1300 I Street, NW, Suite 825, Washington, DC 20005 1300 I Street, NW, Suite 825, Washington, DC 20005
SSA’s Office of Hearings Operations (OHO) has expressed to NOSSCR their renewed commitment to reducing hearing processing times—and they are asking for our help. There is currently a large nationwide disparity in hearing wait-times, with 9 hearing offices across the country clocking-in at a stunning processing time of more than 556 days (the goal is 270 days). When claimants opt-in to telephone or online-video hearings (OVH—using Teams), OHO is able to balance workloads across regions, resulting in nationwide wait-time equity, and significantly reducing wait-times for those in the most backlogged regions.
As Appointed Representatives, we are prohibited from unreasonably delaying, or causing to be delayed, without good cause, the processing of a claim at any stage of the administrative decision-making process (20 C.F.R. § 404.1740). While it is always important to honor the claimant’s hearing modality wishes, claimants must be made aware of delays caused by insisting on in-person hearings. OHO has expressed concern that some firms are limiting claimants to only in-person hearings. In general, representatives should seek to avoid “blanket” requests that all hearings be in-person. Instead, representatives should discuss with each claimant the pros and cons of each hearing modality option, including the likelihood of a faster scheduling time with a telephone or online-video (Teams) hearing.
The attached letter from SSA includes a map of average processing times per hearing office. If you have cases in the slowest areas, you should be aware that SSA is focusing attention on the actions of representatives with cases in those hearing offices—particularly, whether firms are insisting on in-person hearings as a blanket policy. You should also revisit whether you are applying caps on your monthly availability that result in slower processing times due to scheduling delays. The difference between a “green” area and a “red” area is more than 280 days of delay for claimants, and our community of representatives should be part of the solution to that disparity.
The data indicates that there has not been a significant decline in award rate due to the increase in telephone and online-video hearings—in fact, 2020-2022 saw some of the highest award rates in recent history. While the overall award rate declined slightly in 2023, it is important to note that the denial rate also declined. A record number of cases were dismissed, which correlates to the significant decline in claimants having representation at the hearing level. Once again, this emphasizes our vital role. We work together with SSA and OHO to support our clients, and we want NOSSCR’s members to be a part of removing the “red” zones from the map.
This month I would like to bring two important things to your attention:
Overpayments
As you have seen by now, Commissioner O’Malley has heard NOSSCR’s concerns and has taken action. As announced during his Congressional testimony, effective March 25, 2024, instead of withholding 100% of a Social Security Disability benefit to recover an overpayment, the default rate is now 10% of the monthly benefits. This is a tremendous result and I salute NOSSCR’s advocacy on this topic and the difference in claimant’s lives this will make. Read Social Security’s announcement here, and be sure to review their updated Emergency Message, advising SSA’s staff on how to process these new withholdings.
Please also note that on the final day of our Nashville conference we are holding a symposium on overpayments. We hope to see you there as NOSSCR, in collaboration with Cornell University, will provide you with the tools needed to help claimants with overpayment cases. Armed with this information I would encourage each of you to take on one to two overpayment cases. NOSSCR has resources to assist you if you are not sure where to start.
Rudolph Patterson Scholarship
The Rudolph Patterson scholarship honors a founder, past president of NOSSCR, and tremendous advocate for the disabled. NOSSCR is proud to be able to award scholarships to members, and would love to have the opportunity to help as many members as possible, but we need your help.
Thus far in 2024 we have awarded one scholarship to Krisztina Szabo, Deputy Director of Legal Services at Whitman-Walker, a greater D.C. organization that provides stigma-free, culturally competent and vital healthcare to the gay, lesbian, bisexual, transgender and queer communities, as well to those living with or affected by HIV; and to individuals who cannot afford to pay or feel uncomfortable in other healthcare settings.
We have received inquiries from a number of other deserving individuals and organizations. We would love to provide more scholarships, and with your generosity we could.
If you would like to honor the memory of Rudolph Patterson and help other members we are accepting donations in any amount. Please click this link to donate to the Rudolph Patterson scholarship fund OR call NOSSCR at 202-849-6466 and indicate that you would like to donate to the fund.
The Rudolph Patterson Scholarship is housed under the NOSSCR Foundation, a 501(c)(3) charitable organization. Thank you for supporting the membership with your generous gifts!
Here at NOSSCR we are hard at work serving as your advocates with the Commissioner, the agency generally, and on Capitol Hill. This past week, NOSSCR was proud to represent you during hearings before Senate and House subcommittees where we heard directly from Commissioner O’Malley about the state of the agency, its need for vital funding, and his immediate plans to improve and revitalize the agency.
In preparation for these hearings, NOSSCR had many crucial conversations with Senators, Congressional representatives, and the Commissioner. These ongoing conversations ensure that the voices of the representative community are heard and that we are included as respected partners in the conversation about the agency’s direction.
Here are our key takeaways from those hearings:
You can read the Commissioner’s written testimony below:
NOSSCR’s advocacy is making an impact. In October, during CEO David Camp’s Congressional testimony, we raised the ongoing issue of a representative’s inability to know whether SSA had attached the 1696 to a claimant’s file. SSA heard us and introduced the IC/RC Status Report.
We recently wrote the attached letter about the time savings produced simply by allowing for the digital sharing of information created by the IC/RC Status Report, and Congress took notice.
Watch Rep. Blake Moore (R-UT) enter our letter into the Congressional Record during last week’s hearing:
We’re incredibly excited that our Conference is just over a month away—we’re looking forward to seeing all of you and hearing and learning from our esteemed slate of speakers.
Our General Session on Thursday morning is jam-packed with speakers who you won’t want to miss!
Here’s a sampling of the speakers who will be joining us in-person:
We are also excited to have the following speakers join us virtually:
Register now before prices go up on April 5!
We’ll see you soon!
When developing your theory of the case (you should always have a theory of why your claimant is disabled), one of the first things to look at is whether your claimant can grid out.
The only six good grid rules are:
>=45 yo, sedentary, illiterate, unskilled
>=50 yo, sedentary, no transferable skills
>=50 yo, light, illiterate, unskilled
>=55 yo, light, no transferable skills
>=55 yo, medium, limited education, no work
>=60 yo, medium, marginal education, unskilled
Who is illiterate? “Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists …” 20 C.F.R. § 404.1564(b)(1) (emphasis added). Note that the use of “or” and the inability to do one or the other will render a person illiterate. It does not have to be both.
SSR 20-1p says that someone with at least a 4th grade education will not be considered illiterate. But the claimant can provide evidence that they are, in fact, illiterate even if they have a 4th grade education. So, if your claimant has at least a 4th grade education but is illiterate, it is your job to obtain and submit evidence to prove they are, in fact, illiterate.
What are the education levels? Per 20 C.F.R. § 404.1564, marginal education is 6th grade or less, and limited education is 7th – 11th grade education. But keep in mind that per SSR 83-11 testing supersedes years of education. So if, for example, your claimant went through the 8th grade but is actually only at a 5th grade level, you will need to submit testing to prove that they are at that level. And be prepared to have to educate the ALJ about SSR 83-11.
As for skills and whether they are transferable, see my June 2023 Forum article about this topic.
Keeping these grids in mind as you prepare your case will allow you to prepare the case properly and show the ALJ that your claimant grids out and is disabled.
Almost anyone requesting medical records regularly has heard of Ciox Health, MRO, Smart Corp., MedSouth, or any of a dozen other copy services for health care providers. Often, the copy service charges (or, at least, tries to charge) outrageous fees for the records. Often, too, the excessive charges violate state or federal law and the copy service fails to provide the records timely and without prepayment.
It is time for a change. On March 25, 2024, NOSSCR filed a complaint against CIOX Health with the U.S. Department of Health and Human Services’ Office of Civil Rights, seeking to change some of these problems.
NOSSCR specifically claimed that CIOX Health’s practice was to require prepayment of fees, delaying the records and causing a considerable amount of wasted time on behalf of those requesting records. Also, federal law limits CIOX Health to “reasonable fees.” We contend any fee above what the state allows them to charge is “unreasonable.” Moreover, CIOX makes it difficult to correct their mistakes.
Systemic violations include:
a. Ciox Health has willfully neglected to provide requested PHI/medical records prior to payment, in violation of 45 C.F.R. § 164.524(b)(2);
b. Ciox Health has willfully neglected to provide adequate notice of the reason for failing to provide the requested PHI/medical records in violation of 45 C.F.R. § 164.524(d)(2)(i);
c. Ciox Health has willfully neglected to provide adequate notice of the individual’s review rights and/or how the individual may complain to the covered entity, in violation of 45 C.F.R. § 164.524(d)(2)(ii-iii); and
d. Ciox Health has willfully neglected to charge fees that are “reasonable,” including an excessive “basic fee,” “retrieval fee,” “per page copy fee,” “electronic data archive fee,” and charges in excess of that allowed by state law, in violation of 45 C.F.R. § 164.524(c)(4).
We could only do this with the assistance of NOSSCR members Beth Bates of West Tennessee Legal Services (and legal secretary Diana Wray) and Andrew Sindler of Severna Park, Maryland.
We continue to develop the evidence in this case. If you are interested in providing an Affidavit or Declaration and documentation (such as requests, invoices, and the like), PLEASE contact tom.krause@nosscr.org.
On March 8, 2024, NOSSCR sent the attached letter to Commissioner O’Malley, asking him to take immediate action on the improper overpayments that have been issued to Holocaust Survivors. We are incredibly grateful for the tireless work of two outstanding NOSSCR members, Avram Sacks and Michelle Spadafore, both of whom routinely represent these vulnerable beneficiaries, and both of whom provided crucial background on this topic so that NOSSCR could amplify their advocacy.
Social Security is soliciting comments on their proposed changes to the Overpayment Waiver forms, their collection of information for those who participate in post-award vocational rehabilitation programs, and their ability to identify callers to SSA’s 800# via digital SSN input. NOSSCR will carefully review these proposals and will submit formal comments at a later date. We encourage our members to do the same. The comment period is open until May 13, 2024. Please reach out to NOSSCR if you would like to discuss these proposals in greater detail before commenting.
Read the full text and submit comments here.
On March 11, 2024, the Biden-Harris Administration released the President’s Budget for Fiscal Year 2025 for the Social Security Administration. As the agency notes, “key investments focus on improving the customer experience, reducing wait times at all stages of the disability process and on our National 800 Number, modernizing our information technology, improving overpayment and underpayment processes, and advancing equity by increasing access to our programs.”
NOSSCR has long advocated for improvements in each of the cited areas, and we are encouraged by the agency’s commitment to change and modernize. You can read the Commissioner’s statement on the President’s Budget here.
During his testimony last week, Commissioner O’Malley explained to lawmakers how crucial adequate funding is for the necessary improvements that the agency needs to make. Please review the Commissioner’s detailed slides from his testimony below and encourage your elected representatives to support increased funding for Social Security.
Save your spot now for two annual conference events you won’t want to miss!
May 8: Scully Networking and Awards Dinner
May 10: President’s Reception
How to register:
As we highlighted in our January 2024 issue, recent data has revealed troubling news for SSI child applicants with Sickle Cell disease. In response to that news (and the Congressional inquiry that followed), Commissioner O’Malley penned the following letter:
On December 6, 2023, Congressman Jimmy Panetta (D-CA) introduced H.R. 6640, the Marriage Equality for Disabled Adults Act. The bill has 4 cosponsors, all Democrats. H.R. 6640 was referred to the House Committee on Ways and Means and the House Committee on Energy and Commerce, where it is awaiting further action.
Currently, when a Disabled Adult Child (DAC) marries a non-disabled person, the DAC beneficiary loses Social Security benefits. Among other things, this legislation would eliminate the requirement that a DAC beneficiary be unmarried and ensure that in a marriage between a DAC beneficiary and any other person, both spouses may continue to receive SSI and Medicaid as if they were unmarried.
Read the full text below:
Ninth Circuit Remands Case Where the ALJ Failed to Expressly Describe “Medium” Work as Limited to “About Six Hours” of Standing and Walking.
On March 26, 2024, the Ninth Circuit decided Conway v. O’Malley, No. 22-35427, 2024 WL 1263477 (9th Cir. Mar. 26, 2024). In Conway, the Court reversed and remanded the ALJ’s denial of benefits. The ALJ’s hypothetical question to the vocational expert (VE) asked about an individual “who’s limited to medium work, SVP 2, entry-level work.” The ALJ, then, implicitly found the claimant was limited to standing and walking about six hours out of an eight-hour workday. See SSR 83-10 (“A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday”). The VE initially identified jobs the claimant could perform if limited to “medium” work; on cross-examination, the VE testified those jobs were not available if the claimant was limited to standing and walking about six hours a day. Because the ALJ’s hypothetical did not expressly incorporate the six-hour standing and walking limitation, and cross-examination revealed that the expert did not understand the ALJ’s hypothetical to impliedly include that limitation, the ALJ failed to accurately describe Conway’s limitations. The Court remanded the claim to further develop the issue of transferable skills for a claimant who was of Advanced Age. See 20 C.F.R. § 1563(e); SSR 82-41.
Congratulations to NOSSCR Sustaining Member and Board Member Kevin Kerr and Paul Warren!
Practice tip: If the ALJ limits the claimant to “light” or “medium” work, ask the vocational expert how many of those jobs are available to someone limited to standing and walking about six hours a day. And ask for the source of that number as most Bureau of Labor Statistics data assumes someone limited to “light” or “medium” work can stand and walk eight hours a day. At or after the hearing, check vocational resources such as the Occupational Requirements Surveys to confirm the vocational expert’s testimony.
Seventh Circuit Remands Case with Mixed Medical Records
The Seventh Circuit recently decided Martinez v. Kijakazi, 71 F.4th 1076, 1079 (7th Cir. 2023), holding that the ALJ’s consideration of medical records belonging to an individual other than the claimant was a prejudicial error. A chiropractor mixed nine pages of records from another patient in with the claimant’s medical records. The Appeals Council removed the pages. The Commissioner argued the error was harmless, but the Court did not agree. The ALJ cited the exhibit with the mixed records seven times. In one instance, the ALJ clearly referred to Martinez’s records. A second reference helped Martinez. Other references were not as clear. The Court found the issue of the mixed records permeates the ALJ’s findings regarding the medical opinion evidence and evaluation of the claimant’s symptoms. The Court found the error was not harmless. The Court went on to address other issues. The Court questioned the ALJ’s refusal to give weight to the statement of the claimant’s friend. That the author of the statement was the claimant’s friend and was not a medical source were not proper grounds to disregard the friend’s statements. The ALJ also failed to provide a “logical bridge” between the claimant’s failure to quit smoking despite medical advice and the evaluation of his symptoms. Finally, the Court found Martinez’s lack of inpatient psychiatric treatment did not indicate a claimant was therefore capable of gainful employment.
Congratulations to NOSSCR Sustaining Member Ann Trzynka and to Jennifer Fisher!
Are you admitted to a Federal District or Circuit Court? Are you willing to service as a pro hac vice application sponsor or local counsel for a fellow NOSSCR member?
We routinely get questions from NOSSCR members seeking to file a federal court case in jurisdictions other than their own.
If you are willing to be contacted by other NOSSCR members to serve in this capacity, please email nosscr@nosscr.org and let us know in which jurisdictions you are admitted. Please include “pro hac vice list” in the subject line. Upon member request, we will then share your contact information with any member seeking a contact within your region. You have no obligation to assist the member after contact is made, we are simply trying to help members network.
In addition to May’s Conference, NOSSCR has an exciting schedule of upcoming events.
So when you’re submitting your availability to ERAP, don’t forget to reserve time for these upcoming opportunities:
SSA issued an Emergency Message clarifying their policy on Protective Filing Dates.
The policy change indicates that “effective 03/12/2024, technicians will no longer create separate protective filing records (i.e., multiple protective filing records) for the same SSN if a protective filing record already exists for the same claimant and same benefit program (e.g., T2, T8, T16) and the closeout period (i.e., 6 months, 60 days) has not expired. This change will ensure that we use the correct PFD by reducing the number of records to review and eliminates unnecessary closeout letters mailed to claimants.”
SSA made this change to avoid overlapping protective filing dates and confusing closeout letters. SSA will still have a responsibility to identify and evaluate potential earlier protective filing dates previously established.
Read the full text of EM-24006 here.
The National Board of Trial Advocacy (NBTA) is coming to Nashville and NOSSCR’s Annual Conference this May. We are grateful for our continued partnership with NOSSCR and the opportunity to visit with conference attendees again this year.
For those attending the conference, please stop by our booth and learn about our organization and becoming board-certified by the NBTA, the only national certifying body for social security disability (SSD) law. In addition, discover NBTA’s new lifelong learning program – NBTA Certified Litigation Excellence – which launches in April. The program is our inaugural effort to provide educational sessions to our membership, spread among our core board certification specialties, including SSD law. Perhaps your booth visit sparks a topic or presentation idea, our program committee invites such input.
For those unable to make it to Nashville, the NBTA is a national, nonprofit organization devoted to improving the quality of trial advocacy and elevating the legal profession. Founded in 1977, the NBTA is the oldest and largest ABA-approved accrediting legal specialization body. Currently, there are 44 NBTA board-certified SSD lawyers. Members of NOSSCR and NBTA aren’t just leaders in name. With members from coast to coast, our attorneys are leaders nationwide, statewide and on the local level. Together, we can identify candidates for board certification, harness your specialty’s expertise and provide your clients with exceptional legal representation through a national network.
NBTA board-certified lawyers prove themselves to have extensive experience in their specialty and have met objective, rigorous standards. We invite you to become a NBTA board-certified SSD attorney and demonstrate your proven, tested excellence. Visit the NBTA website for more information. Please contact Roger Daily, NBTA Director of Engagement, (rdaily@nbtalawyers.org) with any questions related to certification or our new education program.
SSA’s Office of Retirement and Disability Policy has released the following: A Comparison of Annual Earnings Data in the Current Population Survey and in the Social Security Administration’s Detailed Earnings Record
SSA has also released equity data on SSI applicants, showing 2021-2023 SSI receipts by age and underserved ZIP codes.
Contributions to the National Organization of Social Security Claimants’ Representatives PAC (NOSSCR PAC) are not tax-deductible as a charitable contribution for federal income tax purposes. Contributions to NOSSCR PAC will be used to support federal and state candidates, political parties, and other political committees. Contributions are strictly voluntary. You may refuse to contribute without reprisal. Any proposed contribution level is merely a suggestion, and you are free to contribute more or less than suggested. You will not benefit or be disadvantaged by reason of the amount of your contribution or a decision not to contribute. Federal law requires NOSSCR PAC to use its best efforts to collect and report the name, mailing address, occupation and employer of persons whose contributions exceed $200 in a calendar year. You must be a U.S. citizen or lawfully admitted for permanent residence in the U.S. to contribute.
Please visit the links below to find the latest updates on SSA’s Caseload and ALJ data, contact information, policy changes, and proactive disclosures.
Supported By
NOSSCR is pleased to announce its year-long partnership with Insurance Branch.
https://www.ins.law/
