The Supreme Court’s recent decision overturning its longstanding doctrine of deferring to administrative agencies when interpreting statutes and regulations has received much media attention. Rarely have the intricacies of administrative law been in the news. But how will Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), affect those of us who practice administrative law in the context of Social Security cases? In a nutshell, probably not much on a day-to-day basis.  

In Loper Bright, the Supreme upended forty years of precedent by overturning Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 838, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). That decision established what has been known as “Chevron deference”—the principle that a court should defer to the relevant agency as to the best reading of a statute if the statute doesn’t spell out the answer and the agency’s view is reasonable. Now, under Loper Bright, in the absence of an express delegation of authority by Congress to an agency, the federal courts must apply their own independent judgment to decide whether the agency is acting within the authority given to it by Congress. Chevron deference, however, was limited to judicial review of an agency’s view about a legal question—what a statute means—not to an agency’s factual findings. 

An agency’s factual findings, such as the Social Security Administration’s (SSA’s) findings as to disability and decisions based on them will continue to be reviewed under the substantial evidence standard and should be unaffected by the Court’s new decision. The various other levels of deference accorded to agency interpretations and regulations that some may remember from law school (Skidmore, Auer/Seminole Rock, State Farm) rarely come into play in individual Social Security claims. For an exhaustive review of deference and Social Security claims, see the Journal of Law and Policy, Administrative Deference and the Social Administration: Survey and Analysis.   

In what types of cases might these questions of deference arise in the Social Security context? A recent NOSSCR article provided a helpful and more succinct review of only Supreme Court cases involving deference and the SSA. 

After significant pressure from advocates, the courts, the media, and Congress, the Social Security Administration (SSA) has scaled back its reliance on select obsolete jobs when making findings of disability. It has been common and maddening to see SSA deny a disability claim by citing obsolete occupations as evidence of the ability to adjust to work that exists in significant numbers in the economy. SSA’s practice of citing to jobs like “nut sorter” and “pneumatic tube operator” is based on SSA’s continued reliance on extremely outdated data from the Dictionary of Occupational Titles (DOT), despite the DOT not being updated in decades. 

On June 22, 2024, SSA released two Emergency Messages (EMs) limiting the use of select obsolete jobs. In one change, under EM-24026, SSA identified 114 occupations from the DOT that exist in very limited numbers, if at all. SSA identified the jobs as existing with fewer than 1,000 employees per U.S. Census Division in an analysis of employment data from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS).

EM-24026 prohibits adjudicators from citing these 114 jobs when determining the ability to perform other work in the economy. The guidance in the EM does not apply to determinations of a person’s ability to perform past relevant work. This specific EM alone, while welcome, will help relatively few claimants because the jobs involved are mostly skilled and rarely cited.  

A second new policy, EM-24027, addresses 13 DOT occupations that are encountered far more frequently by claimants, and are considered some of the most notoriously archaic. SSA notes that these are occupations that many federal courts have called into question. For these jobs, SSA will now require additional evidence before they can be relied upon to deny a claim.  

The Social Security Administration (SSA) recently suspended its processing of many of its continuing disability reviews (CDRs) through the end of its fiscal year 2024. The suspension was announced on June 20, 2024 as a one-time instruction in Emergency Message (EM) 24021 REV. The EM has a retention date of September 30, 2024. 

SSA had previously lowered its target for full medical CDRs from 575,000 to 375,000 in its budget appropriation for the year. Having reached its target, SSA suspended much of its CDR workload to allow the state Disability Determination Services (DDSs) to focus on initial and reconsideration cases. For the remainder of FY 2024, the field offices will not send additional full medical CDRs to DDS. 

The DDSs are instructed to take no action for the remainder of FY2024 on any full medical CDRs already pending. This includes stand-alone Age-18 cases without an associated initial claim. Any Consultative Examinations (CEs) scheduled after June 21, 2024 for those cases are to be cancelled. 

DDS will continue to work on CDRs with an associated initial claim. Other CDR case types that are excepted from suspension include cases involving low birth weight babies, expedited reinstatement, cessation appeals (pre-hearing, disability hearing, or OHO), fraud or similar fault, or Congressional inquiries. 

Claimants with CDRs pending may not be alerted to the change. The EM states that DDS is “not responsible for notifying beneficiaries regarding the suspension of the CDR.”  

Recent news stories highlighted the release of over $900 million in underpayments for FY2024 by the Social Security Administration (SSA), as of June 2024. What is behind this significant number?  

As part of its efforts to advance equity, SSA has focused on ways to reduce Supplemental Security Income (SSI) underpayments and prioritize addressing barriers that prevent timely release of underpayments. Starting in March 2024, SSA changed its policy regarding peer review of underpayments greater than $5,000 and increased the amount from $5,000 to $15,000.    

SSI benefits are still released in installments, but the policy change means that underpayments totaling less than $15,000 are now released to claimants more quickly, without needing to be reviewed by another SSA employee.  

To further expand the release of underpayments to SSI recipients, advocates have also urged SSA to simplify its rules regarding dedicated accounts for children. While it has not announced any changes, SSA noted these barriers in its Equity Action Plan 2023 Update, and its regulatory agenda for Spring 2025 also includes new proposed rules to expand the use of these accounts based on input from advocates.

The Social Security Administration (SSA) has changed its procedures for dating its notices, decisions, and other correspondence, and relatedly, the agency has also changed its policies about how it calculates its deadlines.  Most of the mail sent from the Office of Hearings Operations, including administrative law judge decisions, is processed through a central printing facility.  

SSA regulations provide that the date an individual receives notice is “5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.” (See 20 CFR 404.901 and 416.1401.) To account for time involved in using the central printing facility, SSA will factor in an additional three days of mailing time, beyond the five provided for in the regulation when calculating a deadline to respond to a notice that was sent via central printing.  
 
In the past, SSA accounted for the time required to use central printing by postdating those mailings by 3 business days. SSA will no longer postdate documents, effective May 20, 2024. 

The changes are reflected in Hearing, Appeals, and Litigation Law Manual (HALLEX) HALLEX I-2-0-80 “Guidelines for Calculating Timeliness of Responses”.  The Appeals Council will continue to evaluate timeliness of a request for review pursuant to existing policies and will assess whether good cause exists for a late filed request for review, including any delays due to central print mailing time. 

So how do you know if a notice was sent from central printing versus manually? SSA’s webpage has a sample image of one here, but it encourages claimants to contact the relevant hearing office to confirm. 

The Social Security Administration (SSA) recently enacted changes in how a claimant’s past work is evaluated at step four of the Sequential Evaluation. As discussed in the April 2024 issue of Disability Law News, Social Security changed the definition of past relevant work.  In June, in accordance with its new regulations, SSA released a new Social Security Ruling (SSR), SSR 24-2p, interpreting the new rule for claims pending or filed on or after June 22, 2024. It explains how SSA determines whether an individual has the residual functional capacity (RFC) to return to work they have performed in the past. The new SSR rescinded SSR 86-8, and rescinded and replaced SSRs 82-61 and 82-62. Before the changes, an adjudicator reviewed work the claimant performed fifteen years prior to the date of adjudication. The new rules shorten the past relevant work (PRW) period to five years and exclude work that lasted fewer than thirty calendar days.  

The new ruling includes a helpful Q&A section and charts that define the relevant period for various claims. For example, the 5-year relevant period for Title II claims with a Date Last Insured (DLI) in the future and Title XVI adult claims, ends on the date of adjudication. For a Title II claim with a DLI in the past, the relevant period ends on the DLI. Social Security surmised that the federal courts would apply the rulings in effect when the determination was made. Yet if a case is remanded, the new rules will apply. 

Disability advocates, including DAP advocates from Empire Justice Center, Urban Justice Center, and New York Legal Assistance Group, submitted comments to the proposed rule supporting the changes. Advocates expect the changes will improve the adjudicative process by reducing the burden on claimants to accurately report past work and avoid inconsistencies that may be viewed negatively by adjudicators when deciding their claim. Accurate reporting by claimants also means that they will be evaluated based on skills they currently hold, which follows other SSA policies related to skills attained through education. 

After the new rules took effect, Social Security released two Emergency Messages (EMs) clarifying how its policies for res judicata and reopening will be affected by the changes. EM-24028 explains the res judicata policy for claims denied before June 22, 2024. If a claimant was found “not disabled” at step four of the sequential evaluation or able to perform “other work” at step five based on a job(s) or skill (s) that would not be considered relevant under the new rules, res judicata will not bar readjudication of the claim. EM-24032 explains the new policy for reopening a claim after the PRW rule change. A claim may be reopened within one year of a final determination or decision by the agency if, when applying the new PRW rules, there would have been a more favorable determination or decision. Additional conditions apply and are discussed in the EM.  

How confusing - and frustrating – can it be when a current beneficiary of Supplemental Security Income (SSI) becomes eligible for Title II benefits due to earnings or the death or retirement of a parent, only to be denied and found not disabled on the new application? What about the doctrine of collateral estoppel, that some may vaguely recall from Civil Procedure in law school?  Under a recent policy change, Social Security field offices will once again be able to apply collateral estoppel to a prior determination of disability, helping to avoid unnecessary denials, duplication, and processing time. 

According to the Social Security Administration (SSA), collateral estoppel involves “issues previously decided”: 

An issue at your hearing may be a fact that has already been decided in one of our previous determinations or decisions in a claim involving the same parties, but arising under a different title of the Act or under the Federal Coal Mine Health and Safety Act. If this happens, the administrative law judge will not consider the issue again, but will accept the factual finding made in the previous determination or decision unless there are reasons to believe that it was wrong. 

 20 C.F.R. §§ 404.950(f) & 416.1450(f).  

So why were these claimants being denied? Back in 2019, SSA made major revisions to its collateral estoppel POMS, including a provision that collateral estoppel would not apply if, for example, the beneficiary had been found disabled under the mental listings prior to 2017. See POMS DI 27515.005, which identifies those listings in addition to the mental listings that have substantially changed or become more restrictive, with their effective dates. Claims decided before the changes were not given collateral estoppel effect on a new application. Similarly, changes to the medical-vocational rules could preclude a subsequent allowance and trigger a CDR. The example that was noted in POMS DI 27515.005.A specifically referenced the recent removal of inability to communicate in English. 

SSA Increases Administrative Waiver Tolerance to $2,000 

The Social Security Administration (SSA) has taken more steps towards alleviating the burden of overpayments by updating its policies to increase the administrative waiver tolerance from $1,000 to $2,000. Effective May 13, 2024, when a person requests an overpayment waiver and the total amount of their liability is $2,000 or less, recovery will be waived, unless there is some indication that the person may be at fault.  

SSA updated POMS GN 02250.350, GN 02201.013 and SI 02260.030 on May 20, 2024, to reflect the new $2,000 threshold amount for both Social Security Disability (Title II) and Supplemental Security Income (SSI) (Title XVI) overpayments. Administrative waiver does not require full development or submission of Form SSA-632, Waiver of Overpayment Recovery or Change in Repayment Rate. A request for reconsideration should be considered a request for an administrative waiver. The POMS applicable to SSI administrative waiver states that a request can be made orally. See SI 02260.030B. 

The administrative waiver is not available if a person has multiple overpayments that result in total liability of over $2,000. SSA looks to the original amount of the overpayment when considering administrative waiver, so if an overpayment of more than $2,000 has been reduced to below that threshold by repayment, they are not eligible for waiver based on the reduced amount.

SSA’s policy of waiving smaller overpayments is sometimes referred to by advocates as “automatic waiver.” However, in practice it is not as straightforward as that may sound. An administrative waiver cannot be processed without an affirmative request from the claimant. POMS SI 02260.030B and POMS GN 02250.350. And while completion of SSA-Form 632 and full development are not required, some advocates encounter field offices that demand greater development to assess fault. Under the POMS, such development is required only if, “from the facts apparent on the face of the waiver or reconsideration request,” there is “an indication of fault.”  See SI 02260.030C.2  and POMS GN 02250.350A. Both POMS offer examples that may indicate fault.  

For SSI overpayments between $1.00 and $30.00, there is a presumption of being without fault. SI 02260.030. 

As reported in the April 2024 issue of this newsletter, SSA had recently, beginning March 24, 2024, stopped intercepting a person’s full monthly benefit for Title II overpayments and began using a default rate of 10 percent, or $10. The agency also expanded the repayment period from 36 to 60 months. The agency announced that it is updating its policies to shift the burden away from the claimant when determining fault. SSA is also continuing to streamline the waiver process. 

On June 6, 2024, the New York Legal Assistance Group (NYLAG) reported that it had recently obtained from the Social Security Administration (SSA) section GN 00203.011 of its Program Operations Manual System (POMS), which relates to SSA policies for providing language assistance to beneficiaries. The POMS had not previously been made available to the public by SSA and was obtained by NYLAG pursuant to a Freedom of Information Act (FOIA) request that NYLAG had made in December 2023. 

SSA provides interpreters free of charge to individuals requesting language assistance or who demonstrate a need for language assistance.

The newly released POMS section includes important information for SSA recipients and advocates, including the instructions issued to SSA employees on how to interview with the assistance of an interpreter; who can act as a qualified interpreter and translator; and when recipients with limited English proficiency have good cause for late filings.  

The full text of POMS GN 00203.011 is available here.

As reported previously in these pages, since 2017, 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, 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 then governing prior regulations. Richards v. Commissioner of Soc. Sec., 2024 WL 1673279 (2d Cir. Apr. 18, 2024). The ALJ erred, under the treating physician regulations in effect for applications filed before March 2017, by offering only a cursory explanation as to why the treating psychiatrist’s opinion was entitled to “little weight.”  

The ALJ merely concluded that the opinion was “inconsistent with objective mental status examination findings, as well as the lack of inpatient treatment during the relevant period.” 

The ALJ failed to cite any treatment record that undermined the opinion. Nor did the ALJ appear to consider the remaining  Burgess  factors, including the frequency, length, nature, and extent of treatment, the amount of medical evidence supporting the opinion, and apart from a cursory reference to his psychiatry degree, whether the treating source was a specialist. The court remanded the claim, emphasizing that the ALJ must follow the proper steps for evaluating the opinion evidence.  

While this an encouraging decision, bear in mind that over the past several months, the court has issued several other summary affirmances, finding among other things, that although the ALJs failed to consider the “Burgess” factors explicitly, they nevertheless gave good reasons for rejecting the opinion evidence.  

DAP advocates are reporting an increase in remands from the Appeals Council (AC) for vocational witness (VE) testimony that fails to resolve apparent conflicts with the Dictionary of Occupational Titles (DOT) and the Selected Characteristics of Occupations (SCO). Mike Telfer, an attorney at Legal Aid Society of Northeastern New York, shared a recent example where the AC ordered the administrative law judge (ALJ) to obtain VE testimony that evaluates “all apparent conflicts” before relying on the evidence to make a disability determination. In Mike’s case the ALJ relied on the VE’s testimony that his client could work as a document preparer, addresser, and surveillance system monitor, occupations often described as “obsolete” for the antiquated tasks they describe, including microfilming, rubber stamping, and addressing envelops by hand or typewriter. 

As reported earlier in this issue of Disability Law News, SSA in June 2024 changed its policy with respect to these specific occupations, and is now requiring a heightened level of evidence from a VE before an ALJ can cite to those jobs in support of denying a claim. The ALJ must cite in the decision evidence that the demands of the job are consistent with the person’s residual functional capacity, and that the job exists in significant numbers.

In Mike’s case, the AC instructed the ALJ to obtain additional testimony from the VE about whether these jobs can be performed with “more modern tools or processes,” and the basis for that knowledge. Is the AC trying to avoid a federal court appeal by “fixing” the conflict themselves? It certainly seems so. Thank you for sharing the good news, Mike! 

In a typical disability appeal, a claimant is rarely denied at the first step of the sequential evaluation, on the basis of engaging in substantial gainful activity (SGA). But when SGA questions do arise in a case, they can be complex and fact intensive. Eileen Tchao, an attorney with Legal Aid Society of Northeastern New York, recently won a case at the hearing level by arguing that earnings during the adjudication period did not constitute SGA.

Eileen spent hours poring over her client’s paystubs to deduct paid time off and NYS healthcare worker bonuses. She also obtained a statement from the employer that her client’s work was “subsidized” at a rate of 20%. Once she had reduced the overall amount, she argued that the administrative law judge (ALJ) should average the remaining earnings, which brought the monthly amounts below the SGA limit. The ALJ granted the case “on the record,” without a hearing, and commended Eileen’s work. Congratulations!  

William Holland, attorney at Legal Aid Society of Northeastern New York, recently received a remand from the Appeals Council (AC) for a client who uses a cane to ambulate. The AC ordered the ALJ to consider “substantial evidence” that William’s client used a cane more often than the limitations described in the residual functional capacity (RFC) determination. The ALJ determined the client needed a cane for “prolonged ambulation, walking on uneven terrain, or ascending and descending slopes.” 

But the AC questioned whether the ALJ fully considered the client’s maximum residual functional capacity (RFC) and explained the rationale for the limitations. The AC pointed out that none of the medical providers, including the State agency medical consultants, stated that the client needed a cane only for those situations described in the RFC. Way to go, William! 

In an interview with AARP in June, Commissioner of Social Security Martin O’Malley prompted speculation among advocates who were intrigued by a comment he made about a wax statue at Social Security headquarters. The reporter asked him about being the first Commissioner to have previously served in elective office. O’Malley replied by saying "Second! I’ll show you the wax figure down the hall." 

Advocates wondered: “Who was that other Social Security Commissioner who had previously served in elective office? Is the "wax figure" business just some odd figure of speech or some sort of reality?” 

One of our Disability Advocacy Program (DAP) Statewide Support Attorneys, Emilia Sicilia, investigated while in Baltimore recently and confirmed that indeed, there is a wax statue at Social Security headquarters, and it is of Arthur J. Altmeyer, a man FDR called “Mr. Social Security” and who served as the agency’s first Commissioner. Although Altmeyer held several other public offices and toyed with a run for Senate, it is not immediately apparent that he or any of his other fellow former commissioners ever held elective office.  

The wax statue is among several exhibits and artifacts featured at the Social Security History Museum, located within Social Security headquarters in Woodlawn, Maryland.