[VE]: That is my understanding. Yes.

[Mr. Honig]: Okay. I see that the total employment for kitchen helper as of May of 2020, which is the last number I have, is 395,660 for the entire group. And you have 427, 840 for the one job, kitchen helper. So I see a discrepancy there.

[VE]: Well, yes. And what I failed to mention, Mr. Honig, is … I also use the SkillTRAN compilation estimates, too, in my estimates.

[VE]: And perhaps I had not updated within the last probably year or so. But I don’t take exception to your number. And so, even if we go with 395,000 and how many jobs are in that group right now, you’re looking at –

[Mr. Honig]: Right, but that would be –

[VE]: –because – and it doesn’t matter, but –

[Mr. Honig]: – the entire group.

[VE]: The other issue, of course, is we don’t any longer, sadly, have any way to extrapolate from those groupings of jobs how many of those numbers exist in each of those jobs. So, I think we can agree that job numbers now are kind of sometimes in a gray area, if you will. Go ahead.

[Mr. Honig]: Okay, understood. So, are you telling me that your testimony was based upon the group? Is that correct? The numbers you –

[VE]: I believe, yes.”

The Court held that the Standard Occupational Classification (SOC) can be used to determine job numbers when the VE “further adjusts the number of jobs in the broader [] category to a number that reflects the number of jobs for the cited DOT occupation and provides a reasonable basis for having done so.” Boston, 2016 WL 721563 at *11; see also Vandermark, 2015 WL 1097391, at *16 (citing multiple cases that illustrate that, “despite the lack of specificity of the [incidence data, it is possible for a VE to make a reasonable adjustment to reflect DOT-specific job numbers by calling on other available sources as well as professional experience.”); Daniels v. Colvin, No. CV 13-654 MRW, 2014 WL 794498, at *4 (C.D. Cal. 26 Feb. 2014)” … but that it is “problematic when a VE fails to “reasonably adjust” or to “make any adjustments at all in the number of jobs reported [] for a Census code to reflect the number of jobs for a specific DOT job included within that Census code.” Boston, 2016 WL 721563 at *12. It is even more problematic when the other DOT jobs included in the Census code are not jobs that the particular plaintiff may perform with his assigned RFC.”

The Court held that the VE testimony did not provide substantial evidence of the number of jobs available to Cantrell in the national economy. The decision of the Commissioner was vacated and the case was remanded for further proceedings.

For a copy of the Magistrate Judge’s Report and Recommendation, please click here.

For a copy of the Order of the District Court accepting the Magistrate Judge’s Recommendation and remanding to the Commissioner, please click here.

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.

Recent Subregulatory Changes – March 2023

SSA has issued or revised several subregulatory guidance documents that may be of note to claimants’ representatives: 

EM 23013

Issued on March 1, 2023, this EM provides background and guidance regarding retroactive District of Columbia state supplement payments that were issued to SSI recipients on March 2, 2023.

EM-20014 REV 7

This revised EM was issued on March 14, 2023 and updates the chart reflecting Pandemic-Related Assistance that meets the criteria for disaster assistance exclusions to include the following cash assistance programs: Saint Paul College Bound Boost, Evanston (Illinois) Guaranteed Income program, Chicago Resiliency Fund 2.0, and Rise Up Cambridge.  he revised EM also updates the chart reflecting Pandemic-Related Assistance that does not meet disaster assistance criteria to clarify that “hazard pay and other premium wage payments paid by employers, due to the pandemic, are subject to normal SSI income counting rules and are treated as wages.” In addition, the Maine Disaster Relief Payment amount was corrected to $285 (instead of $258) and references to AM-20016 policies and procedures for Determining Countable Earnings for Substantial Gainful Activity (SGA) Decisions were removed.  EM-20014 REV 7 replaces the prior update issued on November 29, 2022.

EM-23019

Issued on March 23, 2023, this EM notifies field office technicians and DDS adjudicators about updates for processing Expedited Reinstatement (EXR) denial notices. “Previously, when DDS denied a request for EXR, FO technicians prepared and sent the denial notice and included a Personalized Disability Explanation (PDE) provided by DDS.  Effective March 25, 2023, FO technicians will no longer send the denial notice and PDE.  Disability Case Processing System (DCPS) changes now allow the DDS adjudicators to automatically send the denial notice.”

EM-23021

Issued on March 27, 2023, this EM provides instructions based on the Second Circuit’s decision in Sczepanski v. Saul, 946 F.3d 152 (2020), in which the Court of Appeals held that the claimant’s ability to complete a probationary period is relevant to whether the claimant can perform significant numbers of jobs in the national economy at step five.  In Sczepanski, the RFC included a limitation that the claimant could miss up to one day of work per month. At the hearing, the VE testified that a typical employer would tolerate missing up to two days per month over the course of employment, but no absences are usually tolerated during probationary periods at the start of employment. The ALJ then issued a decision finding the claimant not disabled based on the ability to perform other work at step five and the Second Circuit reversed and remanded for further proceedings.  EM-23021 instructs all adjudicators and reviewers at DDS, OHO, and OAO to identify and code cases where the claimant resides in Connecticut, New York, or Vermont, and the record contains vocational evidence that the occupation(s) identified at step five require probationary periods where work demands during the probationary period exceed the claimant’s RFC. The EM also provides instructions for other agency staff at field offices, workload support units, payment centers, etc. to use when coding cases for claimants who self-identify their cases as meeting the Sczepanski criteria.  Notably, the EM directs identification and coding of appropriate cases while the agency evaluates whether to publish an Acquiescence Ruling; it does not change existing adjudication policy. 

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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 – March 2023

Resource	URL
Latest Caseload Analysis Report (CAR) for the month of February 2023	https://www.ssa.gov/foia/resources/proactivedisclosure/2023/CAR%20February%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