From Emergency Message EM-23021:
This EM provides instructions for all components to identify and code cases where the claimant resides in Connecticut, New York, or Vermont, and the record contains vocational evidence that the occupation(s) identified at step five of the sequential evaluation process (SEP), 20 CFR 404.1520(a)(4)(v), 20 CFR 416.920(a)(4)(v), require probationary periods where work demands during the probationary period exceed the claimant’s residual functional capacity (RFC). ...
On January 7, 2020, the Court of Appeals for the Second Circuit issued a precedential decision in Sczepanski v. Saul, 946 F.3d 152 (2020). The case addressed the agency’s step five decision to find a claimant not disabled despite the record containing evidence showing that work demands present only during employer-specific probationary periods exceeded the claimant’s RFC. In Sczepanski, the RFC included a limitation that the claimant could miss up to one day of work per month. At the hearing, the claimant’s representative asked the vocational expert (VE) how much absenteeism employers would tolerate at a sedentary, unskilled, entry-level job. The VE replied that the typical employer for those jobs would tolerate no more than two days per month of absenteeism over the course of employment. The representative also questioned the VE about absenteeism during probationary periods at the start of employment. In response, the VE testified that typically, employers would tolerate no absences during probationary periods. The Administrative Law Judge (ALJ) issued a decision finding the claimant not disabled based on the ability to perform other work at step five without addressing whether the claimant could satisfy heightened attendance standards imposed by employers during a probationary period.
The Second Circuit vacated the agency’s decision. The court found the inability to complete a probationary period relevant to the determination of a claimant’s ability to perform other work at step five. In so finding, the court held that “[t]he ability to complete a probationary period is ... tantamount to the ability to keep a job, and … the ability to keep a job is a necessary prerequisite to the ability to engage in substantial gainful activity.” The court remanded the case with instructions for the agency to further develop the record. Specifically, the court instructed the agency to determine whether a significant number of jobs remain that either lack a probationary period or impose probationary-period requirements consistent with the claimant’s RFC.
We are evaluating whether to publish an Acquiescence Ruling (AR) for the Sczepanski decision. While awaiting further guidance, all components should follow the instructions set out in this EM to identify and code cases potentially affected by the January 7, 2020, Sczepanski decision. ...
5 comments:
We have won AC remands on this exact issue, so I am surprised to see that this is something the Comm took to a Court of Appeals.
So, more than three years after the decision, SSA is "evaluating" whether to publish an Acquiescence Ruling? 3 years < 120 days?
(1) We will release an Acquiescence Ruling for publication in the Federal Register for any precedential circuit court decision that we determine contains a holding that conflicts with our interpretation of a provision of the Social Security Act or regulations no later than 120 days from the receipt of the court's decision.
20 CFR § 404.985(b)(1).
On January 7, 2020, the Court of Appeals for the Second Circuit issued a precedential decision in Sczepanski v. Saul, 946 F.3d 152 (2020). . . . We are evaluating whether to publish an Acquiescence Ruling (AR). . . .
Commissioner won at the District Court, the claimant took it to the Court of Appeals.
...interesting. Historically, SSA draws a clear distinction between the ability to get hired, versus sustain work. A probationary period is sortof where those two concepts meet, but ultimately falls on the side of sustaining work. On the other hand, isn't the question how the work is generally performed, not just during the probationary period? I guess it comes down to if the individual could never actually even complete a probationary period, they are not going to be able to perform the work as generally performed.
There is no official SSA policy that I know of on probationary periods. Can you publish an Acquiescence Ruling if there is no contradicting agency policy?
If there was a policy, it should be that inability to pass a job's probationary period due to a disability means you can't do that job. It's an obvious absurdity to say a person can do a job when the evidence shows that if they tried it they would just keep promptly getting fired.
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