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 state 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. 

In June 2023, the Social Security Administration (SSA), in collaboration with the U.S. Department of Health and Human Services, published a short guide describing the kinds of medical evidence needed to evaluate disability claims based on long-term health effects of COVID-19 or “Long COVID.” The guide is aimed at healthcare professionals.

In addition to providing a brief general overview of the disability evaluation process, the guide outlines a list of 25 signs and symptoms that may be related to Long COVID. Notably, the guide advises that a positive viral test for Long COVID is not required for a diagnosis of Long COVID. It also encourages the reporting of all objective findings even if they relate to other conditions and emphasizes the importance of documenting any known functional limitations. 

The guide provides a link to SSA’s Emergency Message (EM) 21032 REV, originally issued on April 16, 2021 and discussed in the April 2021 issue of this newsletter, on evaluating Long COVID cases. Like EM-21032 REV, the guide also cites the Center for Disease Control (CDC) as a source for Long COVID information.

Advocates have urged SSA to consider a Social Security Ruling for Long COVID, similar to what has been issued in the past for other emerging or hard-to-understand diseases such as fibromyalgia or HIV. The field of knowledge about Long COVID is still developing rapidly. SSA convened a workshop last year on the topic with the National Academy of Sciences Engineering and Medicine, which published the proceedings. The current EM has a retention date of November 11, 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.  

In a July 2023 report entitled Tackling the Time Tax, the White House touted improvements made by several agencies in reducing the administrative burden — defined broadly as the “time, money, and psychological cost involved in interacting with government” — faced by Americans in accessing benefits and services. Among the case studies and examples in the recent report was a revised form used by the Social Security Administration (SSA) in the Continuing Disability Review (CDR) process, Form SSA-454. An estimated 540,000 individuals are asked to complete this form every year with updated medical, work, and other information, in order to recertify their disability. The report quotes one beneficiary describing the CDR process as “more frightening than having cancer – twice.”   

For decades, SSA estimated that Form SSA-454 used for CDRs, took, on average, one hour to complete. In 2020, as part of a powerful backlash to a regulatory proposal to expand the frequency of CDRs – a proposal that was never enacted – many advocates and members of the public complained during the comment period that SSA was grossly undercounting the amount of time and effort involved in navigating the confusing notices and evidentiary and procedural requirements related to a CDR. A prior newsletter described the comment as a “torrent of opposition.”  

In 2021, based on the comments from the public, SSA sought more feedback on Form SSA-454. Based on extensive advocate input from listening sessions and usability testing, SSA made the following changes: 

• Form SSA-454 was shortened by 20%;  

• The form now allows many beneficiaries to complete the process online; 

• The online form automatically populates the medical history portion of the form with information already on file;  

• The form was revised to use plain language and numerous clarifying instructions; and

• SSA removed two essay-style questions that asked the individual to describe a typical day and “any hobbies or interests” —questions that were deemed to be burdensome and likely to generate inaccurate responses. 

The recent report follows a directive issued last year by the White House, instructing all agencies to consider reforms that would make it easier for the public to access services. The changes achieved through this form are small improvements, and the CDR process remains a complex and daunting one. However, the reforms are an example of how comments made during the rulemaking process can result in positive change. 

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 groups 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.  

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.  

The Social Security Administration (SSA) recently announced the roll-out of the Enhanced Representative Availability Process (ERAP). Beginning this month, newly enrolled representatives will be able to send their availability for hearings to the External Liaison Unit (ELU), part of the Office of Hearings Operations (OHO). The ELU will be the first point of contact for representatives who have questions regarding administrative law judge (ALJ) hearings. The ERAP will replace the current process of emailing the RCSU/regional offices, and after September 1, 2023, the regional offices will no longer process representative availability emails.  

Representatives must first form a Designated Scheduling Group (DSG) by emailing the ELU the following information: the name you chose for your DSG,

the names of all the representatives who will be part of the DSG and their respective ARS representative IDs, the “type” of DSG you are applying for, and the contact information for the DSG. Once you provide that information, you will receive an email confirming your enrollment in ERAP and when you should begin submitting “ERAP-compliant availability.” 

The ELU is offering virtual informational sessions to help representatives in the enrollment process. You can call the ELU at 1-866964-1714 or email them at oho.nsd.nss.elu.general.inquiries@ssa.gov for assistance. SSA also has an extensive ERAP information page on its website:   https://www.ssa.gov/appeals/scheduling_process.html.  

The Social Security Administration (SSA) has revised the criteria in the Listing of Impairments (listings), found at 20 C.F.R. Part 404, Subpart P, Appendix 1, used to evaluate claims involving digestive disorders and skin disorders in adults and children. The new final rules, which were the subject of a Notice of Proposed Rule Making (NPRM) in 2019, were published in the Federal Register on June 8, 2023, and will go into effect on October 6, 2023.   

The preamble to the new rules, as always, contains a wealth of information as to how and why SSA has changed the listings, and includes side-by-side comparison charts of the old and new versions. Of note, under the Digestive Listings at 5.00, gastrointestinal hemorrhaging will now require three blood transfusions. The criteria for short bowel syndrome have been replaced by the broader category of intestinal failure. Criteria for small intestine and pancreas transplantation have been added to the criteria for liver transplantation. Other changes have been made, for example, to the criteria for inflammatory bowel disease (IBD), including evaluation of certain criteria within a consecutive twelve month as opposed to a three-month period. Perianal disease was added in response to commenters.

Scoring methods for chronic liver disease have been updated. Duodenostomy or jejunostomy have been added to gastronomy as alternative methods of supplemental daily enteral nutrition. Similar changes have been made to the criteria for the childhood listings. 

Several skin disorders, including ichthyosis, bullous disease, dermatitis, and hidradenitis suppurativa have been consolidated and considered under chronic infections of the skin or mucous membranes in Listing in 8.09. Updates in medical treatment for various conditions were considered. Emphasis continues to be placed on the evaluation of decreases in function resulting from skin disorders, particularly as to ability to perform fine and gross movements due to skin lesions and contractures. Available evidence of familial incidence will be considered. “Physician” was changed to “medical source” in relation to evidence of adherence to prescribed treatment. The “third-degree” qualifier was removed from evaluation of burns.  

These are a few highlights of the changes. Advocates will need to review all these changes carefully when evaluating claims under these listings after October 6, 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.

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.

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.  

As discussed above in this month's newsletter, the Second Circuit is taking notice of important issues related to Vocational Expert (VE) testimony. The Gibbons decision confirms the importance of cross-examining or responding to VE testimony about “simple” jobs and apparent conflicts with the Dictionary of Occupational Titles (D.O.T.). Mike Telfer, of the Legal Aid Society of Northeastern New York in Albany, recently shared an Appeals Council (AC) remand order that predates the Gibbons decision and seems to indicate that the AC was already aware of this issue. The Council ordered the judge to identify and resolve an apparent conflict between a job with a reasoning level of 3 and a limitation to “simple routine tasks.” Without an adequate evaluation of the conflict, the AC order continued, the decision does not comply with Social Security Ruling 00-4p. 

The Appeals Council also instructed the judge to “adequately” evaluate the claimant’s symptoms in accordance with Social Security Ruling 16-3p, stating, “…subjective symptom evaluation is not an examination of an individual’s character or truthfulness.” The order pointed to incorrect or irrelevant citations the judge made to evidence in the record.

For example, the judge stated the claimant was enrolled in college and played complex, multi-level video games. But the evidence the judge cited showed Mike’s client dropped out of school in the 10th grade and had below-average cognitive functioning. And those complex video games the judge said required situational and spatial awareness? The claimant testified she spends half an hour on her phone per day playing a “bubble game” that involves swiping and matching.      

Mike’s case is an example of how effective VE cross-examination wins cases at the hearing level or on appeal. As many of you know, Mike presented his ideas and techniques for VE cross-examination in two recent DAP trainings that can be found on the Empire Justice website. Congratulations to him for another great win!

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 above 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.  

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 an 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 an 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 to improve on processing times.

Subjective complaints of pain have complicated many disability claims. Doctors typically rely on patients to rate their own pain, using numerical scales ranging from one to ten or emoji faces ranging from happy to distraught. But chronic pain can vary throughout the day. Many, particularly children and people with certain disabilities, struggle to score their pain. Moreover, these self-assessments are not always appreciated or are even ignored by doctors. And in the disability world, without objective evidence, some Administrative Law Judges (ALJs) can be quick to dismiss claims based on pain despite guidance for evaluating symptoms. See Social Security Ruling (SSR) 16-3p. Some seem to be looking for a pain-o-meter.  

Could that pain-o-meter be on the horizon? Researchers at the University of California, San Francisco, surgically implanted recording devices into the brains of four people who had been experiencing chronic pain without relief from medications for over one year. Three times a day, the patients would rate their pain and press a button that would prompt the implant to record brain signals.

The researchers found that frequency fluctuations from the orbitofrontal cortex were the best predictors of chronic pain. The orbitofrontal cortex is an area of the brain involved in emotion regulation, self-evaluation, and decision making. The research was published in May in the journal Nature Neuroscience and reported in the New York Times on May 22, 2023. According to Neurologist Prasad Shirvalkar, “this is the first time ever chronic pain has been measured in the real world.” 

Although these findings are limited and very preliminary, the researchers are hopeful the implants will eventually be used to treat chronic pain through deep brain simulation. According to Dr. Edward Chang, one of the other neurosurgeons involved, “[w]e’re just getting started.”