NOSSCR Comments on Direct Payments to Entities

As NOSSCR previously noted, SSA published a Proposed Rule to the Federal Register regarding Changes to the Administrative Rules for Claimant Representation and Provisions for Direct Payment to Entities.

NOSSCR applauds this step to permit direct payment to entities with salaried employees who perform appointed representational services in matters before the agency. We have advocated on this front for many years. 

However, we feel these proposed changes lack the clarity and specificity to fully improve the process.  You can read our official comments here. 

We encourage you to mindfully consider the proposed changes and submit your own comments prior to the October 3, 2023,comment submission deadline.

NOSSCR News

Board of Directors Meeting

The Board of Directors met on September 14, 2023, with some members attending in person in our D.C. office and others attending remotely via Zoom. Twenty-three members were present, constituting a quorum. Also present as guests were NOSSCR staff David Camp, Laura Beth Waller, Jennifer Cronenberg, and Betsy Osborn.

The minutes from the July meeting were approved, and the committees were ratified. When officers change on January 1, 2024, Ted Norwood, who moved from an Eighth Circuit to an at-large seat, will serve as Secretary, Rob Wendt as Treasurer, Paul Burkhalter as President-Elect, and Rick Fleming as President. Christine Burnside filled the 4th Circuit Representative seat vacated by Laura Beth Waller.

The Board discussed clarifying when a departing Board member’s term ends. The Board voted that unless otherwise specified in NOSSCR’s bylaws, a Board member’s term ends by declining to run for reelection, losing an election, or resigning. Unless determined by Article VI, Section 7 (Resignation or Removal), the last day of the departing Board member’s term is the date before the next scheduled meeting of the Board of Directors.

The Board voted to increase membership dues. Effective January 1, 2024, dues will increase to $250 for emeritus and nonprofit members, $300 for new members, $450 for regular members, and $600 for sustaining members.

The Board discussed celebrating NOSSCR’s 45th anniversary at the May 2024 conference in Nashville. The Board directed that NOSSCR staff work on options for refreshed NOSSCR branding. The Board also voted to hold the 2026 conference in Boston, Chicago, or San Diego, with the final city to be determined by a membership vote.

The Board ratified the Executive Committee’s extension of David Camp’s contract as Interim CEO through May 2024.

The Board received updates on NOSSCR’s staffing changes, financial position, cost-saving measures implemented, opportunities for revenue and growth, formalizing procedures and relationships, upcoming events and conferences, the referral service, governmental advocacy efforts, and interfacing with the Social Security Administration.

The Board will hold its next meeting on March 5, 2024, in person in our D.C. office, with the option to attend remotely via Zoom.

Updates to Referral Service

Participation in NOSSCR’s Referral Service is a benefit of NOSSCR membership. The NOSSCR Referral Service number is published in correspondence sent to unrepresented claimants confirming their request for a hearing. When a claimant calls the Referral Service number, they are routed to a NOSSCR member based on that member’s participation in the Referral Service and selection of the area code from which the claimant calls. We anticipate a relaunch of NOSSCR’s Referral Service soon, and participants will need to reenroll. More information will be posted to NOSSCR’s website as it becomes available.

Preview of iSSI Application Process

The comment period for SSA’s proposed first phase of the iSSI application process rollout remains open until October 10, 2023.

Our friends at Justice in Aging kindly shared these draft screens (provided by the agency) showing how this online iSSI application will likely appear. We encourage you to review these screens as you consider the official language in SSA’s published collection package and prepare your own comments for submission.

NOSSCR’s official comments will be posted soon.

Update on Protecting Foster Children’s Benefits from State Seizure

NPR provides an update about the progress that has been made nationwide to ensure that SSI benefits, intended for eligible children who are in foster care, are not seized by the state.

A 2021 “NPR/Marshall Project investigation found that in at least 49 states and the District of Columbia,” when children enter foster care, welfare agencies look for which children receive or are eligible to receive SSI benefits. The state agencies then routinely seize the SSI benefits, frequently without telling the child or family, as claimed reimbursement for the costs of foster care.

However, as the report revealed, “governments already have an obligation to pay the costs of foster care under state and federal laws. The result is that only impoverished kids, who receive Social Security benefits because they’re orphans or because they’re disabled or their parents are disabled, get a bill for their own foster care” while other children do not.

Because of this investigation, “15 states and cities have taken steps to preserve the money of foster youth. Several other state legislatures are considering similar laws.” However, as the article details, there is still work to be done. Last month, SSA issued guidance to state and tribal foster care agencies regarding the representative payee program, but they stopped short of banning the use of SSI funds for foster care.

NOSSCR always advocates for the protection of our most vulnerable claimants and encourages you to reach out to your state and federal elected representatives to encourage them to enact meaningful change to protect SSI-eligible children in the foster care system.

DIRECTOR PROFILE: Christine Burnside

Below is a brief Q&A with a member of NOSSCR’s Board of Directors, 4th Circuit Representative Christine Burnside.

Christine Burnside grew up in Wilmington, NC before attending UNC Chapel Hill for both undergrad and law school. She graduated from UNC Law in 2012 and began practicing Social Security law at the Deuterman Law Group the same year.

Christine has been certified by the North Carolina Bar Board of Legal Specialization as a specialist in Social Security disability law since 2019.  Christine is passionate about helping her clients and mentoring newer claimants’ reps.

She is proud to serve as a co-chair of NOSSCR NextGen, and was recently elected to the NOSSCR Board of Directors as a NOSSCR Fourth Circuit Representative.

What’s the best book you’ve read lately?

I read exclusively fantasy with an occasional cozy mystery thrown in, and I’m a few books behind my Goodreads goal of 75 books in 2023. If I had to choose one from 2023 to recommend, it would be the Shades of Magic series by V.E. Schwab.

What’s your favorite hobby?

I love to act and I participate in community theatre when I have the time. I’m performing in a short play called Trance Formation during Triad Playwrights Theatre’s Short Play Festival in October.  

What type of food could you eat every day? 

Food that I’m not responsible for cooking!

When you were a kid, did you want to be a lawyer when you grew up? If not, what did you want to be?

I wanted to be a lawyer for most of my childhood, maybe it was growing up in the town where Matlock was filmed? I joined my high school’s mock trial team in the first few weeks of my freshman year and I’ve never looked back.

What’s something special to you about NOSSCR or Social Security disability law? 

I feel truly privileged to practice Social Security disability law because we get to see the difference that we make in our clients’ lives on a daily basis. Its not an abstract difference, it is a concrete change- sometimes it is only our zealous advocacy that stands between a client and homelessness. I work in a high volume firm and the pace of my work can feel stressful, but the impact that I can make in my client’s life makes it all worth it. 

DIRECTOR PROFILE: Ted Norwood

Below is a brief Q&A with a member of NOSSCR’s Board of Directors, At-Large Representative Ted Norwood.

I am the Chief Legal Officer for Integrated Benefits, Inc. (IBI). We focus on helping people get public disability benefits while they also receive private disability benefits, usually through employers. I also have a separate practice for appealing cases to court and representing claimants without private disability insurance.

I graduated from St. Louis University (Go, Billikens!) and the University of Missouri-Columbia Law School. I live in St. Louis, MO with my wife, Robin, and our daughters Lucy (6) and Heidi (4).

What’s the best book you’ve read lately?

Although I mostly read children’s books, I really enjoyed God’s Shadow: The Ottoman Sultan Who Shaped the World by Alan Mikhail and What If: Serious Scientific Answers to Absurd Hypothetical Questions by Randall Munroe.

What’s your favorite hobby?

My favorite hobby is basketball, but as I get older, I’m transitioning to easier sports like racquetball and golf.

What type of food could you eat every day? 

I’ve never been tired of pizza at any point in my life. I’m open to pizza of all kinds, and the only common topping I don’t like is anchovies.

When you were a kid, did you want to be a lawyer when you grew up? If not, what did you want to be?

I knew I wanted to be a lawyer before I went to high school. Before that, I wanted to be a marine biologist.

What’s something special to you about NOSSCR or Social Security disability law? 

SSDI is special to me for my clients. I grew up benefitting from survivor benefits, and I really believe in the disability program. Disability can strike anyone, and it shouldn’t sentence them to poverty. It is a societal belief that isn’t always easy or cheap, but it is worthwhile for the individuals and beneficial for the economy overall.

PIEMONTE’S PERSPECTIVE: VE Qualifications

Frequently, early in a hearing an ALJ will ask something along the lines of “Do you stipulate to the qualifications of the VE?”

The problem is that the regulations do not establish that any qualifications exist. The ALJ can call a dog as a witness if they want.

So how do you deal with “Do you stipulate to the qualifications of the VE?”?

You respond with one of the following:

• I have no objection to him testifying, but I may object to his testimony.

• I am aware of no regulation that would preclude her testimony.

• I will stipulate that she has met the Social Security Administration’s requirements to testify.

You can, and should, voir dire the VE and ask them the following questions:

• Are you familiar with the requirements of the VE Handbook (2020)?
  • So, you know you must cite, explain, and furnish any sources you rely on?
    • Did you bring them, and are you prepared to furnish them?
      
• You have current knowledge of and experience with occupational trends?
  • How recently have you placed disabled workers in jobs? How many?
    
• Do you have a graduate degree in vocational rehabilitation?
  
• Are you a certified rehabilitation counselor?
  
• Are you qualified as a labor market statistician? What are your qualifications?

Bear in mind that if you answer “Yes” to the question “Do you stipulate to the qualifications of the VE?”, you have shut the door on your ability to challenge those qualifications later in the hearing or post-hearing.

What’s Happening in the 7th Circuit – August 2023 Edition

The Court decided three Social Security cases in August. Unfortunately, its deferential trend continued and all were affirmations:

Diaz v. Kijakazi (affirmed, unpublished)

Judges Sykes, Rovner, and Wood
August 16, 2023

Diaz’s 2006 SSI claim based on bipolar disorder was the subject of six ALJ hearings and several remands, including at least one from district court. She was eventually approved with an onset date in 2016, but 10 years of benefits remained at issue. Along the way, a consultative psychologist opined that Diaz has a markedly restricted ability to interact appropriately with coworkers and supervisors and seems to be intolerant of routine stress but capable of adapting to changes. The latest ALJ rejected the opinions about stress intolerance and interaction limitations.

The ALJ cited non-mental health providers’ exam observations, did not defer to the CE as an examining physician, and relied on findings about judgment and appearance to reject Diaz’ stress intolerance. The Court said “the question is close” but affirmed. And it was sufficient for the ALJ to reject the interaction limitations where Diaz interacted appropriately with her doctors, declined anger management, and improved with medication. The Court also believed the ALJ accounted for the difference between cooperating with a doctor and cooperating at work by limiting Diaz to occasional workplace interactions. While the ALJ cited other grounds that were insufficient, including that the opinion depends on Diaz’ subjective statements, the Court affirmed “even though ‘reasonable minds’ might have reached a different outcome.”

Buttles v. Kijakazi (affirmed, unpublished)

Judges Wood, Hamilton, and Kirsch
August 15, 2023

Nine years before applying for DIB, a heavy crate of cucumbers fell on Buttles while she was working at a grocery store. After undergoing surgery to remove a portion of her collar bone, trying various other treatments, and attempting a new job, Buttles sought DIB due to serious restrictions using her arms and difficulty concentrating. After a series of two applications, three ALJ hearings, and one district court remand, the Seventh Circuit declined to give Buttles “one more chance to make her case” after an ALJ failed to discuss one doctor’s report.

Five years after Buttles’ date last insured, an examining neuropsychologist opined that she has ADHD, learning problems, depression, and anxiety; that her condition deteriorated over the previous five years; and that overall she is “very very limited,” likely unable to work, and disability benefits would be appropriate. The ALJ did not consider this examination at all, but the Court affirmed because the ALJ otherwise “relied on treatment notes” and one psychiatrist’s exam prior to the DLI. Regarding physical restrictions, it was sufficient that the ALJ “discussed” and “justified” her evaluation of the evidence.

Case v. Kijakazi (affirmed, unpublished)

Judges Ripple, St. Eve, and Pryor
August 1, 2023

In response to a hypothetical question reflecting Case’s RFC, a vocational expert identified three DOT codes comprising estimates of nearly 500,000 jobs. On cross examination, the VE testified to use of “SkillTRAN numbers” that allocate job estimates from Standard Occupational Codes (SOC) to each DOT title, but could not describe the allocation factors or formulas used by SkillTRAN. The ALJ inquired further, and the VE explained that he relied on SkillTRAN to estimate the availability of jobs in the national economy based on government survey data, described his analysis “in very broad strokes,” and explained that he relied on four decades of research and job counseling experience and observations to determine that the SkillTRAN estimates seemed reasonable.

“The inability of the vocational expert to precisely explain the software’s algorithms does not render his explanation unreliable.” The Court agreed that the VE could have explained SkillTRAN’s methodology more clearly and that the ALJ could have pushed “for more specific, responsive answers.” But the ALJ posed some inquiries before relying on the VE’s testimony and it was permissible for the ALJ to find the VE’s use of SkillTRAN and his prior experience produced sufficiently reliable estimates.

CA Reps File Grievance Against CE Edie Glantz

Bay Area Legal Aid, the Homeless Action Center, and the Law Office of Katherine Siegfried filed a formal grievance against consultative examiner Dr. Edie Glantz, MD, with California’s Department of Social Services Disability Determination Services on September 15, 2023.

BayLegal alleges that it investigated 32 consultative examination reports by Dr. Glantz and observed patterns of short, cursory examinations, ignoring self-reports and available records, and using boilerplate language contradictory to other medical evidence in the record. The grievance details, for example, Dr. Glantz finding no limitations in fine motor control or fingering for a claimant with an amputated finger.

The grievance asks that DDS suspend referrals to Dr. Glantz during the pendency of the investigation and instruct DDS analysts to give Dr. Glatz’s opinions no weight when those reports are in the evidence.

This is the second grievance about a consultative examiner by Bay Area Legal Aid, having filed a complaint against Dr. Aparna Dixit, PsyD, in January 2023.

For a copy of these grievances, please contact Emily Juneau at ejuneau@baylegal.org or Steve Weiss sweiss@baylegal.org.

LEGISLATIVE SPOTLIGHT: SSI Savings Penalty Elimination Act

On September 12, 2023, Sen. Ron Wyden (D-OR), Sen. Sherrod Brown (D-OH), and Sen. Bill Cassidy (R-LA) introduced S. 2767, the SSI Savings Penalty Elimination Act. Rep. Brian Higgins (D-NY) introduced an identical bill in the House, H.R. 5408, on the same day. S. 2767 has five cosponsors, three of which are Republicans and two of which are Democrats. H.R. 5408 has one Republican cosponsor. S. 2767 has been referred to the Senate Committee on Finance, and H.R. 5408 has been referred to the House Committee on Ways and Means.

Bill Summary

The SSI Savings Penalty Elimination Act would update SSI’s asset limits, which have not been changed since 1984. Currently, the asset limit for individuals receiving benefits is $2,000; for married couples, the limit is $3,000. This legislation would raise the caps to $10,000 for individuals and $20,000 for couples, and index them to inflation moving forward. NOSSCR supports this legislation.

Bill Details

SECTION 1. SHORT TITLE.

This Act may be cited as the “SSI Savings Penalty Elimination Act”.

SEC. 2. UPDATE IN ELIGIBILITY FOR THE SUPPLEMENTAL SECURITY INCOME PROGRAM.

(a) Update In Resource Limit For Individuals And Couples.—Section 1611(a)(3) of such Act (42 U.S.C. 1382(a)(3)) is amended—

(1) in subparagraph (A), by striking “$2,250” and all that follows through the end of the subparagraph and inserting “$20,000 in calendar year 2023, and shall be increased as described in section 1617(d) for each subsequent calendar year.”; and

(2) in subparagraph (B), by striking “$1,500” and all that follows through the end of the subparagraph and inserting “$10,000 in calendar year 2023, and shall be increased as described in section 1617(d) for each subsequent calendar year.”.

(b) Inflation Adjustment.—Section 1617 of such Act (42 U.S.C. 1382f) is amended—

(1) in the section heading, by inserting “; INFLATION ADJUSTMENT” after “BENEFITS”; and

(2) by adding at the end the following:

“(d) In the case of any calendar year after 2023, each of the amounts specified in section 1611(a)(3) shall be increased by multiplying each such amount by the quotient (not less than 1) obtained by dividing—

“(1) the average of the consumer price index for all urban consumers (all items; United States city average, as published by the Bureau of Labor Statistics of the Department of Labor) for the 12-month period ending with September of the preceding calendar year, by

“(2) such average for the 12-month period ending with September 2022.”

SSA/Administrative Updates

What it means if you receive the “paper claim” message after electronic filing:

We have received several reports of representatives receiving a “paper claim” message after filing a claim electronically. NOSSCR checked with SSA, and they report the following regarding the issue:

“When representatives receive the “paper claim” message, it means that the claim has not been transferred out of the local field office (FO). Our system is designed to update the status to “electronic” after the claim is transferred from the local FO to DDS or OHO.

When this occurs, please advise representatives to follow up with the claimant or local office to determine what development is pending or if the case has been closed out or denied for other reasons (if the representative was added to the claim prior to the determination, they should have received a notice). Once the claim is transferred to DDS or OHO, the representative should be able to access the electronic folder for the claim.”

Hopefully this helps to clarify what is happening with these claims.  Please know that NOSSCR continues to advocate for the availability of accurate electronic status updates at all levels of the disability claim.

Enhanced Representative Availability Process (ERAP) Deadline Reminder:

As we noted in our recent member email, the deadline for the creation of a Designated Scheduling Group (DSG) for the new Enhanced Representative Availability Process (ERAP) scheduling system was September 22, 2023.  If you missed this deadline, we encourage you to reach out to the External Liaison Unit (ELU) immediately for assistance. The deadline to submit your availability for March 2024 hearings is October 1, 2023. 

NOSSCR continues to communicate directly with OHO regarding the rollout of the ERAP system.  As March will be the first month where everyone is scheduled under the ERAP system, we encourage members to reach out to us with issues so that we can gather data and advocate for needed improvements.

SSA Federal Register Comment Period Deadlines:

Please be reminded that the following Proposed Rules/Requests are closing for comments soon:

Changes to the Administrative Rules for Claimant Representation and Provisions for Direct Payment to Entities – Deadline for comments: 10/3/2023

Agency Information Collection Activities: Proposed Request (Social Security Income Simplification Process Phase I (iSSI)) – Deadline for comments: 10/10/2023

Expansion of the Rental Subsidy Policy for Supplemental Security Income (SSI) Applicants and Recipients – Deadline for comments: 10/23/2023

NOSSCR will be submitting and releasing our official comments for all of these proposed changes.  We encourage our members to thoughtfully review these proposed changes and submit your own comments as well. 

PAC Contributor List – September 2023

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS!

List includes all donors from 2023

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

Useful Resources – September 2023