The local field offices of the Social Security Administration (SSA) have been described as a black hole for claimants whose submissions seem to never be processed. Individuals who are entitled to continuing benefits are especially harmed by these failures, when reconsideration requests are not processed in time to preserve the right to continuing Supplemental Security Income (SSI) under Goldberg v. Kelly.  A recent court settlement aims to improve SSA’s timely processing of SSI non-disability appeals and protect claimants from undue disruption in SSI benefits. 

On Monday April 3, 2023, the United States District Court for the Eastern District of New York approved a settlement agreement in Amin v. Kijakazi, 15-cv-07429 (EDNY) that provides for wide-reaching relief for SSA’s systemic failure to timely process non-disability appeals at the local office level. The case was brought by 14 individual plaintiffs in New York City but the relief provided under the settlement will apply nationally.  The complaint alleged that SSA’s routine failure to accept and timely docket SSI appeals was a violation of the Due Process Clause of the Fifth Amendment, the Social Security Act, and federal regulation. Much of the relief under Amin has already been rolled out over the past 2 years, including changes to SSA’s computer systems and a significant change in policy.   

Under Goldberg v. Kelly, an SSI recipient is entitled to continuing benefits if reconsideration is requested within 10 days; this 10-day deadline is codified in the regulations. See 20 CFR § 416.1336.  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.    

Under the Amin settlement, SSA agreed to expand the Goldberg Kelly appeal period from 10 to 60 days.  This was enacted in October 2021 via Emergency Message (EM) 21064 REV, which established a new 60-day timeframe for ensuring the continuation of SSI benefits during the pendency of an appeal of a suspension or reduction of benefits.  The EM provides for an automatic finding of good cause for late filing where a reconsideration request is made between 10 and 60 days after receipt of the Notice of Planned Action to suspend or reduce their benefits. Good cause is still available after 65 but is not automatic. See EM-20050 REV.  

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.

Sixty-day deadlines govern all levels of Social Security appeals, including requests for review of decisions by Administrative Law Judges (ALJs) at the Appeals Council. 20 C.F.R. §§ 404.968(a) & 416.1468(a). And decisions by the Appeals Council must be appealed to U.S. District Court within 60 days. 20 C.F.R. §§ 404.981 & 416.1481.  

If a claim has been remanded from U.S. District Court for further administrative proceedings, however, a resulting ALJ denial triggers different rules. The ALJ decision is considered a recommended decision to which exceptions may be filed with the Appeals Council within 30 days of the ALJ decision. Even if no exceptions are filed, the Appeals Council can assume jurisdiction on its own within 60 days of the ALJ decision. If it does so, it will notify the claimant and provide an opportunity to file written statements or arguments. Any decision issued by the Appeals Council, either after a claimant’s or its own review, can be appealed to court under the normal 60-day deadline. 20 C.F.R. §§ 404.1484 & 416.984. 

But…if no exceptions are filed and the Appeals Council does not assume jurisdiction, the ALJ decision becomes the final decision of the Commissioner and thus appealable directly to U.S. District Court.  20 C.F.R. §§ 404.1484(d) & 416.984(d).  

A recent exchange on the DAP listserv highlighted this distinction. Advocates may approach these claims differently, with some usually opting to take advantage of the opportunity to file exceptions, and others choosing to by-pass the Appeals Council and file immediately in U.S. District Court. Advocates report varying results with these options. Michael Telfer of the Legal Aid Society of Northeastern New York (LASNNY), for example, recently obtained a remand order from the Appeals Council based on his exceptions to the ALJ’s decision where the ALJ failed to follow through on a promise to issue a subpoena to obtain additional medical evidence. Some advocates instead choose to skip what they perceive to be a futile trip back to the Appeals Council.  

Failure to Cooperate POMS Revised

Advocates have frequently complained to the Social Security Administration (SSA) about the vagaries of its policies regarding suspensions and terminations based on an individual’s alleged failure to cooperate. An article in the January 2022 edition of this newsletter outlines “N20 status,” which allows for nonpayment when a person fails to provide information needed to determine continuing Supplemental Security Income (SSI) eligibility and benefit amounts.  An Emergency Message (EM) had placed a hold on these suspensions during COVID-19 without management level approval.  

SSA has now revised its POMS governing when and how these N20 suspensions can be effectuated. POMS SI 02301.235 provides detailed instructions and guidance for adjudicators, who are admonished not to “misuse or overuse the N20 suspension.” For example, N20 suspensions are not applicable when the recipient cannot be located, needs a capability assessment, or payee development. The POMS detail efforts adjudicators must take to locate and follow up with beneficiaries before applying N20 status. Of note, management approval is required to apply an N20 suspension.  

Overpayment Waiver Tolerance Increased

The Social Security Administration (SSA) has revised it Program Operating Systems Manual (POMS) to increase the “margin” it tolerates when determining whether collection of a Title II overpayment would “defeat the purpose of Title II of the Social Security Act” from $25 to $55 per month. See GN 02250.100 Defeats the Purpose for Title II - Waiver Determination. 

For a Title II waiver to be granted, overpaid individuals must demonstrate they were without fault in causing the overpayment and that recovery would defeat the purpose of the Act. See 20 C.F.R. §§ 404.506 et seq. (A waiver can also be granted if recovery would “be against equity and good conscience.” 20 C.F.R. §§ 404.509.) Collection would defeat the purpose if it would “deprive a person of income required for ordinary and necessary living expenses.” 20 C.F.R. §§ 404.508.  

In a recent Summary Order, the Court of Appeals for the Second Circuit remanded a claim based on the Administrative Law Judge’s (ALJ’s) failure to develop the record in a case with a pro se claimant. Rivers v. Kijakazi, 2023 WL 2485467 (Mar. 14, 2023). The court relied on its precedents requiring the ALJ to develop a claimant’s medical history where there are deficiencies in the record. See, e.g., Rosa v. Callahan, 168 F. 3d 72, 79 (2d Cir. 1999).

Here, the ALJ was on notice that the claimant had three treating physicians who had treated her for her spinal injury and back pain, including one whom she had seen shortly before her hearing. The ALJ failed to contact any of these physicians for their medical opinions. This was legal error, especially in light of an earlier report in the record from one of the physicians imposing limitations. The claimant had testified that the same physician had indicated her condition had worsened and had encouraged her to apply for disability. The ALJ’s error was compounded by the fact that this claim was filed prior to March 27, 2017, and was governed by SSA’s prior “treating physician regulations,” which accorded controlling weight to well-supported opinions of treating physicians.

The court also concluded the evidence upon which the ALJ had relied was not substantial. Instead, the ALJ’s rejection of the claim appeared largely based on an internally inconsistent report from a consultative examiner hired by the Social Security Administration (SSA). The ALJ further erred by relying too heavily on what he viewed as the claimant’s ability to perform her daily activities adequately, including caring for her children. The court found nothing inconsistent with her claim of back pain and taking care of her children, especially since she  testified as to help she needed from her family. The court also criticized the ALJ’s rejection of the claim based on his perception that the claimant was not receiving the type of treatment generally received for someone with her condition, given that he had no competent medical opinion before him about typical treatment.  

Congratulations to Attorney Mark Schneider of Plattsburgh for this victory. 

Significant changes to New York’s notary law went into effect in January 2023. The amendments to the New York Executive Law allow for electronic notarization, change the requirements for record-keeping and identity verification, and repeal the remote ink notarization provision enacted during the pandemic.   

All New York State notaries must now keep a journal of in-person and electronic acts and services. The contemporaneous record must be kept for ten (10) years and include the date, time and type of act, the name and address of the individual who requires the services, how many services were provided, and how the identity of the individual was verified. There are additional requirements for electronic notarial acts: record of the technology used, the certification authority and the verification providers used.  

The new regulations update how a notary verifies the identity of an individual. A notary may accept a current government identification card with a photo, a physical description and a signature or two current documents issued by a business entity, institution, federal or state government, with the individual’s signature. The notary may also verify identity with an oath or affirmation of a witness who is personally known to both the individual and the notary, an attestation by the notary if the individual is personally known to them, or the oath or affirmation of two witnesses who know the individual personally and provide valid government identification.  

Social Security continues to update policies enacted during the COVID-19 Public Health Emergency. Since the last issue of Disability Law News, the policy requiring masks in SSA’s offices changed, as did the policy for telephone consultative examinations. SSA’s COVID-19 Workplace Safety Plan 3, released on March 27, 2023, outlines relaxed masking requirements in all agency buildings. Masks will no longer be required unless the COVID-19 Community Level for the county in which the office is located is “high.” The Centers for Disease Control and Prevention (CDC) website maintains a COVID-19 County Check database to “know before you go.” Masks will be provided to visitors, if needed, when county community levels are high.

SSA released a new Emergency Message (EM 23027) revising their policy for conducting telehealth consultative examinations (CEs). Disability Determination Services (DDS) must follow the new guidelines as of May 12, 2023, the day after the expiration of the COVID-19 Public Health Emergency. Prior to the pandemic, telehealth CEs were required to take place in agency-provided locations with agency equipment, using secure broadband connections. During the pandemic, claimants and beneficiaries were allowed to attend a CE virtually from a location of their choice. DDS employees will be required to obtain verbal or written consent to schedule a telehealth CE. They must confirm the claimant will use a device with a camera and microphone and will be in a private environment with a reliable internet connection. There are additional requirements for speech and language CEs. The CE providers are ultimately responsible for complying with the Health Insurance Portability and Accountability Act (HIPAA).

The Social Security Administration (SSA) is required to periodically review the current medical condition of all people receiving disability benefits to determine if they continue to have a qualifying disability.  42 U.S.C. §§ 421(h), 423(f); 20 C.F.R. §§ 404. 404.1594 & 416.994a. And see Spotlight on CDRs in the April 2021 edition of this newsletter.

At the commencement of the CDR process, beneficiaries are contacted by SSA for updated disability reports, which has typically been done by mail.  Eligible beneficiaries now have the option to either return the report by mail or complete the forms on-line using their personal my Social Security account.  

If eligible, the person can log in to their account and complete the Continuing Disability Review Report (Form SSA-455) and Authorization to Disclose to Information to the Social Security Administration (Form SSA-827).  Once submitted, they will receive an email confirmation.

Of note, this process is only available after the beneficiary has received a request for an updated disability report in the mail. Nor is it available to beneficiaries who have representative payees.

Did you know most Disability Advocacy Program (DAP) trainings are recorded and available on the Empire Justice Center website? 

Check out “DAP Basics,” a series of short-form videos that break down some of the central elements of Social Security disability law. Here is a list of what is included in the series: 

·         DAP Basics: What is DAP? 

·         DAP Basics: What is SGA? 

·         DAP Basics: What is RFC? 

·         DAP Basics: The Medical-Vocational Guidelines 

·         DAP Basics: The Appeals Process 

·         DAP Basics: Step Four – Past Relevant Work 

·         DAP Basics: Standard of Disability 

·         DAP Basics: SSI/SSD Overview 

·         DAP Basics: SSI Eligibility 

·         DAP Basics: Sources of Law 

Below is a list of other trainings available on our website:  

·         DAP Mechanics: Practical Rules and Considerations for Handing DAP Cases 

·         DAP Basics: Practical Applications for Sequential Evaluation 

·         Yikes: Should I Object?!? 

·         Learning to Use Job Browser 

·         Considering Reconsideration: Strategies for Representing Clients at Recon 

·         Understanding Disability Benefits for Housing Advocates 

·         Working Your Way Through the Sequential Evaluation 

·         Preparing Effective Direct Examination 

·         Countering Evidence from CE, MEs, and MCs & PCs 

·         Developing and Presenting Persuasive Evidence of Mental Limitations 

Feeling guilty that you are goofing off and staring out the window instead of finishing that pre-hearing memo due tomorrow? Maybe your brain needs a break. And if so, it may well be better to daydream than to trawl the internet or play Angry Birds.

According to Gloria Mark, professor of informatics at the University of California, Irvine, “[w]e can’t expect to lift weights nonstop all day, and we can’t expect to use sustained focus and attention for extended periods of time, either.” And taking that break may improve your ability to do quality work. An article published in the journal PLoS ONE in 2022 found that even short breaks of ten minutes or less reduced mental fatigue and improved performance on tasks requiring creativity. The longer the break, the better the performance boost.

Marta Sabariego, an assistant professor at Mount Holyoke College who studies attention and other behaviors, says switching from the task-related network of our brain to the default network can help with problem solving and innovation. Giving our thoughts the room to roam, like in the shower, can lead to creative thinking.

How often do you need to give your brain a break? In this age of multitasking, research shows workers shift from screens or tabs every 44 seconds. These jumps can increase mistakes, reduce creativity, and cause fatigue. As a result, you’ll probably need more frequent breaks. According to Dr. Sabariego, there is no hard and fast rule. She recommends, however, trying to build focus by staying on task for increasing periods. And remember it takes time to get back to work after an interruption.

One of the best ways to take a break may be physical activity in nature, or even a walk through your building. Just don’t scroll through your phone during your walk!

For more on productive breaks, see “How to Tell If Your Mind Needs a Break,” The New York Times, Feb. 3, 2022.