EM Issued on Vocational Evidence of Probationary Period Requirements

Empire Justice Center April 27, 2023

In the January 2020 issue of this newsletter, we reported on several notable Second Circuit cases issued at the time, including Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020).  Sczepanski dealt with whether a claimant’s ability to complete a probationary or training period was relevant to a finding of disability.  Three years later, SSA issued on March 27, 2023 Emergency Message (EM) 23021, aimed at preparing the agency to respond to claims that may be impacted by case.

In the new EM, SSA instructs its staff on how to flag cases as potentially affected by the Sczepanski decision.  The agency says that it is still considering whether an Acquiescence Ruling.  In the meantime, it is flagging cases in New York, Connecticut and Vermont in which the claimant was found capable of doing other work in the national economy and where there is vocational evidence in the record about employer probationary periods for at least one of the occupations identified at Step 5.

In Sczepanski, the Circuit had found that in fact, the plaintiff’s impairment-related inability to complete a probationary period was relevant to the evaluation of whether she could perform work in the national economy.  In that case, the record included cross-examination of the vocational expert (VE) by the claimant’s non-attorney representative, asking specifically about tolerated levels of absenteeism, especially in the probationary period.  The plaintiff was likely to be absent one day a month, and the VE had testified that such absenteeism would not be tolerated during the training period.  The ALJ, however, declined to consider limitations in the probationary period specifically.   The court remanded the claim for further proceedings.

Since that time, advocates have reported making successful Sczepanski-based arguments and receiving remands. The April 2020 issue of this newsletter reported an Appeals Council remand received by Mike Telfer of Legal Aid Society of Northeastern New York in a case in which he argued that limitations related to social functioning and the inability to interact with supervisors more than occasionally would preclude work.  In his cross-examination of the VE, Mike elicited testimony about the amount of contact required during the probationary period.  He had similar success in another case at the federal court level in obtaining a voluntary remand from SSA.

For purposes of identifying a case as potentially impacted by Sczepanski, the EM requires there to be vocational evidence on the record about the requirements during probation.  The EM also indicates that that SSA is not limiting the scope to only absenteeism, the job requirement that was at issue in Sczepanski.

It is unclear whether an Acquiescence Ruling will follow, as no other Circuit has ruled on the issue and there is not necessarily an express contrary policy at SSA.  For now, advocates should take Mike’s lead and be sure to cross the VE on this issue.