Res Judicata Won't Apply To Denials Based Upon Ability To Perform Work Outside The New Five Year Time Period

     From Emergency Message EM-24028:

... We will not apply res judicata to bar readjudication of a previously adjudicated period when the prior final determination or decision finding the claimant not disabled is dated prior to June 22, 2024, if the prior adverse determination or decision found the individual could do:

1. PRW [Past Relevant Work] at step four of the sequential evaluation process (SEP) and the PRW cited is not PRW under the PRW rule; OR

2. Other work at step five of the SEP, work experience was material to the decision, and the individual’s work experience is different under the PRW rule.

When these criteria are met, we will not apply res judicata to deny a subsequent claim or dismiss a request for hearing on that claim. ...

    OK, now what about denials based upon ability to perform other "jobs" that are now considered off limits because they don't really exist any more?

Your Opinion Please

 

online polls

A Busy Saturday For Social Security

      It was a busy Saturday for Social Security. Yes, a busy Saturday!

     First, Social Security has added significantly more data to the online reports available to attorneys representing claimants at the initial and reconsideration levels. I have not tried it yet but early reports I have heard indicate that it’s a work in progress. Still, this holds out the prospect of two advantages. It gives attorneys easier access to information on the status of their clients’ cases. It cuts down on the number of calls to Social Security asking about case status.

     Second, Social Security issued two Emergency Messages on which jobs can be considered as alternative work a claimant can perform if he or she is unable to perform their past relevant work. In the more important of the Emergency Messages there is a list of jobs that cannot be considered absent “additional evidence” from a Vocational Expert:

DOT Code	DOT Occupational Title	DOT Industry Designation
209.587-010	Addresser	clerical
249.587-018	Document Preparer, Microfilming	business services
249.587-014	Cutter-and-Paster, Press Clippings	business services
239.687-014	Tube Operator	clerical
318.687-018	Silver Wrapper	hotel and restaurant
349.667-010	Host/Hostess, Dance Hall	amusement and recreation
349.667-014	Host/Hostess, Head	amusement and recreation
379.367-010	Surveillance-System Monitor	government services
521.687-010	Almond Blancher, Hand	canning and preserving
521-687-086	Nut Sorter	canning and preserving
726.685-010	Magnetic-Tape Winder	recording
782.687-030	Puller-Through	glove and mitten
976.385-010	Microfilm Processor	business services

     In another Emergency Messages there’s this list of jobs that can no longer be considered at all:

DOT Code	DOT Occupational Title	DOT Industry Designation(s)
013.061-010	AGRICULTURAL ENGINEER	professional and kindred occupations
013.061-014	AGRICULTURAL-RESEARCH ENGINEER	professional and kindred occupations
013.061-018	DESIGN-ENGINEER, AGRICULTURAL EQUIPMENT	professional and kindred occupations
013.061-022	TEST ENGINEER, AGRICULTURAL EQUIPMENT	professional and kindred occupations
021.067-010	ASTRONOMER	professional and kindred occupations
029.067-010	GEOGRAPHER	professional and kindred occupations
029.067-014	GEOGRAPHER, PHYSICAL	professional and kindred occupations
045.061-014	PSYCHOLOGIST, ENGINEERING	professional and kindred occupations
045.107-030	PSYCHOLOGIST, INDUSTRIAL-ORGANIZATIONAL	professional and kindred occupations
052.067-014	DIRECTOR, STATE-HISTORICAL SOCIETY	professional and kindred occupations
052.067-018	GENEALOGIST	professional and kindred occupations
052.067-022	HISTORIAN	professional and kindred occupations
052.067-026	HISTORIAN, DRAMATIC ARTS	professional and kindred occupations
052.167-010	DIRECTOR, RESEARCH	motion picture; radio and television broadcasting
072.101-018	ORAL AND MAXILLOFACIAL SURGEON	medical services
072.101-034	PROSTHODONTIST	medical services
193.162-022	AIRLINE-RADIO OPERATOR, CHIEF	air transportation; business services
193.262-010	AIRLINE-RADIO OPERATOR	air transportation; business services
193.262-014	DISPATCHER	government services
193.262-022	RADIO OFFICER	water transportation
193.262-026	RADIO STATION OPERATOR	aircraft manufacturing
193.262-030	RADIOTELEGRAPH OPERATOR	telephone and telegraph
193.262-034	RADIOTELEPHONE OPERATOR	any industry
193.362-010	PHOTORADIO OPERATOR	printing and publishing; telephone and telegraph
193.362-014	RADIO-INTELLIGENCE OPERATOR	government services
193.382-010	ELECTRONIC INTELLIGENCE OPERATIONS SPECIALIST	military services
203.562-010	WIRE-TRANSFER CLERK	financial institutions
235.462-010	CENTRAL-OFFICE OPERATOR	telephone and telegraph
235.562-010	CLERK, ROUTE	telephone and telegraph
235.662-018	DIRECTORY-ASSISTANCE OPERATOR	telephone and telegraph
236.562-010	TELEGRAPHER	railroad transportation
236.562-014	TELEGRAPHER AGENT	railroad transportation
237.367-034	PAY-STATION ATTENDANT	telephone and telegraph
239.382-010	WIRE-PHOTO OPERATOR, NEWS	printing and publishing
297.667-014	MODEL	garment; retail trade; wholesale trade
299.647-010	IMPERSONATOR, CHARACTER	any industry
305.281-010	COOK	domestic service
338.371-010	EMBALMER APPRENTICE	personal service
338.371-014	EMBALMER	personal service
379.384-010	SCUBA DIVER	any industry
410.161-010	ANIMAL BREEDER	agriculture and agricultural service
410.161-014	FUR FARMER	agriculture and agricultural service
410.161-018	LIVESTOCK RANCHER	agriculture and agricultural service
410.161-022	HOG-CONFINEMENT-SYSTEM MANAGER	agriculture and agricultural service
411.161-010	CANARY BREEDER	agriculture and agricultural service
411.161-014	POULTRY BREEDER	agriculture and agricultural service
413.161-014	REPTILE FARMER	agriculture and agricultural service
452.167-010	FIRE WARDEN	forestry
452.367-010	FIRE LOOKOUT	forestry
452.367-014	FIRE RANGER	forestry
455.367-010	LOG GRADER	logging; sawmill and planing mill
455.487-010	LOG SCALER	logging; millwork, veneer, plywood, and structural wood members; paper and pulp; sawmill and planing mill
519.684-010	LADLE LINER	foundry; smelting and refining
519.684-022	STOPPER MAKER	blast furnace, steel work, and rolling and finishing mill
579.664-010	CLAY-STRUCTURE BUILDER AND SERVICER	glass manufacturing
661.281-010	LOFT WORKER	ship and boat manufacturing and repairing
661.281-018	PATTERNMAKER APPRENTICE, WOOD	foundry
661.281-022	PATTERNMAKER, WOOD	foundry
661.380-010	MODEL MAKER, WOOD	any industry
690.682-078	STITCHER, SPECIAL MACHINE	boot and shoe
690.682-082	STITCHER, STANDARD MACHINE	boot and shoe
690.685-494	STITCHER, TAPE-CONTROLLED MACHINE	boot and shoe
693.261-018	MODEL MAKER	aircraft-aerospace manufacturing
714.281-010	AIRCRAFT-PHOTOGRAPHIC-EQUIPMENT MECHANIC	photographic apparatus and materials
714.281-014	CAMERA REPAIRER	photographic apparatus and materials
714.281-018	MACHINIST, MOTION-PICTURE EQUIPMENT	motion picture; photographic apparatus and materials
714.281-022	PHOTOGRAPHIC EQUIPMENT TECHNICIAN	photographic apparatus and materials
714.281-026	PHOTOGRAPHIC-EQUIPMENT-MAINTENANCE TECHNICIAN	photographic apparatus and materials
714.281-030	SERVICE TECHNICIAN, COMPUTERIZED-PHOTOFINISHING EQUIPMENT	photofinishing
715.281-010	WATCH REPAIRER	clocks watches, and allied products
715.281-014	WATCH REPAIRER APPRENTICE	clocks, watches, and allied products
715.381-010	ASSEMBLER	clocks, watches, and allied products
715.381-014	ASSEMBLER, WATCH TRAIN	clocks, watches, and allied products
715.381-018	BANKING PIN ADJUSTER	clocks watches, and allied products
715.381-022	BARREL ASSEMBLER	clocks, watches, and allied products
715.381-026	BARREL-BRIDGE ASSEMBLER	clocks, watches, and allied products
715.381-030	BARREL-ENDSHAKE ADJUSTER	clocks, watches, and allied products
715.381-038	CHRONOMETER ASSEMBLER AND ADJUSTER	clocks, watches, and allied products
715.381-042	CHRONOMETER-BALANCE-AND-HAIRSPRING ASSEMBLER	clocks, watches, and allied products
715.381-054	HAIRSPRING ASSEMBLER	clocks, watches, and allied products
715.381-062	HAIRSPRING VIBRATOR	clocks, watches, and allied products
715.381-082	PALLET-STONE INSERTER	clocks, watches, and allied products
715.381-086	PALLET-STONE POSITIONER	clocks, watches, and allied products
715.381-094	WATCH ASSEMBLER	clocks, watches, and allied products
715.584-014	REPAIRER, AUTO CLOCKS	clocks, watches, and allied products
715.681-010	TIMING ADJUSTER	clocks, watches, and allied products
761.381-014	JIG BUILDER	wooden container
788.684-114	THREAD LASTER	boot and shoe
826.261-010	FIELD-SERVICE ENGINEER	photographic apparatus and materials
841.381-010	PAPERHANGER	construction
841.684-010	BILLPOSTER	business services
849.484-010	BOILER RELINER, PLASTIC BLOCK	foundry
850.663-010	DREDGE OPERATOR	construction; coal, metal, and nonmetal mining and quarrying
861.381-046	TERRAZZO WORKER	construction
861.381-050	TERRAZZO-WORKER APPRENTICE	construction
861.664-014	TERRAZZO FINISHER	construction
899.261-010	DIVER	any industry
899.684-010	BONDACTOR-MACHINE OPERATOR	foundry
910.362-010	TOWER OPERATOR	railroad transportation
910.363-018	YARD ENGINEER	railroad transportation
910.382-010	CAR-RETARDER OPERATOR	railroad transportation
910.583-010	LABORER, CAR BARN	railroad transportation
910.683-010	HOSTLER	railroad transportation
910.683-022	TRANSFER-TABLE OPERATOR	railroad equipment building and repairing; railroad transportation
911.663-010	MOTORBOAT OPERATOR	any industry
919.663-014	DINKEY OPERATOR	any industry
919.683-010	DOCK HAND	air transportation
919.683-026	TRACKMOBILE OPERATOR	any industry
930.683-026	ROOF BOLTER	coal, metal, and nonmetal mining and quarrying
952.362-022	POWER-REACTOR OPERATOR	utilities
960.362-010	MOTION-PICTURE PROJECTIONIST	amusement and recreation; motion picture
960.382-010	AUDIOVISUAL TECHNICIAN	any industry
961.367-010	MODEL, PHOTOGRAPHERS'	any industry
961.667-010	MODEL, ARTISTS'	any industry

     I’m not completely sure about this second list. There aren’t terrazzo finishers or artist’s models anymore? I don’t see being an artist model as a career, however. Aren’t there still embalmers these days?  None of this matters except in rare cases, however.

Jingle Bells, Jingle Bells

     It's June 21. Social Security is today demanding that I tell them which days I'm available for hearings in December. That's more than six months off. They haven't started scheduling for October but if I delay giving them an answer, they'll just assume I've available the whole month and won't let me update it later. 

    Have you decided what days you're going to take off around Christmas? 

     Is it just me or does this seem bizarre, almost abusive? It's certainly unnecessary.

Field Offices Workloads

     Below is an illustration from the testimony of Katherine Zuleger of Wausau , WI. President, Chicago Social Security Management Association, Executive Committee Member, National Council of Social Security Management Associations to the Senate Finance Committee on June 18, 2024 on Work and Social Security Disability Benefits (I can't help thinking that some of this looks like an illustration from a sex education textbook!):

Click on image to view full size

Here are what those acronyms mean, as best I know them:

• AUX -- Auxiliary claims, such as child claims
  
• CDR -- Continuing Disability Review
• CO -- Central Office 
• CSNO -- Centralized Special Notice Option (I don't know what that is.)
• ERPA -- Electronic Representative Payee Annual report
  
• GI -- I think General Information in this context
  
• MDW -- Modernized Development Worksheet
  
• MNUP -- Medicare Non-Utilization Project (to determine why an elderly person isn't using Medicare -- like maybe the person is dead.)  
  
• PSC -- Program Service Center -- where Title II benefits are computed, among other things
• RO -- Regional Office    
• RPMT --  ?
  
• TSC -- Teleservice Center -- where they answer most telephone calls to the 800 number    
  

A One Year Sprint

     Government Executive has out a piece titled Martin O’Malley is on a one-year sprint to save Social Security. The title comes from Government Executive, not O'Malley. I'm sure that O'Malley hasn't claimed that he can "save" Social Security in any time frame, much less in a year.

    The primary thrust of the piece is O'Malley's call for additional budget resources for his agency. However, there's also crowing about O'Malley's accomplishments as Commissioner. O'Malley has certainly changed the tone at the agency and has some important accomplishments in his first six months as Commissioner but I'm pretty sure that the main accomplishment claimed in this piece -- improvement in 800 number answering -- isn't much of an accomplishment.

    Social Security's budget resources are so thin that it cannot make any significant improvement in one area of performance without taking resources from another area of performance -- borrowing from Peter to pay Paul as the old quote goes. If the 800 number service has improved, some other function must have worsened.

    Those on the inside can confirm or deny this but I think that the improvement in 800 number answering has been achieved by calling upon additional backup for the agency's Teleservice Centers (TSC's). The backup comes from the Program Service Centers (PSC's) whose primary responsibility is computing and paying benefits under Title II of the Social Security Act. This has gone on to some extent for many years. I've heard it referred to as "spiking," as in asking the PSC's to step in to handle overflow when there's a spike in call volume. It's not hard to improve 800 number phone answering if all you have to do is to shift the boundary for what's considered a "spike." Of course, the problem is that this causes degradation in the primary PSC workload of computing and paying benefits, which I have seen. Doing a better job of answering the phones is great but asking claimants who have already been approved to wait an extra month for the benefits they are owed isn't so great. Also, changing the spiking policies so that the PSC's give more help to the TSC's isn't sustainable. The payment backlogs will eventually become their own crisis.

    Finding ways to make yourself look better comes naturally to a seasoned politician like O'Malley. It's not a bad thing for the agency. At the least, it gives members of Congress confidence that if they give the Social Security Administration additional operating funds that they will be well spent. There is another side to the coin, however. Some members of Congress can say "Look, it's what we've been telling you. Social Security doesn't need more operating funds. It just needs better management."

Senate Finance Committe Hearing Today

     The Senate Finance Committee is holding a hearing at 10:00 today (June 18) on Work and Social Security Disability Benefits: Addressing Challenges and Creating Opportunities. You can watch it online. Here's the witness list:

• William R. Morton, Analyst, Income Security, Congressional Research Service
• Susan B. Wilschke,  Associate Commissioner, Office of Research, Demonstration, and Employment Support, Social Security Administration
• Erin Godtland, Assistant Director, Education, Workforce, and Income Security, United States Government Accountability Office
• Katherine Zuleger, President, Chicago Social Security Management Association Executive Committee Member, National Council of Social Security Management Association
  

Job Incidence Numbers Are Unreliable

     From Job Incidence Numbers in Social Security Disability Claims: A Case Study and Analysis by Kevin Liebkemann, 44 J. Nat’l Ass’n Admin. L. Judiciary 15 (2024) .

... The case survey results suggest that the SSA’s current vocational evidence system is broken in ways that can hurt disability claimants. Some variance in VE [Vocational Expert] job incidence number testimony may be reasonable. However, survey results document that VEs frequently gave markedly different national job incidence numbers for the same job around the same time, which indicates that the VE’s methodologies employed were inconsistent and thus unreliable. Further, study of cases involving other frequently cited DOT job titles could help determine how widespread this problem is. Some courts have already taken notice of such discrepancies regarding VE testimony of job incidence for other DOT titles. ...

SSA does not currently have adequate rules or enforcement in place to protect the public from the problem documented in the study data, namely VEs giving extremely disparate job incidence numbers for the same DOT title. The study data and case review found that SSA ALJs accepted those disparate numbers. The SSA’s Office of Inspector General that is charged with searching for and reporting systemic weaknesses in SSA programs has not yet issued any investigation reports on the reliability of VE methodologies for determining job incidence numbers. ...

State Disability Determination Services Processing Times

 

Percentage Of Callers To Social Security 800 Number Who Reach An Agency Employee

From Social Security

 

One Man Thinks That The Third Rail No Longer Exists

     John Tammy has written a piece for Forbes arguing that Social Security is no longer the Third Rail of American politics because people will be working until they're 70 and then relying upon their private savings. Social Security hardly matter to anyone not already on benefits or about to be on them. He just wants taxes lowered for money coming out of retirement accounts.

    Talk about being elite and out of touch! Most people don't wait until full retirement age now to start their Social Security benefits. There's no sign that's changing. Blue collar workers can rarely go on working until they're 70. Their health won't permit it. I think that Mr. Tammy hasn't yet experienced any of the ill effects of the aging process. It's coming for you too, buddy, whether you believe it or not. The odds are high that even highly motivated white collar workers don't make it until 70. Private savings? Does Mr. Tammy know anyone with an annual income below $100,000? Apart from their homes, if they're lucky enough to have them, most Americans near retirement age have only modest savings at best.  

    Right wing "thinkers" keep telling us that the key to all retirement problems in the U.S. is lowering the tax bills paid by wealthy Americans. It's what they're paid to write.

Report On OHO Operations

     A statistical report from Social Security on performance at its Office of Hearings Operations:

Click on image to view full size

There's Enough Damn Problems Without This Crap!

@OMalleySSA [a tweet from the Commissioner]

SSA 800 # was slammed on June 3. Over 463,000 calls -- 140k more calls than a few days earlier. Why? In part because of a bogus news story about a $600 payment increase. This is FALSE: No COLA until January 2025. Big thanks to all SSA staff who helped customers with this rumor.

A Modest Idea On Getting Help To Claimants

     I wrote about the reach, and perhaps overreach, of Social Security's controls on fees for representation  before the agency in 2021. I still think what I suggested at that time would be a good idea:

The Social Security Act says that fees for representing claimants must be approved by the agency. 42 U.S.C. §406(a)(1). The agency has interpreted this provision broadly. Its position is that charging a fee just to help a claimant file a claim or an appeal must be approved by the agency. As a result no one is providing these services for a fee apart from those offering contingent fee contracts for much broader representation. This leaves a large number of people to seek services that the Social Security Administration is unable to supply. Social Security should announce that that merely helping a claimant file a claim or an appeal is not the sort of representation for which fee approval is required. This would allow attorneys and H.&R. Block and whomever else to provide these services for modest fees. As an alternative, if the agency still wants to control these fees, the Social Security Act provides authority for the Commissioner to simply approve a maximum fee. ("The Commissioner of Social Security may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim ...) The Commissioner could announce that the maximum fee to help file a claim is, let's say, $250 and the maximum fee for helping to file an appeal is $100. Those providing these services would not have to submit a fee petition. I will concede that this suggestion helps those with some money more than it helps the destitute but one would hope that even the poor could come up with the modest fees I'm talking about. It would also free up agency personnel to provide more help for poor claimants. If Social Security cannot itself provide these services to all who need them, why stand in the way of others providing these services for modest fees?

Interview With Commissioner

     The AARP has published an interview it conducted with Social Security Commissioner Martin O'Malley. As you would expect from one with a political background,  O'Malley touts his agency's accomplishments. I would certainly agree that the changes in how Social Security deals with overpayments are an accomplishments. However, the accomplishments in providing service to claimants have not been across the board. As a few workloads gets diminished, others increase. It's all you can do when you lack adequate budget resources.

    There's one thing about the interview that I can't figure out. At one point the interviewer mentions that O'Malley is the first Social Security Commissioner who has served in elective office. O'Malley corrects him saying "Second! I’ll show you the wax figure down the hall." 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?

SSI Resource Limits Are Brutal

     From National Public Radio:

The thing that got Karen Williams into trouble was that she tried to do the responsible thing and bought a life insurance policy that would pay for her funeral. ...

Williams, who is disabled and doesn’t work, relied upon a little-known federal assistance program — Supplemental Security Income, or SSI, run by the Social Security Administration. ...

Williams, 63, thought her life insurance wouldn’t be used until after she died. She didn’t understand it had a cash value and that she could turn it in and collect $1,900. That was far less than the $10,000 in funeral expenses she bought the policy to cover when she died.

For Williams, the cash value of her policy along with the $260 she had saved in her checking account pushed her over SSI’s $2,000 limit on how much a recipient is allowed in savings and other assets. ...

That $2,000 asset limit hasn’t changed since 1989. If it had kept up over 51 years with inflation, it would be $10,000 today.

“I would have definitely went by the rules,” Williams says. “I didn’t know I was breaking them.”

The penalty was stiff: Williams was kicked off SSI, her primary source of income, and told by Social Security to pay back two years of benefits totaling $20,385. ...

“You’re telling me I owe you $20,000?” Williams remembers thinking in the Social Security office. “I can’t even pay my bills. … Where am I going to live?” ...

Ultimately, she sought out the help of Gregory Burrell, president and CEO of the Terry Funeral Home, an institution in West Philadelphia that has served Black families for generations.

Burrell let Williams turn the policy over to the funeral home.

“We see that all the time,” Burrell, a former president of the National Funeral Directors and Morticians Association, the largest group of Black funeral directors, said of the confusion that caught Williams. “Unfortunately, people don’t know any better. And they’re stressing, and these insurance policies — they’re considered assets.” ...

 

800 Number Answering Time In FY 2024

 

From Social Security

NADE Newsletter

     The National Association of Disability Examiners (NADE) has posted its Spring 2024 Newsletter. NADE's members make initial and reconsideration determinations on Social Security disability claims.

About That Footnote

     Social Security is trying to worm its way out of the federal courts applying the new rule changing past relevant work from 15 years to 5 by saying in a footnote to a Social Security ruling that it expected the courts to apply the law in effect at the time of the administrative decision. 

    I wrote earlier that I didn't think that Social Security was getting out of this problem with a simple footnote.

    Here's a quote that may be of interest:

It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional . . . I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.

    Chief Justice John Marshall wrote that in United States v. Schooner Peggy, 5 U.S. 1 (1801). You don't have to go back that far to find the same principle applied. Try Bradley v. Richmond School Board, 416 U.S. 696 (1974). Want a case where this was applied to Social Security? See Hicks v. Califano, 600 F.2d 1048 (4th Cir. 1979). That one is especially applicable because it was a case arising from the initial adoption of the grid regulations.

    There won't be that many cases where the difference between 15 years and 5 years is outcome determinative,  I don't know why Social Security wants to fight over these few cases. Get it over with and accept the voluntary remands.

    For that matter, apply this at the Appeals Council. Don't apply res judicata to cases affected and grant reopenings within the two and four time periods allowed by law when requested.