Social Security will publish two Rulings in the Federal Register tomorrow on How We Apply Medical-Vocational Profiles and How We Evaluate Past Work.
Here's a footnote from the first of those Rulings:
We will use this SSR beginning on its applicable date. We will apply this SSR to new applications filed on or after the applicable date of the SSR and to claims that are pending on and after the applicable date. This means that we will use this SSR on and after its applicable date in any case in which we make a determination or decision. We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the applicable date of this SSR, we will apply this SSR to the entire period at issue in the decision we make after the court’s remand.We'll see how this plays out but I doubt they're getting out of this problem with a footnote.
Charles, please enlighten us as to the problem you are referring to.
ReplyDelete@2:15
ReplyDelete"Pending" is vague, and arguably applicable to cases at the AC given the ALJ's decision is not statutorily final until the AC declines to review or affirms.
It's also a pretty weak argument that it's entirely reasonable to find 15 years is appropriate as to past relevant work, but 5 years is necessary the next day. And if it was, then why are future cases following a court remand in the future using the 5 year rule as stated in the footnote?
Pending is not vague. It’s pending adjudication and not “closed.” Case aren’t pending adjudication at the AC. Certainly that won’t stop the courts from creating some interpretation inconsistent with policy, but there isn’t any ambiguity there.
DeleteHow many cases were kicked back due to changes in policy in the past due to changes in law for pending cases? Were there a ton of cases sent back for failure to consider impairments under new listings for the musculoskeletal, respiratory, neurological, or mental listings when they were changed for pending cases? I never saw any, but that doesn’t mean there weren’t.
I agree that the date is arbitrary, but any effective date for a policy change will be arbitrary. It’s not a weak argument to say the law was X on this date before it changed to Y on this date. It’s not an uncommon practice in law.
The reason remanded cases will be considered under the new law is that their adjudication date will necessarily be after 6/22/24 on remand (absent a remote DLI that precedes that date). It will go back to pending again once it’s sent back from the AC or courts.
The "problem" is basically what level of decision/determination is covered by the change. I think it's pretty clear that if SSA issues a decision or determination after 6/22, the new rules apply. So, if an ALJ issues a decision or the Appeal Council grants or denies review after that date, the Appeals Council use 5 years, not 15 years. And, no, it does not look like it applies to cases filed in USDC where the Appeals Council denied review prior to 6/22.
ReplyDeleteThe AC did remand CDR claims after, in August, 2021, the rules were changed as to whether to apply the current or prior rules. Several ALJs got remands even though they applied the correct rules in effect at the time of adjudication. This is why several ALJS think the AC will also remand these cases even though the correct policy was applied at the time of adjudication.
ReplyDeleteI may be misremembering this, but wasn't the change in the CDR opinion eval rules explicitly retroactive? I've never seen such an onslaught of rule change-related remands as I have from that.
Delete@7:05
ReplyDelete1. Ok if cases are closed at the time of the ALJ's decision, then we can skip the AC, and actually have to, because the statute requires civil actions be filed no later than 60 days after SSA's final decision.
2. Lots of cases are kicked back due to changes in policy. We saw a TON of stipulated remands based on SSR 16-3p, for example. The acknowledgment of NPs also lead to a few stipulated remands in our cases. Not as to listing changes because SSA's listing changes pretty much butchered any chance of an actual award at step 3. They are now impossible to meet, so there's not really an argument at Court that the new listings would direct an award.
3. It's a weak argument because the rule change is to be applied on remand cases. If, for example, SSA structured it like the treating physician rule change (i.e. for claims filed on or after _____ date), then that's an entirely different matter. That would be setting a solid date based on whatever data they have showing skill retention/past relevant work has changed. Here, SSA is saying "15 years is reasonable, except if a court finds some other reason to remand the case, then 5 years is reasonable, but only after the Court remands it to us, not before." So, the rule change is being tied to 2 moving targets, that being the ALJ's decision date, and the Court's remand date. That's not how reality works.
4. I'll read the rulings when they are published, but I would be surprised if "pending" is even suggested to be in regard to the claim status. Regardless, a claim is not final (under the regulations) until AC declines to review or affirms. Until that, it is pending before the Social Security Administration.
9:25:
ReplyDeleteThe CDR rules were not retroactive; the Agency just up and amended HALLEX and POMs one day--August 25, 2021 to be exact. See CJB 22-01