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UPDATED FACT SHEET! Health Insurance & the End of the COVID-19 Public Health Emergency: What does this mean for Medicaid, Child Health Plus, and Essential Plan beneficiaries?
Posted on September 25th, 2023
The COVID-19 federal public health emergency expired on May 11, 2023. Recertifications for public health insurance programs have started, and new information has become available from NYS on the renewal process. Read the UPDATED FACT SHEET to find out what this means for Medicaid, Child Health Plus, and Essential Plan Beneficiaries.
Questions? Contact Empire Justice’s Health Law Unit at health@empirejustice.org or 800-724-0490 x5822
Biden Announces Nominee for SSA Commissioner
Posted on July 28th, 2023
On July 26, 2023, President Joe Biden announced his intent to nominate former Maryland Governor Martin O’Malley for Commissioner of Social Security. The six-year term appointment is subject to Senate confirmation.
In addition to his two terms as a governor, O’Malley also served as the former Mayor of Baltimore and has been described as “a pioneer of data-driven government,” a background that could be useful in addressing the significant operational challenges facing the Social Security Administration (SSA) and the crisis in customer service for claimants trying to access its programs. The White House statement about the nomination cited O’Malley’s record of data and performance-driven technologies that improved access to government services in his state. O’Malley was a Democratic presidential nominee in 2016, where his platform featured an expansion of SSA benefits, including increased benefit amounts.
The nomination is expected to face opposition from Republicans, who were angered two years ago when Biden fired former commissioner Andrew Saul, a Trump appointee who refused to step down. Since Saul’s firing, the agency has been led by Kilolo Kijakazi as acting commissioner. If approved by the Senate, O’Malley would be the first Democratic-appointed commissioner since 2001.
The absence of a permanent commissioner has been cited by many as impeding the ability of the agency to make meaningful progress with longstanding problems and management failures. SSA’s significant labor and budgetary challenges include staffing levels that are at a 25-year low. In September 2022, a group of 16 senators urged President Biden to nominate a permanent commissioner.
Several Long-time DAP Advocates Retire
Posted on July 28th, 2023
Over the past year, several seasoned Disability Advocacy Program (DAP) advocates have left their organizations to enter the world of retirement. We hope to recognize some of the individuals who have dedicated decades of advocacy to low-income New Yorkers with disabilities who are served by DAP.
Recent DAP retirees include Andrew Alter of Legal Services of Hudson Valley. Andrew dedicated over twenty years as a DAP attorney and recently retired at the beginning of 2023. The Legal Aid Society in New York City saw the retirements of Supervising Attorneys Karen Hambrick and Jocelyn Martinez, as well as Paralegal Norma Frade. JoAnn Lewandowski, a Senior Paralegal of Neighborhood Legal Services in Buffalo, New York retired in December of 2022. Mary Withington of Legal Aid Society of Northeastern New York (LASNNY) also retired this past December. She served as a Supervising Attorney and DAP advocate in her agency’s Saratoga office. All had contributed many years of service to DAP.
Also among the group of recent DAP retirees is Peter Racette, former Program and Deputy Director of LASNNY’s DAP unit. Peter was known to many DAP advocates statewide for his contributions to DAP trainings at Partnership Conferences and beyond. Kate Callery, former Senior Attorney and long-time Statewide DAP Coordinator at Empire Justice Center, also retired this past year and had this to say about Peter: “I recall traveling to Plattsburgh with Ed Lopez to help with a DAP training the then pony-tailed Peter organized for a group of private attorneys he had charmed into taking pro bono cases. It was obvious then he would be the leader and role model he became.” We recently spoke to Peter about his thirty-six years of service with DAP and his upcoming plans.
What are the most notable differences in DAP advocacy now compared to when you first started?
DAP advocacy has changed quite a bit over my career. The procedural demands of the practice are more exacting now, and the regulatory framework is less claimant-friendly. On the other hand, the resources and training available to advocates have increased over the years, thanks to the consistency in the DAP program and all the skilled and dedicated advocates who share their expertise. The biggest change in my experience is the ALJs. The Albany OHO formerly had a group of ALJs who were retired NYS AAGs. They were experienced litigators and had a practical approach to disability adjudication and took pride in their independence from SSA. As they retired they were replaced by ALJs who did not have similar breadth of legal experience and are reluctant to exercise judicial independence. I’m always astounded at the number of ALJ decisions that nit-pick treating source evidence while overlooking the same and even greater flaws in the review physician and CE evidence. The cognitive dissonance of these decisions is amazing—the ALJs seem not to notice or care that decisions affecting people’s lives in fundamental ways are often completely arbitrary.
What would you consider to be a turning point in your career as a DAP advocate?
I started at North Country Legal Services in 1987 after a judicial clerkship in the U.S. District Court for the District of Vermont. When I began I intended to gain some experience and open a solo general practice. But legal services fit me perfectly. I was part of a movement and enjoyed the smart, capable and dedicated lawyers and paralegals working in legal services throughout New York. A large part of that was the regular DAP and Welfare Task Force meetings in Albany and Syracuse. I loved going to those meetings and connecting with like-minded colleagues. Everything is so collaborative in legal services.
What is one notable experience or memory you have during your time at LASNNY?
It’s difficult for me to single out one memory. I grew up personally and professionally in Legal Services. I was 29 years old when I started and lived more than half of my life (so far) in the legal services movement. Looking back, I couldn’t imagine doing it any differently.
Tell us about one case that has made a lasting impact on the work you’ve done.
I remember much better the cases I lost that I should have won than the cases I won. I had one SSI client who was developmentally disabled and had been classified MR by the school system from the time she was in elementary school based on IQ scores in the low 60s. After school, she lived with her family until she got married, and even then lived next door to her family. The only job she ever had was short-term and involved packing endives. Her sister got her the job and worked next to her on the assembly line as a de facto job coach. She was divorced when she was in her early 40s and became eligible for SN benefits. DSS required that she apply for SSI. She was denied because a psychological CE scored her with a low 70s IQ. I was never able to win her benefits over three applications despite using testimony from her mother and sister about how dependent the client was on them for almost all ADLs. DSS paid for an independent psychological evaluation to support the claim, with no success. I simply could not convince two different ALJs to look beyond that low 70s IQ to the facts of her life. Eventually her case was paid on initial determination on her fourth or fifth application.
What’s the best advice you can give to newer DAP advocates?
Always look for the answer in the regulations and the POMS even when you think you know the answer. There’s a pretty good chance you’ll be the only person in the hearing room who has done so, and that gives you great power.
What are you most looking forward to in retirement?
I’m looking forward to doing all of the activities I do now—cycling, paddling, back country skiing, hiking—except not worrying about the things I need to do when I’m done playing.
We thank Peter and all of the DAP advocates for their dedicated service and contributions to DAP and wish them and happy retirement.
SSAB and OIG Call for DDS Improvements
Posted on July 28th, 2023
Two recent reports examine some of the seemingly intractable problems with the role of the Disability Determination Services (DDS) state agencies in the evaluation of disability claims. The Social Security Advisory Board (SSAB), a bipartisan, independent federal agency charged with studying and making recommendations for SSA’s programs, issued a report in April 2023, Social Security and State Disability Determination Services Agencies: A Partnership in Need of Attention. And in June 2023 the Office of the Inspector General (OIG) of the Social Security Administration (SSA) issued Audit Report A-01-20-50963: The COVID-19 Pandemic’s Effect on Disability Determination Services’ Processing of Disability Claims.
Most of the SSAB report offers a historical overview of how the federal-state relationship evolved over several decades. It notes several of the tensions inherent in the relationship between SSA and the many DDS state agencies. For one, SSA has ultimate responsibility for policy-compliant decisions but does not control DDS recruitment and training. The report also describes some of the structural barriers that impede communication and support for the DDS agencies. SSA’s diffuse organizational structure “require[s] considerable workload coordination (but not supervision or oversight) between” each of the 50 separate state DDS agencies and SSA’s many local and hearing offices. SSA’s regional offices work to communicate most requirements and receive feedback from the DDSs. However, it is several other SSA components that directly control budget, productivity, and policy priorities.
The SSAB report describes several operational struggles, identifying three areas warranting further review: DDS personnel and fiscal issues, information technology (IT), and performance and productivity. The Board concluded by calling for further review of how SSA and DDS work together, including a look at personnel changes at the DDS level; the effect of specific IT applications on processing; and productivity trends and the effectiveness of SSA’s quality review mechanisms.
The SSAB noted that the COVID-19 pandemic heightened some of the pre-existing problems with communication, technology, and other challenges in the SSA/DDS relationship. The report by the OIG looked specifically at the impact of the pandemic on DDS processing and cited many of the same factors as in the SSAB report, including a decrease in consultative examinations; staff losses and a steep learning curve for new employees; challenges transitioning to telework; and multiple policy changes. The OIG report looked to SSA’s request for increased funding as a path to improve processing times.
Musculoskeletal EM Revised
Posted on July 28th, 2023
As detailed in the January 2021 edition of this newsletter, the Social Security Administration (SSA) revised its musculoskeletal listings effective April 2021. On that effective date, SSA issued further guidance on the new listings, including Emergency Message (EM) 21027. The EM provided additional guidance for evaluating the “documented medical need” for a wheeled and seated mobility device (WSMD) and applying the “close proximity of time” standard with respect to the imaging requirement.
That EM has recently been revised. According to EM 21027 REV 2, adjudicators should consider the documented medical need for the most restrictive WSMD. The “most restrictive device” is the device that involves the greatest limitation on the claimant’s use of the upper extremities, which is the focus of the functional criteria. For example, if a claimant alternates between a walker and a motorized (one-handed) WSMD, and has a documented medical need for both devices, the claimant’s functioning should be evaluated considering the two-handed assistive device criterion because the walker is the most restrictive assistive device for which the claimant has a documented medical need.
The EM reiterates that adjudicators should not require imaging with “close proximity of time” to the other required elements of the listing. According to SSA, “[i]n most cases, no additional imaging or development is necessary unless there was a potentially corrective surgery or other intervention between the timeframe of the imaging and the other findings.” It also emphasizes that functional criterion can be satisfied if the claimant is unable to independently initiate, sustain, or complete work-related activities (or, for a child, to perform age-appropriate activities) involving fine and gross movements due to the musculoskeletal disorder. The claimant need not demonstrate an ability to do all three. Examples are found at POMS DI 34001.010 and DI 34005.101.
EM 21020 REV 2 also announces that the Temporary Final Rule (TFR) published on July 23, 2021, that provided additional flexibility in evaluating “close proximity of time” due to COVID-19-related barriers to healthcare, will expire November 11, 2023, unless extended by regulation. Under the TFR, “close proximity” means all the relevant criteria must appear in the medical record within a twelve-month period rather than the four-month period required by the listing.
Advocates Answer Call for Comments
Posted on July 28th, 2023
Over the past four months, advocates have responded to calls for comments on Social Security Administration (SSA) proposed rulemaking and other requests for information and input. Legal services programs and advocates, including the Disability Advocacy Program (DAP) Statewide Coordinators at Empire Justice Center and the Urban Justice Center (UJC), submitted comments addressing a range of issues, including SSA’s rules governing “in-kind support and maintenance” (ISM), rules for setting the manner of appearance at a hearing, ideas for reducing administrative burdens, and ideas for SSA’s Learning Agenda.
SSA’s current regulatory agenda includes a proposal to exclude the consideration of food from the calculation of ISM when determining the amount of Supplemental Security Income (SSI) payable. While the change is a positive one, the rules for ISM would remain burdensome and complex for both the agency and claimants even if the change was implemented. During the comment period that ended April 17, 2023, Empire Justice and UJC applauded the proposal as promoting equity and simplification but urged that more be done in the future. ISM should be eliminated entirely. Since doing so requires legislative change, the comments recommended that until Congress is willing to act, more steps be taken by SSA to limit the application of ISM. One measure would be to expand the definition of public assistance households so that SSI recipients who also received SNAP are excluded from ISM reporting.
A more recent regulatory proposal by SSA, published May 19, 2023, included changes to SSA’s rules in setting the manner or modality of a hearing. If adopted, the changes would allow claimants to continue utilizing all modalities of hearings – including in-person, video, and audio. However, SSA would revert to the pre-pandemic procedure of requiring a claimant to opt-out of a video hearing within a relatively short amount of time after a person is first given notice of the options of how they may be provided a hearing. Empire Justice and UJC urged SSA to retain in-person hearings as a meaningful choice, and highlighted the challenges faced by low-income claimants in particular, who may face lack of equipment, cell service, internet connection, private space, or even tech skills. The comments also pressed SSA to increase the clarity of the notices that explain how to elect a modality, and to make the option of an in-person hearing the default with the opportunity to “opt in” to video rather than requiring they “opt out” of video if they want to appear in person. Advocates also asked SSA to increase the amount of flexibility given to claimants to change their manner of appearance, beyond the 30 days after the notice of the options.
Advocates also submitted comments to requests for information. SSA asked for input on the priority questions to comprise its FY 2022-2026 Learning Agenda. During the comment period that ended March 2, 2023, Empire Justice and UJC asked SSA to study the effects of the reinstatement of reconsideration in the former “prototype” states. New York was one of the ten former prototype states that saw reinstatement of reconsideration in 2019, a change made without any research or data to support it. Since that time, reconsideration has proven to be inefficient and unduly burdensome with minimal benefit. National statistics indicate that the process is beneficial for very few – approximately 13% of claimants see success at that level – while most see their processing time delayed. Comments also urged SSA to add to its Learning Agenda the study of inequities in how disability claims are adjudicated.
In another comment period ending April 17, 2023, advocates again raised their complaints about reconsideration and ISM, this time in response to a request by the Administrative Conference of the United States (ACUS) for comments on how federal agencies can reduce the administrative burden of how the public accesses government programs and services. Comments from UJC, Empire Justice, and LawNY, which focused on SSA specifically, also highlighted more ways in which the agency’s overreliance on online services was sometimes harming underserved communities. In response to ACUS’s request for suggestions for COVID-era policies that should be expanded, advocates suggested that SSA expand and formalize the “good cause” policy enacted during the COVID-19 pandemic. The comments argued that the pandemic revealed how claimants face an array of circumstances that warrant maximum flexibility in how good cause is applied toward those who have missed a deadline or other obligation. The comments also urged SSA to increase its transparency and accessibility to the public.
Please let us know if your program would like to coordinate on future comments.
Recent 2nd Circuit Decisions
Posted on July 28th, 2023
Rucker v. Kijakazi, 48 F.4th 86, 2022 WL 4074410 (2d Cir. Sept. 6, 2022)
The court remanded under the pre 2017 opinion evidence regulations that applied to this case, finding the ALJ had not identified substantial evidence to support her conclusion that the plaintiff could work alone except for normal supervision. She also failed to provide good reasons for rejecting the limitations identified by the treating psychiatrist, erroneously rejecting it because it was based on the plaintiff’s own reports. Nor was the plaintiff’s periodic lack of complaints of symptoms sufficient given her lack of insight. The ALJ should not have relied on the plaintiff’s ability to attend therapy as an indication of ability to work. Nor did some positive progress notes and mental status exams justify rejecting the treating source. The ALJ also relied too heavily on a consultative exam.
Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. Apr. 6, 2022)
The court affirmed the District Court decision under the pre 2017 opinion evidence regulations that applied in this case. It found the ALJ properly accorded lesser weight to the opinions of two treating physicians because one was conclusory and vague and the other, rendered in check-box format, was not supported by the medical evidence. And according to the court, both opinions as to the plaintiff’s tremors and sensory deficits were inconsistent with the medical evidence, which identified only mild tremors, and the plaintiff’s testimony. The court also agreed with the ALJ’s assessment that the opinion of the consultative examiner was entitled to even less weight. It rejected plaintiff’s argument that the ALJ could not make an RFC finding because she had declined to accord controlling weight to any of the medical opinions; the ALJ is entitled to weigh all available evidence to make RFC findings and her conclusion need not perfectly correspond with opinions of record. Finally, the court found that the ALJ’s failure to articulate the so-called Burgess factors for evaluating treating source opinions to be harmless error as it was evident she had applied the substance of the treating physician rule.
Fields v. Kijakazi, 24 F.4th 845 (2d Cir. Jan. 28, 2022)
The Court of Appeals held that the District Court erred in reducing attorney fees requested by plaintiff’s attorney, Binder & Binder, under 42 U.S.C. § 406(b), as a windfall. The Second Circuit, relying on its decision in Wells v. Sullivan (“Wells II”), 907 F.2d 367, 372 (2d Cir. 1990), and the Supreme Court in Gisbreath v. Barnhart, 535 U.S. 789, 808 (2002), held that to reduce a contingency fee solely on the grounds that the amount requested is a windfall, the court must be clear the fee was not earned by counsel. Here, the appeals court found that the plaintiff’s very experienced attorney represented him professionally, efficiently, and ultimately successfully in four ALJ hearings, several Appeals Council petitions, and two district court appeals. His request for a fee of $40,170, which was 25% of the plaintiff’s retroactive award, was not a windfall even though it constituted an hourly rate of $1,556.98 based on the 25.8 hours expended on representation in the federal court phases of the claims.
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), cert. denied, 142 S.Ct. 1461 (Apr. 4, 2022)
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. 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. But it affirmed the District Court, holding 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.
OIG Criticizes SSA’s Phone Service and Direct Express
Posted on July 28th, 2023
Among the recent reports issued by the Office of the Inspector General (OIG) of the Social Security Administration (SSA) are two that examined subjects of great claimant frustration: A-05-22-51149 – The Social Security Administration’s Telephone Service Disruptions and A-04-20-50977 – The Social Security Administration’s Oversight of Beneficiaries Who Receive Benefits Under the Direct Express® Debit Card Program. Another report focused on the impact of the COVID-19 pandemic on the ability of the Disability Determination Services (DDS) to process claims is discussed below in another article in this newsletter.
Not surprisingly, the OIG found that SSA’s telephone systems experienced an increasing number of service disruptions from May 2021 through December 2022, particularly involving the 800 number. These disruptions resulted in dropped calls, increased wait times and, in some instances, unavailable automated services. Much is blamed on SSA’s inability to implement its Next Generation Telephone Project (NGTP). Instead, it allegedly strengthened its temporary platform to help increase stability until NGTP can be implemented. OIG recommends that SSA set a goal for completion of the final stages of the NGTP, including adding the field office and Headquarters telephone systems to operate under a single platform.
Although many problems with the Direct Express® debit card might be blamed on the Department of Treasury and its Financial Agency Agreement with Comerica Bank, the OIG found that SSA could improve its communication with beneficiaries and representative payees regarding enrollment in the Direct Express® Debit Card program. In meetings with advocates in New York State, SSA’s Public Affairs office has similarly indicated that SSA’s local field office staff are instructed to respond to initial complaints about Direct Express by providing to the claimant the main customer service telephone number for Direct Express. If an individual reports that they have tried contacting Direct Express but cannot get through, SSA staff can enter a request into an SSA system named the Direct Express Call Resolution Site (DECRS) to request a call back to the claimant that same day.
The OIG also found that SSA could work with Treasury and Comerica Bank to ensure benefits are delivered promptly. According to the OIG, between 2017 and 2021, Comerica Bank returned approximately $114 million to SSA for 49,649 beneficiaries with an unfinished enrollment, referred to as a backlog. In addition, between April 2021 and July 2022, Comerica Bank returned quarterly deposits totaling approximately $18 million to SSA for 5,816 beneficiaries, referred to as ongoing unfinished enrollments. The OIG made several recommendations to SSA for streamlining enrollment.
The Appeals Council (AC) Changes 25 Day Hold Policy
Posted on July 28th, 2023
The Appeals Council (AC) of the Social Security Administration (SSA) notified disability advocates that it will no longer wait 25 days to act on a request for review. Before this change, the AC notified claimants that their request would be held for 25 days to allow time to submit additional evidence. However, based on feedback from representatives, they will now do away with this hold and act on the appeal without delay. Claimants may still request an extension of time to submit evidence by completing Form HA-520 or in a manner consistent with HALLEX I-3-1-14 and the regulations. See the National Organization for Social Security Claimants Representatives (NOSSCR) website for SSA’s “Dear Colleague” letter about the change.
Second Circuit Remands for D.O.T. Reasoning Level Conflict
Posted on July 27th, 2023
Can jobs identified at a hearing by a vocational witness that require a reasoning level of three be performed by someone limited to “simple, routine tasks”? Maybe not, according to a recent summary order by the Court of Appeals for the Second Circuit. In Gibbons v. Commissioner of Soc. Sec., 2023 WL 3830774 (June 6, 2023), the court remanded a pro se appeal based on this apparent conflict with the Dictionary of Occupational Titles (D.O.T.) reasoning level requirements and so-called unskilled work.
Appendix C to the D.O.T. describes three divisions within the General Education Development (GED) Scale: Reasoning, Mathematical, and Language Development. Reasoning Development, which is assigned to most occupations, includes six levels, ranging from the least complex (level 1) to the most complex (level 6). Level 3 requires individuals to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.”
At the hearing, the ALJ limited Mr. Gibbons to unskilled work with “simple, routine tasks.” The vocational witness, however, identified jobs that required a reasoning level of three. The hearing representative argued that a limitation to routine tasks and simple work would preclude the ability to carry out detailed written and oral instructions, as required by the jobs identified. The vocational witness disagreed. The representative raised the incongruence again in a post-hearing brief. The ALJ, however, failed to address the issue with any specificity in his decision. Instead, the ALJ found the jobs cited had the specific vocational preparation of two, and thus consistent with unskilled work. “Specific Vocational Preparation” (SVP) is also defined in the D.O.T.: unskilled work corresponds to an SVP of 1-2, which entails work that can be learned in 30 days or less.
Acknowledging a split among circuits on this issue, the court found it was not sufficient for the ALJ to rely on the D.O.T.’s SVP alone as consistent with unskilled work. The ALJ failed to address the potential reasoning level conflict in violation of his duty to do so under Lockwood v. Comm’r of Soc. Sec. Admin., 914 F.3d 87, 92 (2d Cir. 2019). The court rejected the Commissioner’s argument that the ALJ’s error was harmless since Mr. Gibbons had a job in the past that required a reasoning level of three. Per the court, the ALJ failed to cite that work history. It remanded the claim for the ALJ to resolve any conflict regarding the reasoning level between the jobs identified by the vocational witness and jobs that Mr. Gibbons would be able to perform given the residual functional capacity (RFC) determined by the ALJ.
The court found that the ALJ did not err in failing to resolve an alleged conflict between the D.O.T. and Mr. Gibbons’s need for a sit/stand option. It also rejected his argument that his need for tinted glasses would be a reasonable accommodation, and thus preclude work. The court did, however, agree the remand should be time-limited, given that Mr. Gibbons filed his claim over 13 years ago. The Court directed the district court to set a 120-day limit on any further ALJ proceedings.
Although a summary order and thus non-binding precedent, this decision should prove to be helpful. Several district courts within the Second Circuit have previously held the opposite. As recently pointed out on the DAP listserv by Mike Telfer from the Legal Aid Society of Northern New York in Albany, however, the VE Handbook actually acknowledges that “[i]t could be argued that occupations requiring reasoning level 3 are too complex for an individual limited to ‘simple’ or ‘repetitive’ tasks.” And Mike reports the Appeals Council may be on board. As we share in another article below, he recently received a remand, holding document preparer was inconsistent with simple routine tasks as it has a GED reasoning level of three. Let’s hope we see more of these “reasonable” decisions.