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Disability Law News – Bulletin Board

Posted on April 28th, 2022

This “Bulletin Board” contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit.

We will continue to write more detailed articles about significant decisions as they are issued by these and other Courts, but we hope that this list will help advocates gain an overview of the body of recent judicial decisions that are important in our judicial circuit.

SUPREME COURT DECISIONS

Carr v. Saul, 141 S.Ct. 1352 (Apr. 22, 2021)

The Supreme Court held that a claimant is not precluded from raising a legal issue for the first time in U.S. District Court if it was not raised before the Administrative Law Judge (ALJ).  The underlying issue in question in Carr and its companion cases was whether the ALJ was properly appointed under the Appointments Clause of the U.S. Constitution. In the aftermath of Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018) challenging the constitutionality of SEC ALJs, Carr and other plaintiffs challenged the legitimacy of the ALJs who had denied their disability claims and sought new hearings. The Commissioner argued the plaintiffs had forfeited their Appointments Clause challenges because they had not raised them before SSA during the administrative appeals process. The Supreme Court resolved a conflict in the circuits by holding that given the non-adversarial nature of SSA hearings, issue-exhaustion is not required.

 

Smith v. Berryhill, 139 S.Ct. 1765 (2019)

The Supreme Court held that an Appeals Council dismissal of a request for review is a final decision subject to judicial review.  The Court unanimously held that where the     Appeals Council has dismissed a request for review as  untimely after a claimant has obtained a hearing from an ALJ on the merits, the dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of 42 U.S.C § 405(g). It distinguished its earlier ruling in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), by emphasizing that as opposed to the denial of a request for reopening in Sanders, there had been a decision by an ALJ on the merits of the plaintiff’s claim.

 

Biestek v. Berryhill, 139 S.Ct. 1148 (2019)

In a 6-3 decision, the Court declined to adopt a categorical rule that a vocational expert’s supporting data must be provided in order for the testimony to constitute substantial evidence. But the majority acknowledged that in some cases it may be possible to draw an adverse inference against a VE who refuses to provide supporting data.

 

Astrue v. Capato, ex rel. B.N.C., 132 S.Ct. 2021 (2012)

A unanimous Supreme Court upheld SSA’s denial of survivors’ benefits to posthumously conceived twins because their home state of Florida does not allow them to inherit through intestate succession.  The Court relied on Section 416(h) of the Social Security Act, which requires, inter alia, that an applicant must be eligible to inherit the      insured’s personal property under state law in order to be eligible for benefits. In rejecting Capato’s argument that the children, conceived by in vitro fertilization after her husband’s death, fit the definition of child in Section 416(e), the Court deferred to SSA’s interpretation of the Act.

 

Barnhart v. Thomas, 124 S. Ct. 376 (2003)

The Supreme Court upheld SSA’s determination that it can find a claimant not disabled at Step Four of the sequential evaluation without investigation whether her past relevant work actually exists in significant numbers in the national economy.  A unanimous Court deferred to the Commissioner’s interpretation that an ability to return to past relevant work can be the basis for a denial, even if the job is now obsolete and the claimant could otherwise prevail at Step Five (the “grids”).  Adopted by SSA as AR 05-1c.

 

Barnhart v. Walton, 122 S. Ct. 1265 (2002)

The Supreme Court affirmed SSA’s policy of denying SSD and SSI benefits to claimants who return to work and engage in substantial gainful activity (SGA) prior to adjudication of disability within 12 months of onset of disability.  The unanimous decision held that the 12-month durational requirement applies to the inability to engage in SGA as well as the underlying impairment itself.

 

Sims v. Apfel, 120 S. Ct. 2080 (2000)

The Supreme Court held that a Social Security or SSI claimant need not raise an issue before the Appeals Council in order to assert the issue in District Court.  The Supreme Court explicitly limited its holding to failure to “exhaust” an issue with the Appeals Council and left open the possibility that one might be precluded from raising an issue.

 

Forney v. Apfel, 118 S. Ct. 1984 (1998)

The Supreme Court finally held that individual disability claimants, like the government, can appeal from District Court remand orders.  In Sullivan v. Finkelstein, the Supreme Court held that remand orders under 42 U.S.C. 405(g) can constitute final judgments which are appealable to circuit courts.  In that case the government was appealing the remand order.

 

Shalala v. Schaefer, 113 S. Ct. 2625 (1993)

The Court unanimously held that a final judgment for purposes of an EAJA petition in a Social Security case involving a remand is a judgment “entered by a Court of law and does not encompass decisions rendered by an administrative agency.”  The Court, however, further complicated the issue by distinguishing between 42 USC §405(g) sentence four remands and sentence six remands.

 

SECOND CIRCUIT DECISIONS

Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022)

The court remanded, finding the ALJ erred in failing to accord controlling weight to the opinion of the treating physician under the pre 2017 opinion evidence regulations that applied in this case. The court held the ALJ failed to find good reasons under the old regulations for discounting the opinion of a concussion specialist that the plaintiff would be off task 33% of the day and absent more than four days per month due to her headaches and other impairments. The ALJ also erred in discounting the opinion because it was presented in “check box” form; the opinion was supported by voluminous treatment notes. The court criticized the ALJ for “cherry-picking” particular instances of improvement to create inconsistencies with the treating source opinion. And it criticized the ALJ for relying too heavily on the opinions of consulting physicians, particularly where the consulting opinions did not address or dispute the crux of the treating source’s opinion.

 

Alexander v. Saul, 5 F.4th 139 (2d Cir. July 8, 2021)

The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).

 

Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020)

The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.

 

Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019),

The Court of Appeals endorsed in strong terms the value of treating source evidence and affirmed its prior treating physician rule cases.  The court faulted the ALJ for failing to consider explicitly the Burgess factors incorporated into the former opinion evidence regulations, which were replaced in 2017 by 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The new regulations were not considered by the court.

 

Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT).  The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 

Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)

 The Court of Appeals remanded for consideration of a  retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.”

 

Greek v. Colvin, 802 F.3d 370 (2d Cir 2015)

The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. “After all, SSA’s regulations provide a very specific process for evaluating a treating physician’s opinion and instruct ALJs to give such opinions ‘controlling weight’ in all but a limited range of circumstances.  See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128.” (Emphasis supplied.)

 

McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)

The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s non-exertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ’s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations.  The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.

 

Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)

The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand.  In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed  explicitly.

 

Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)

 The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records.

The Court also held the ALJ’s RFC determination was not supported by substantial evidence.  It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.”  Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain or depression were significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.

 

Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)

The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.

 

Lockwood v. Comm’r of SSA914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 


Federal EAJA Hourly Rates – March 1996 Through March 2022

Posted on April 19th, 2022

 

Federal Equal Access to Justice (EAJA) rate charts (pdf)and spreadsheets (Microsoft Excel), have been updated for through March 2022.

Supporting Documents:

Federal EAJA Hourly Rates – March 1996 through March 2022 (Pdf)

Federal EAJA Hourly Rates – March 1996 through March 2022 (Excel)


Medicare Hikes Announced

Posted on January 30th, 2022

In the October newsletter, we announced historic cost of living increases (COLA) to Social Security benefits and Supplemental Security Income federal benefit rates. The new rates are listed in SSA’s  SSA’s Fact Sheet on 2022 Social Security Changes.  The changes in the federal benefit rate are also reflected in the yearly SSI payment chart published by NYS Office of Temporary and Disability Assistance (OTDA).

 

We noted that 2022 Medicare changes would be posted by the Centers for Medicare and Medicaid (CMS) at www.medicare.gov. CMS recently posted the new Medicare rates, which also unfortunately appear to be historic increases. The Part B monthly premium, most relevant to DAP Clients, is set to increase in 2022 from $148.50 to $170.10. The premium rise is capped for lower-amount beneficiaries whose premium payment are deducted from their Social Security benefits to prevent benefit amounts from dropping below the 2021 payment level. The premium rises, however, the more income the beneficiary receives. The deductible for Part B Medicare is also increasing from $203 to $233 annually.

 

When announcing the rate increases, CMS attributed the increases at least in part to the high costs associated with Aduhelm, the controversial new Alzheimer drug.  But on January 10th, Secretary of Health and Human Services (HHS) Xavier Beccera ordered CMS to reassess the 2022 Medicare increases based on a dramatic January 1st 50% price drop of Aduhelm. According to Secretary Becerra, “there is a compelling basis for CMS to reconsider the previous recommendation.”

 

At the time of publication of this newsletter, it remains unclear if and how the 2022 Medicare rates will be changed. But in a further development, on January 11th, CMS announced its preliminary decision that it will only cover the costs of Aduhelm for patients in approved clinical trials.  CMS will provide a thirty-day comment period before the decision is finalized.

 


SSA to Reopen Pandemic Assistance Cases

Posted on January 30th, 2022

Over the course of the current pandemic period, many concerns have arisen about how several types of COVID-19 disaster assistance are treated when determining countable income or resources for Supplemental Security Income (SSI).  After changing its policy to exclude a broad array of disaster assistance, on December 9, 2021, SSA announced procedures to reopen hundreds of thousands of cases that had previously been denied prior to the change in policy. Emergency Message (EM) 20169, Instructions for Reopening and Reevaluating SSI Claims Denied due to COVID-19 Disaster Assistance. Claimants denied based on the receipt of disaster assistance will have the opportunity to see their claims reopened and reevaluated.

 

On July 23, 2021, SSA had issued EM 20014 (later updated to EM-20014 REV 4), Effect of COVID-19-Related Financial Assistance on SSI Income and Resources, which broadly expanded what SSA considered disaster assistance.  Among the types of assistance determined to meet the criteria for disaster assistance are both “regular” unemployment benefits and expanded or supplemental forms of unemployment such as Federal Pandemic Unemployment Compensation (FPUC) benefits and Lost Wage Assistance that are received during the pandemic period. In New York State, the pandemic period is defined as beginning in March 2020 and ongoing. For more guidance, see also EM-21050, Special Processing Instructions for Applying Supplemental Security Income (SSI) Income and Resource Exclusions to Pandemic-related Disaster Assistance.

 

The July 2021 issue of this newsletter has more details. As reported in October 2021, senior staff at SSA later reported to advocates that the agency has automatically processed and issued retroactive benefits to claimants previously underpaid due to receipt of pandemic assistance.

 

With the latest steps in EM-21069, SSA is addressing cases where a person was denied and where redress did not happen automatically because the case was closed.   SSA will send outreach mailers to approximately 144,000 individuals instructing them to contact SSA for reevaluation of their eligibility for SSI.  Mailers will issue to cases coded as having certain kinds of financial assistance. Denials may be reopened and revised within one year for any reason, and within two years for “good cause.” All these denials qualify for a “good cause” reopening under “an error on the face of the evidence” as described in POMS SI 04070.010.

 

There is no deadline by which individuals must respond and a person need not be identified or targeted with a mailer in order to qualify.  The EM states that “cases may remain reopened indefinitely, until resolved.”

 

Advocates should be aware that they will likely not receive notice after a denied claim.  There are exceptions for instances where the representative is requesting the reopening, or when there is other indication that they are still engaged in representation. The general policy, however, is that SSA will not honor as ongoing a prior representation in a claim denied since March 2020; the agency will require new authorization from the claimant and updated forms.

 

While the policy is welcome, remedying the cases of those previously denied remains an area of concern.  Advocates already report cases where this EM is not being properly applied, with eligible claimants being denied reinstatement by the field office and told instead to reapply, requiring additional advocacy by their representatives and in some instances intervention by SSA Regional Office staff.   Michelle Spadafore of NYLAG is tracking the implementation of the new rules and whether they are being applied correctly.  If you have any examples of these types of cases – both successful and unsuccessful – please share with her at mspadafore@nylag.org.

 

Curious to see more EMs? They are published periodically and available here.

 


Goldberg Kelly Payments Extended

Posted on January 30th, 2022

Supplement Security Income (SSI) advocates and claimants have long complained of the systemic failures by the Social Security Administration (SSA) to process non-disability appeals, and the especially harmful effects on SSI recipients.  A new policy is aimed at improving one aspect, to extend the period for requesting continuation of benefits from 15 to 65 days following the receipt of the notice of adverse action.

 

On October 29, 2021, SSA issued Emergency Message (EM) 21064, Goldberg Kelly Payment Continuation Period, establishing a new timeframe for ensuring the continuation of benefits during the pendency of an appeal of a suspension or reduction of SSI benefits.  Payment continuation during an SSI non-disability appeal is known as Goldberg Kelly benefits, after the Supreme Court case that established the right to advance notice of adverse action.  Under SSA’s regulations, 20 C.F.R. § 416.1336, SSI benefits are continued at the same level if a person appeals within 10 days of receiving notice of the suspension or reduction of benefits.  Because SSA assumes a person received a notice five days after the date, this period is essentially 15 days from the date on the notice.

 

The deadlines provided in the regulations have not changed, but the new EM permits more time by using an automatic finding of good cause based on the agency’s difficulty processing submissions in a timely manner.  The EM acknowledges that COVID-19 has presented significant challenges for the SSI population to file appeals – including field office closures and mail problems.  It adds that “[t]hese and other workload-related challenges have also affected our ability to efficiently and timely process a request for reconsideration and ensure that we protect a recipient’s constitutional due process right to [Goldberg Kelly] payment continuation.” Although the EM has a retention date of April 29, 2022, SSA recognized that the challenges “will continue to affect our ability [sic] timely process requests for [Goldberg Kelly] payment continuation even after the end of the COVID-19 national public health emergency.”

 

EM-21064 instructs that unless Goldberg Kelly continuation is waived in writing, staff must continue benefits by automatically finding good cause if an appeal was filed after 15 days but by 65 days after the notice. After 65 days, SSA must develop for good cause rather than find it automatically.

 

As reported in our last newsletter, SSA had recently made other enhancements aimed at improving the processing of non-disability appeals or that enhanced processes directly related to that workload.  In issuing EM-21051-REV, Mandating Use of the Dallas Appeals Application for Non-Medical Post Eligibility Supplemental Security Income Reconsideration Requests on August 2, 2021, SSA mandated use of the Dallas Appeals Application in all non-medical appeals.  The application, also known as “Banana,” streamlines the amount of manual entry required to keep benefits continuing or to stop overpayment recovery. EM-21062, issued September 21, 2021, allows for better tracking and prioritizing of non-disability appeals in WorkTrack, where all submissions are reviewed and processed, by requiring these particular filings to be profiled and coded as either non-medical or medical reconsideration requests.

 

These systems changes, together with the extended Goldberg Kelly period, should address some of the technical obstacles to timely processing, as well as the insufficient timeframes provided under current regulations.  These are promising and necessary improvements, but as acknowledged by SSA, the challenges involved are expected to persist beyond COVID-19.  Without more resources to devote to processing submissions at the field office level, claimants will likely continue facing difficulty ensuring their appeals are timely processed and without undue disruption in benefits.

 


SCOTUS Hears Puerto Rico SSI Case

Posted on January 30th, 2022

On November 9, 2021, the U.S. Supreme Court heard arguments in U.S v. Vaello Madero (No. 20-303), a case challenging the exclusion of residents of Puerto Rico from the Social Security Administration’s Supplemental Security Income (SSI) program.  Based on the questioning that took place at oral argument, a majority of the Court Justices appear prepared to uphold SSI’s restriction to only the residents of the 50 states plus the District of Columbia and the Northern Mariana Islands.

 

The Supreme Court appears poised to overturn the First Circuit’s decision in Vaello-Madero, 956 F.3d 12 (1st Cir. Apr. 10, 2020), which ruled that the exclusion of Puerto Rico from SSI was an equal protection violation under the due process clause of the Fifth Amendment to the U.S. Constitution. In addition to affecting an estimated 700,000 residents of Puerto Rico, the Supreme Court’s decision is expected to also impact eligibility in other territories excluded from SSI: Guam, the Virgin Islands, and American Samoa.  The First Circuit case was discussed in the April 2020 issue of this newsletter.

 

Many had criticized the Administration’s litigation position as “disturbing” given the policy’s racist origins in the Insular Cases, a line of caselaw that sanctioned the colonial relationship of the U.S. to the territories. The Department of Justice chose to defend the case, which had been appealed under the Trump Administration, even though President Biden had campaigned against Puerto Rico’s exclusion from SSI.

 

Rather than withdraw the petition for certiorari, President Biden instead called on Congress to amend the Social Security Act to extend SSI eligibility to Puerto Rico. HR 2713/S. 1228, the Territorial Equity Act, would extend SSI and other benefits to Puerto Rico and other territories.  Most recently, the provision in Build Back Better would have done the same.  But as this newsletter went to press, Build Back Better legislation appeared to have stalled because it was not believed that it would pass the Senate.

 

Sotomayor expressed the most serious concerns about the policy.  “Puerto Ricans are citizens, and the Constitution applies to them.”  She urged the court to review the policy in the context of the history of Puerto Rico’s discriminatory treatment by the U.S. government, including the history of the Insular Cases.  Experts note that the impact of SSI exclusion is especially severe given the higher rate of disability and poverty in Puerto Rico compared to U.S. states, and that there is racially disparate impact because it has a majority Latinx and Black population.

 

The Deputy Solicitor General responded to questions about the Insular Cases by stating that “some of the reasoning and rhetoric [in the Insular Cases ] is obviously anathema,” but that “the conclusion that parts of the Constitution wouldn’t apply to Puerto Rico doesn’t decide anything that is relevant in this case.”

 

Justice Brett Kavanaugh expressed the view that Vaello-Madero made “compelling policy arguments” but suggested that the solution should come from Congress.  He was unconvinced that the Constitution required states and territories should always be on equal footing.  He believed the territories clause of the Constitution authorizes Congress to regulate U.S. territories as it sees fit, even if those regulations “may seem anachronistic to some,” Kavanaugh said.

 

The Deputy Solicitor General insisted that the SSI exclusion is based on geography, not race or ethnicity.  As in its briefing, the government insisted the exclusion was based on tax status, a position that Justices Sotomayor and Stephen Breyer appeared to find baseless.

 

The First Circuit decision had found it salient that the Mariana Islands were included in the SSI program, and that their inclusion signaled a discriminatory basis for excluding the other territories.  This point appeared to be overshadowed during the Supreme Court argument by the concern that a ruling requiring all states and territories be treated similarly would result in the expansion of numerous federal benefit programs.

 

Counsel for Vaello-Madero attempted to distinguish SSI as unique in being an “exclusively federal program.”  Justice Sotomayor made a similar point.  But the ramifications the ruling could have in expanding eligibility for other federal programs appeared to be the greatest concern to the conservative members of the Court.

 

The briefs filed in the case were discussed in the July 2021 and October 2021 issues of this newsletter.  The audio recording and transcript are available on the Court’s website.

 


Is SSA Finally Reopening?

Posted on January 30th, 2022

Social Security Administration (SSA) offices have been generally closed to in-person services since March 2020 because of the COVID-19 pandemic, with no walk-in service at all and an extremely limited number of field office appointments available based on dire need. Hearings have been held either by telephone or via Teams. After some indication of a January-based reopening of offices to the public that was retracted in December, it looks like SSA is finally moving towards “reentry.”

 

On January 20, 2022, Acting Commissioner Kilolo Kijakazi announced the agency has reached agreement with its three labor unions on a reentry plan. The following day, the Acting Commissioner provided a few more specifics. According to a January 21st announcement, SSA is planning reentry and implementation of telework schedules for most employees on March 30, 2022. Local offices will restore increased walk-in service in early April, although the public will still be encouraged to conduct most business on-line and schedule appointments. Limited in-person hearings with management judges will begin in March with plans to expand in the spring and early summer.

 

A report in the Federal New Network offers more details. According to the report, the agency’s reentry plan, released at the beginning of November 2021 as a “pre-decisional” document, was complicated by the spread of the omicron variant of COVID-19. But the American Federation of Government Employees (AFGE) has now reached an agreement with SSA. Under a Memorandum of Understanding (MOU), 45,000 employees would begin returning to the office on March 30, 2022.  This date is subject to changes in pandemic conditions. According to Rich Couture, chief negotiator for the AFGE, the MOU is the first step to be followed by a series of reentry meetings. Continued telework options remain a critical part of the negotiations. The policies remain unclear and allowable telework days may vary by component.

 

Meanwhile, the Association of Administrative Law Judges announced on January 17, 2022, that it had reached a memorandum of understanding (MOU) with SSA dated January 14, 2022, providing for the return of all ALJs to the Office of Hearings and Appeals (OHO) worksites by June 3, 2022, with the ability to continue working remotely up to four days per week.  ALJs can return on a voluntary basis by May 4, 2022.  The exact dates are contingent on the provision of notice as well as with negotiations with other unions. As with the field offices, it is hard to discern exactly what level of access claimants can expect.  SSA had previously announced that management level ALJs would begin in-person hearings in a limited number of cases.

 

In addition, the National Treasury Employees Union, which represents employees in OHO, has also negotiated an agreement that increases telework opportunities, extends scheduling flexibility, and ensures safety. It is not yet clear, however, when that reentry process will begin.

 

In conjunction with the resumption of in-person hearings, the agency also announced a new screening procedure to be completed within 24 hours of a scheduled hearing time.  Claimants are to complete a COVID-19 screening questionnaire online or by phone.  The screening process was set forth on December 3, 2021, via an “Emergency Request” for approval from Office of Management and Budget (OMB), 86 Fed. Reg. 68717.  Advocates raised a variety of concerns via public comments, but NOSSCR reported that by the time it had filed its comments on December 10, 2021, OMB had already given its clearance to the package submitted by SSA.  Other commentors so far include Empire Justice Center, Community Legal Services of Philadelphia, Disability Law Center in Boston, and Legal Aid Society of Columbus.

 

Many of the comments do not necessarily urge changes to the survey but instead caution against overreliance without follow-up to ensure that a person is not screened out unnecessarily.  SSA is also urged to provide claimants recourse and alternative methods of screening if they have difficulty or barriers completing the survey within the 24-hour timeframe.

 

 

Claimants and their advocates have been outraged at the lack of adequate access to its services, particularly for those with little or no income, with a disproportionate impact on Black and brown communities and claimants for Supplemental Security Income (SSI).  Calls for the agency to increase access and address the service failures have been growing.  On January 5, 2022, Republican member of Congress John Katko called on SSA for a timeline for reopening and for a plan to safely expand access.  He was joined by Democrat Kathleen Rice, also from Central New York.  On December 8, 2021, a group of 15 Senate Republicans sent a letter to SSA urging its reopening and noting its negative impact on rural claimants.  That letter had cited an OIG report from July 2021 finding a troubling backlog of unopened paper mail.  The OIG report was summarized in the October 2021 edition of this newsletter.

 

The U.S. Senate had previously held a hearing in April 2021 and discussed some of the service failures and harm to beneficiaries.  Media outlets are also continuing to cover the negative impact of closures, particularly at the field office level where it remains extremely difficult to reach the office for an appointment necessary to conduct in-person transactions.

 

Stay tuned as details for reentry plans develop.

 


Recent 2d Circuit Decisions – January 2022

Posted on January 28th, 2022

Alexander v. Saul, — F.4th —, 2021 WL 2832889 (2d Cir. July 8, 2021)

The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).

Sczepanski v. Saul, — F.3d —, 2020 WL 61806 (2d Cir. Jan. 7, 2020)

The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.

 

Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019)

The Second Circuit remanded, finding the ALJ committed procedural error in failing to “explicitly” apply the factors laid out in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008), for evaluating treating source opinions.  The court reiterated its mandate, rooted both in regulation and precedent, for ALJs to follow specific procedures and adequately explain their reasoning when assigning weight to opinions, citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013), Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004)(per curiam). It found the ALJ “cherry picked” the evidence, particularly mental status exam results, without attempting to reconcile longitudinal inconsistencies in this mental health claim.  And it criticized the ALJ for relying too heavily on the opinion of the consultative examiner, citing Selian.

 

Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not met his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but  the three jobs to which the VE testified all required frequent or occasional reaching.

 

Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)

The Court of Appeals remanded for consideration of a retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.”

 

Greek v. Colvin, 802 F.3d 370 (2d Cir 2015)

The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. “After all, SSA’s regulations provide a very specific process for evaluating a treating physician’s opinion and instruct ALJs to give such opinions ‘controlling weight’ in all but a limited range of circumstances. See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128.” (Emphasis supplied.)

 

McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)

The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s nonexertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ’s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations. The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.

 

Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)

The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand. In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed explicitly.

 

Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)

The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records. The Court also held the ALJ’s RFC determination was not supported by substantial evidence. It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.” Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain nor depression was significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.

 

Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)

The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.


Child Disability Benefits Awarded

Posted on October 19th, 2021

The importance of evidence from prior folders is discussed on page 7 of the October 2021 newsletter.  Its importance is even further illustrated by a recent Administrative Law Judge (ALJ) decision that Attorney Betsy Lombardi of the Legal Aid Society of Mid-New York in Syracuse obtained.  Betsy’s case involved old evidence, potential collateral estoppel, and much hard work and creative advocacy.

 

Betsy’s client was born in 1980 and had been found eligible for Supplemental Security Income (SSI) in 1992 based on his intellectual disability and ADHD. In 1998, he underwent an Age 18 Review, and his SSI benefits were continued. In 2013, the claimant was found eligible for Title II – Social Security Disability Insurance benefits – based on his own earnings record. His earnings were significant enough to qualify for Title II coverage but below the relevant Substantial Gainful Activity (SGA) levels.

 

Meanwhile, in 2011, the claimant’s father had filed his own Title II claim and had named his son as a potential auxiliary beneficiary. As the claimant was disabled before age 22, he would be eligible for Child Disability Benefits (CDB – formerly known as Disabled Adult Child Benefits or DAC) based on his father’s earnings record. His father’s 2011 application constituted a protective filing for the CDB claim. Monthly benefits under the father’s account would be higher than those under the claimant’s own account. This is not unusual in claims like this. And prior to recent changes in SSA’s collateral estoppel rules, the transition from the benefits under the claimant’s account to that of his father should have been fairly smooth.

 

In 2019, however, the Social Security Administration (SSA) amended its policies governing collateral estoppel. See the October 2020 edition of this newsletter for more on collateral estoppel and changes to SSA’s POMS. In short, SSA decreed that a prior favorable disability finding such as the one obtained by Betsy’s client way back when will not be given collateral estoppel effect on a new application if the earlier claim was based on meeting or equaling a mental impairment listing in effect prior to January 17, 2017 – the date the mental listings underwent a revision.

 

In fact, Betsy’s client had been found disabled under Listing 12.05 for intellectual disorders then in effect back in 1992, and again when his SSI benefits were continued in 1998. But because of the changes to the collateral estoppel provisions, instead of the transition being automatic, Betsy had to demonstrate that the client is currently disabled and has been disabled since before age 22 in 1998. As the ALJ noted in his decision, “This period is extremely remote, and, unfortunately, most contemporaneous educational, treatment, and Agency records are no longer available. Nevertheless, the existing evidence establishes that the claimant’s intellectual disorder met the criteria of listing 12.05 during this period.”

 

In 2020, Betsy argued that a fully favorable decision was warranted as the claimant met listing 12.05(B) under the current listings.  Further, she highlighted evidence that the claimant was disabled prior to age 22 by emphasizing the report of the state agency consultant who reviewed the claimant’s case at the time of the Age 18 Review in 1998, which referenced teacher reports and included a consultative examiner’s IQ test reports revealing scores below 70.

 

Finally, Betsy requested that if the ALJ could not issue a fully favorable decision on the record, SSA should locate and enter into the record all documents found pertaining to the claimant’s disability.  She pointed out that since the claimant had been receiving benefits since 1992, SSA should have medical and school records on file from the 1992 application and 1998 review.  Since the claimant’s school records had been destroyed by the district, the only copies available would be any records SSA had on file previously.

 

The ALJ refused to find the claimant disabled on the record and scheduled a hearing.  Due to the COVID-19 pandemic, however, the claimant was offered a phone hearing, which he refused. The case was postponed until 2021.  In the meantime, Betsy made two additional requests that the ALJ ensure that SSA had all the records on file for the claimant.  Documents from the claimant’s SSA file were added for the period of 2013 through 2018, but nothing prior to the claimant reaching age 22.

 

At the video hearing, Betsy emphasized to the ALJ that SSA had failed to provide any records from the claimant’s case prior to 2013.  The ALJ stated during the hearing that he would make another request to the field office for these records.  The ALJ, however, did not add any additional records from the claimant’s previous SSA files.  Instead, the ALJ relied on the evidence from the 1998 review, along with a third-party function report from a brother-in-law who has known the claimant for 24 years, to find that the claimant’s impairments meet the new, post 2017 “B criteria” for Listing 12.05. Accordingly, he found the claimant met the criteria for Listing 12.05(B) between the date in 1998 when he turned 18 and before he turned 22 in 2002.

 

The ALJ acknowledged that evidence postdating the claimant’s 22nd birthday rarely if ever mentioned his intellectual impairment. Nor were there more recent IQ scores.  But the ALJ, at Betsy’s urging, extrapolated limitations from mental health treatment notes to fit the B criteria of Listing 12.05B. He also relied on POMS DI 24583.055 to find that IQ scores obtained at age 16 or older should be considered reliable, as the 1998 scores were consistent with current functioning. The ALJ thus concluded that the claimant met the criteria of the listing throughout the relevant period. The ALJ went on to find that based on a limited residual functional capacity, there was no other work the claimant could perform, and was thus disabled.

 

A great decision for Betsy’s client, who is now eligible for higher monthly Title II benefits on his father’s account retroactive to his father’s protective filing date in 2011. But what a lot of work and aggravation for both Betsy and ALJ to reach a result that should be obvious. Isn’t that what collateral estoppel is supposed to avoid?

 


Automatic Discharges Announced for Student Loans

Posted on October 19th, 2021

On August 19, 2021, the U.S. Department of Education announced that over 323,000 borrowers who have a total and permanent disability (TPD) will receive more than $5.8 billion in automatic federal student loan discharges.  Advocates will recall that in 2012, the Department of Education amended its regulations governing discharge of federal student loans based on total and permanent disability.  But not all disabled borrowers were aware of or able to take advantage these provisions.  See the December 2012, June 2016, and April 2021 editions of the Disability Law News.

 

There have been significant challenges to qualifying for discharge as the borrower must submit either a physician’s certification, or an SSA notice of an award for SSDI or SSI benefits indicating that the borrower’s scheduled disability review will be within five to seven years.  Advocates familiar with the Social Security Administration’s (SSA’s) Continuing Disability Review (CDR) process will recognize these time frames as associated with the classification of the impairment for which benefits were granted. See 42 U.S.C. §§421(i) & 1382c(a)(3)(H)(ii); 20 CFR §§ 404.1590(c) & (d), 416.990(c) & (d).

 

Although these eligibility criteria have not been changed, the new regulation will allow the Department of Education to provide automatic TPD discharges for borrowers who are identified through administrative data matching.  They remove the requirement for these borrowers to fill out an application before receiving relief.  The change was to go into effect with the Department’s next quarterly data match with SSA in September. Borrowers will receive notices of their approval for a discharge in the weeks after the match.  The Department expects that all discharges will occur by the end of the year.  Borrowers who wish to opt out of their discharge for any reason will have an opportunity to do so.  All discharges will be free from federal income taxation but there may be some state income tax consequences.

 

 

The Department of Education also announced a permanent change through negotiated rulemaking to requirements that caused borrowers to lose their discharges.  Under the regulations, a borrower who receives a TPD discharge through the SSA match or the physician’s certification process is subject to a three-year income monitoring period.  During this period the borrower may lose their discharge if their earnings are above a certain threshold, or they do not respond to a request for earnings information.  A 2016 report by the Government Accountability Office found that 98 percent of reinstated disability discharges occurred because borrowers did not submit the requested documentation, not because their earnings were too high.  In late March, the Department restored $1.3 billion in loan discharges for 41,000 borrowers who had seen their loans reinstated after not responding to requests for earnings information.

 

The Education Department will indefinitely stop sending automatic requests for earnings information, continuing a practice that the Department announced in March 2021 for the duration of the national emergency.  And the Department has proposed eliminating the monitoring period entirely as part of on-going negotiated rulemaking.

 

Negotiations are also on-going to broaden the definition of total and permanent disability for federal student loan discharges.  For more on student loan debt, see Delivering on Student Debt, in particular the section on Relief for Borrowers with Disabilities authored by John Whitelaw, Advocacy Director, Community Legal Aid Society, Inc. (Delaware) and Bethany Lilly, Director of Income Policy, The Arc.