On December 20, 2023, former Maryland Governor Martin J. O’Malley was sworn in as the new Commissioner of Social Security for a term that will expire on January 19, 2025. He had been nominated by President Biden on July 26, 2023 and confirmed by the Senate in a vote of 50-11 on December 18, 2023. His nomination had been advanced by a bipartisan vote of 17-10 on November 28, 2023, by the Senate Finance Committee.  

With his confirmation, O’Malley became the first Democratic-appointed permanent Commissioner since 2001. He is completing the remainder of the six-year term previously held by Andrew Saul until he was fired by President Biden on July 9, 2021. Kilolo Kijakazi, who was deputy commissioner for retirement and policy, has been Acting Commissioner since that time.  

When sworn in, O’Malley expressed gratitude and stated, “Social Security is the most far-reaching and important act of social and economic justice that the people of the United States have ever enacted. For tens of millions of Americans across our country, Social Security is the difference between living with dignity or living in poverty.” 

As reported in the July 2023 issue of this newsletter, O’Malley has been described as a pioneer of data- and performance-driven government, with a record of employing technology and real-time output measures to improve services to the public. The Social Security Administration (SSA) is currently experiencing significant operational dysfunction, especially with respect to measures like call wait times and the ability to receive in-person service.  

Called “arguably the best manager in government” by Washington Monthly magazine, O’Malley’s technocratic approach has been heralded as increasing accountability and performance. But some of his efforts have also drawn backlash, such as with a “zero-tolerance” approach to violent crime that led to sharp increase in police arrests. In his Senate hearing, he expressed an interest in receiving input from advocates. Listening to claimants and their advocates will be essential to preventing more burden falling on claimants as the agency seeks to improve on its current operational failures.

On January 13, 2024, the Social Security Administration (SSA) made a significant upgrade to their Electronic Records Express/Appointed Representative Services (ERE-ARS) website. Appointed representatives will now be able to see status reports on claims pending at the initial and reconsideration levels. Once a representative enters the ERE site, they can choose the link to “Get Status Reports” and obtain a list of their initial and reconsideration cases.  

The primary purpose of this function is to confirm that a representative is connected to a case and the claim is being processed. If you do not see a case on the list, it is likely that your Form SSA-1696, Appointment of Representative, has not yet been processed by Social Security and you will need to follow up with your local field office for assistance.

According to a recent article by the National Organization of Social Security Claimants’ Representatives (NOSSCR), which beta tested the system for SSA, a case also may not appear if it has been closed, either for not completing the application or appeal properly, or because the case has been decided but the decision has not been released. Let us know how this new function works for you!  

On November 20, 2023, the United States District Court for the Eastern District of New York approved a settlement in a class action lawsuit affecting millions of low-income older adults and people with disabilities nationwide who had their Supplemental Security Income (SSI) benefits reduced or discontinued during the COVID-19 pandemic. The lawsuit, Campos v. Kijakazi, was brought on behalf of five SSI recipients complaining of pandemic-related administrative errors and shutdowns that led SSA to assess SSI overpayments. The settlement will grant millions of dollars in overpayment waivers and other relief. The certified class includes all individuals with SSI overpayments incurred between March 2020 and April 2023.  

The lawsuit complained of how administrative shutdowns and other factors during the height of the pandemic “shut out millions of people with low incomes from accessing the Social Security Administration (SSA) during a time of nationwide economic hardship.” Actions taken by the agency to reduce or stop benefits were especially harmful to SSI recipients, “deepening stress and financial strain for those most harmed by the pandemic.”  

Unlike most other government  agencies, SSA remained shuttered for an extended period of time following the pandemic, from March 2020 until April 2022. For a short period, SSA halted many of its manual processes for reducing or discontinuing SSI benefits, resulting in bigger overpayments than if information had been processed timely. In addition, it was difficult, and often impossible, for claimants to report changes to their finances that could impact the amount of SSI. Other circumstances made it difficult for claimants to comply with rules related to SSI financial eligibility and reporting. Nonetheless, in September 2020, even as SSA offices remained closed, SSA resumed assessing overpayments.  

The maximum contribution toward a 529A tax advantage plan, also known as Achieving a Better Life Experience (ABLE) account, will increase to $18,000 in 2024 from the 2023 limit of $17,000. See SSA Spotlight on ABLE Accounts. The contribution limit is tied to the annual gift tax exemption set by the Internal Revenue Service (IRS).  

ABLE accounts were established in 2014 to allow individuals who became disabled before age 26 to save money for disability related expenses without losing federally funded benefits, like Supplemental Security Income (SSI) and Medicaid. An individual with an ABLE account can save up to $100,000 and the money will not be counted as a resource for SSI purposes.

There is no limit on the amount an individual can save and still be eligible for Medicaid. As we discussed in the January 2023 issue of Disability Law News, the ABLE account program is expanding in a few years to include individuals who became disabled before age 46. See the article in the January 2023 issue of Disability Law News for more information.  

On January 25, 2024, the Social Security Administration (SSA) issued a Request for Information on Social Security Scientific Integrity Policy, 89 Fed. Reg. 5083 (Jan. 25, 2024), soliciting comments and suggestions from the public on the “DRAFT Scientific Integrity Policy of the Social Security Administration” (DRAFT SSA Scientific Integrity Policy). According to this Request for Information (RFI), the DRAFT SSA Scientific Integrity Policy “codifies expectations to preserve scientific integrity throughout SSA scientific activities, establishes key roles and responsibilities for those who will lead the agency’s scientific integrity program, and, as appropriate, establishes relevant reporting and evaluation mechanisms.” 

In the RFI, SSA said it is seeking “suggestions that will help strengthen and promote scientific integrity throughout the agency. The responses to this RFI that interested persons submit to us will be considered as we develop a final SSA Scientific Integrity Policy.” The RFI referred to the scientific integrity efforts and guidelines set forth by the Biden Administration, starting with the 2021 Presidential Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, 86 FR 8845. The 2021 Memorandum established an interagency task force on scientific integrity and makes individual federal agencies responsible for creating agency-specific policies. A subsequent report was issued two years ago by the task force to assist agencies in developing their scientific integrity policies.

National Science and Technology Council (NSTC), Protecting the Integrity of Government Science (January 2022). A subsequent report outlining the framework for agencies was published one year later. See NSTC, A Framework for Federal Scientific Integrity Policy and Practice (January 2023). The framework directs agencies to adopt a common definition of scientific integrity and offers model policies. 

The RFI also cited the President’s Executive Order (E.O.) 13985 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, and E.O. 14058 on Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government, as being advanced by the agency’s effort to develop its DRAFT SSA Scientific Integrity Policy. 

SSA described its current range of scientific projects as including ones designed to keep pace with advancements in medicine and technology; modernize the agency’s vocational rules; test work support models; analyze program trends, gaps, and inconsistencies; and measure the public’s understanding of our programs, as well as the impact of program changes. 

As reported previously in these pages, the Second Circuit has issued a series of cases reiterating its previous holdings interpreting the Social Security Administration’s (SSA’s) prior treating physician regulations. In yet another summary order - Persaud v. Commissioner of Soc. Sec., 2023 WL 7211823 (2d Cir. Nov. 2, 2023) - the court remanded based on the Administrative Law Judge’s (ALJ’s) failure to consider the “Burgess” factors - including the frequency, length, nature, and extent of the treatment and the medical evidence supporting the opinion of the plaintiff’s treating physician - when evaluating the opinion under the governing prior regulations. The ALJ erred, under the treating physician regulations in effect for applications filed before March 2017, to acknowledge the physician’s status as the plaintiff’s long-term treating physician. Congratulations to Attorney Chris Bowes for his work in this case. 

The Court of Appeals has not been so sanguine, however, in several recent cases considering the “new” regulations applicable to claims filed after March 27, 2017. Some of those claims have finally made their way through the appeals process to the circuit level. In three summary orders issued in December 2023 and January 2024, the court has made clear that under the new regulations, the Commissioner owes no special deference to any particular medical opinion of record, including those of treating sources. In Spottswood v. Kijakazi, 2024 WL 89635 (2d Cir. Jan. 9, 2024), it held that the ALJ did not err in finding persuasive the opinions of the consultative examiner and state agency review physician. And she reasonably declined to rely on two treating source opinions she found unpersuasive.

The ALJ found one nurse practitioner’s opinion “merely speculative” and another lacking in any supporting analysis. According to the court, “[c]ontrary to Spottswood’s arguments on appeal, the ALJ's reasoning was not merely conclusory.” 2024 WL 89635, at *3. The court, applying the lenient substantial evidence standard, concluded it could not find that “no reasonable factfinder could have reached the same conclusion.” Id. It thus did not find legal error.  

In Rushford v. Kijakazi, 2023 WL 8946622 (2d Cir. Dec. 28, 2023), the court also affirmed the ALJ’s rejection of the limitations imposed by Rushford’s treating sources. It held that under the new regulations, not only did the ALJ not have to defer to the opinion of the treating physician; the ALJ only had to consider the opinion under two of the factors set forth in the regulations: supportability and consistency. The ALJ was not required to explain how they considered the other factors, which include the relationship of the source with the claimant.  

Congratulations to William Holland, an attorney in the Canton office of Legal Aid Society of Northeastern New York, for recently obtaining a voluntary remand in a case he filed in the U.S. District Court for the Northern District of New York. His client was denied benefits by an Administrative Law Judge (ALJ) who failed to properly consider the medical opinions of a treating physician and nurse. Before filing a motion and memorandum for judgment on the pleadings, William reached out to Social Security’s Office of General Counsel (OGC) with a preview of his argument. The OGC agreed to voluntarily remand the case for a new ALJ hearing and on December 13, 2023, the Appeals Council (AC) issued a remand order vacating the ALJ’s original decision with instructions to properly evaluate the medical opinions under the new rules for opinion evidence. The new rules, which went into effect prior to his client’s application, require the adjudicator to address the consistency and supportability of medical opinions to determine their persuasiveness. But the ALJ only addressed the consistency factor and did not consider whether the opinions were supported by the treatment notes of the providers. Without more, the AC explained, it was unclear whether the residual functional capacity (RFC) was supported by substantial evidence. On remand, the AC ordered the ALJ to articulate the persuasiveness of the medical opinions in accordance with the consistency and supportability factors of the new rules, and obtain vocational expert testimony, if needed, to clarify the effect of other limitations on the client’s occupational base.  

Since federal courts issue outright awards in such a small percentage of cases, obtaining a voluntary remand is a way of securing a “win” at that level in a much more quickly compared to the time it takes for a district court to issue decision. Thank you, William, for sending us an example of how DAP advocates, who do not “chase fees,” can shorten the lengthy appeals process for their clients.   

Mike Telfer, a Disability Advocacy Program (DAP) attorney in the Albany office of Legal Aid Society of Northeastern New York, received a voluntary remand for a new hearing in a case he filed with the U.S. District Court for the Northern District of New York. Mike had argued that the Administrative Law Judge (ALJ) erred in their evaluation of opinion evidence under 20 C.F.R.  §§ 404.1520(b), 404.1520(c), 416.920(b), and 416.920(c), or the “new rules.” The ALJ failed to consider consistency and supportability when determining how persuasive the opinions were. On November 29, 2023, the Appeals Council (AC) issued a remand order that contained a full analysis of each medical opinion and ordered the ALJ to consider the client’s maximum residual functional capacity, obtain vocational expert (VE) testimony if needed, and identify and resolve any conflicts between the VE’s testimony and the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations. Kudos to you, Mike! 

Malcolm Kim, an attorney in the Disability Advocacy Program (DAP) unit of Empire Justice Center, recently received a coveted remand from the Appeals Council after only one year of practicing disability law. His client, who appeared pro se at his Administrative Law Judge (ALJ) hearing, was not properly advised of his right to counsel and did not review his full file. The Appeals Council (AC) remanded the case for a new hearing.  

Malcolm had argued that there were due process violations committed by the ALJ, including the failure by the ALJ to advise the client about the right to counsel as required by HALLEX I-2-1-80, and denying the claimant the opportunity to review his complete file as required by HALLEX I-2-1-35. In a remand order dated November 24, 2023, the AC wrote that there was no pre-hearing conference, no pre-hearing development contact in the record, and no waiver of the right to counsel. Although the client received referrals to local legal aid services in the hearing notices and affirmed he "want[ed] to proceed with a telephone hearing today," the AC determined that did not satisfy the requirements of the HALLEX.  

The AC also agreed that HALLEX I-2-1-35 requires that an unrepresented claimant receive a compact disc (CD) of their electronic claim file. The AC noted that while the hearings office sent the claimant a CD about two months before the hearing, the hearings office should have sent him a new CD after they received over 200 pages of additional medical records. The hearings office's failure to do so was found to be a due process flaw.  

While AC remands are rare, advocates report greater success in arguing procedural violations, especially if in clear contradiction with the HALLEX. Malcolm had also argued that the ALJ did not fulfill his duty to develop the claimant’s complete medical history as required by the Social Security regulations and SSR (Social Security Ruling) 17-4p and that the determination that claimant could perform work was not supported by substantial evidence. Although the AC did not address these arguments and remanded based on procedural error, it did include instructions to the ALJ to consider whether the claimant has past relevant work and can perform it, and to obtain vocational expert evidence if warranted.  

Well done, Malcolm!

To those who grew up in the 80’s and 90’s, Nancy Reagan’s campaign slogan to end drug abuse was ubiquitous. While most people can withstand peer pressure to take drugs, can we do the same when it comes to societal pressure to be “productive”? Being in stressful situations releases cortisol, a hormone produced by the adrenal glands, into our bodies. According to a recent article by CNBC, experts note that stress also releases small amounts of dopamine into the brain. Heidi Hanna, an integrative neuroscientist, warns that small “hits” of dopamine cause a natural high that can be “as addictive as drugs.”

If you choose to put yourself in stressful situations, like waiting until 11:45 p.m. to file that brief, this might be a sign that your brain is addicted to that feeling of pressure and euphoria. Debbie Sorenson, a psychologist specializing in burnout, suggests lifestyle changes. Start with exercise and meditation. Make sure you are getting enough sleep and managing your commitments. In other words, “just say no” sometimes!