Social Security Beginning To Text With Claimants

     From Emergency Message EM-25051:

... Prior to September 28, 2024, technicians used email as the sole means to communicate with customers to initiate an Upload Documents request. eSignature/Upload Documents had required technicians to obtain customer consent prior to sending emails requesting document submissions.

Effective with the release on September 28, 2024, eSignature/Upload Documents will no longer require the collection of customer consent in TED for email messaging.

Additionally, text messaging will be added as a communication option in TED. Technicians must collect customer consent before sending text messages. ...

CDRs To Resume

     Social Security is resuming Continuing Disability Reviews (CDRs) in October for the new federal fiscal year. The CDRs had been suspended due to the huge backlog of cases awaiting a decision on initial claims. Resuming CDRs is likely to slow down Disability Determination Services (DDS) work on initial claims.

New Emergency Message On Collateral Estoppel

     From Emergency Message EM-24033 Disability Collateral Estoppel Policy – Change of Position

This emergency message (EM) announces the agency’s change of position (CoP) on the use of collateral estoppel to adopt prior disability determinations and decisions. ...

Beginning 7/13/2024, we will adopt our prior favorable finding of disability in a subsequent claim by the same individual for a different disability benefit or SSI payments if, in our prior final determination or decision, we have already decided that the individual is disabled for the period in question and all of the following criteria are met:

1. Both the prior determination or decision and new claim require application of the same statutory definition of disability.

2. We have not made an intervening medical determination or decision finding that the individual’s disability ceased.

3. The individual has not engaged in substantial gainful activity since the prior established onset date (EOD).

4. The EOD in the prior claim is on or before the date when the nonmedical requirements for entitlement are last met in the new claim.

5. The record with the prior favorable disability determination or decision is not in terminated status.

6. We do not have reason to believe that the prior disability determination or decision was wrong. ...

     I don't have the energy today to try to explain the concept of collateral estoppel in the Social Security world. If you don't already know you probably aren't interested in this change anyway. I'll just say that this is a modest change that helps a few claimants and which saves some work at Social Security. I never knew any reason why the policy was changed before other than generalized hostility to Social Security disability claimants.

New Policy For Reopening Due To New Five Year Past Relevant Work Standard

     From Emergency Message EM-24023: 

Beginning June 22, 2024, adjudicators will reopen a prior final agency determination or decision based on the PRW CoP [Past Relevant Work Change Of Policy] if the application of the PRW rule at the time of the prior determination or decision would have resulted in a more favorable determination or decision. 

All of the following conditions must be met to reopen based on the PRW CoP: 

• The claimant or SSA/Disability Determination Services (DDS) (or both) questioned the determination or decision in writing within one year of the date of the notice of the initial level determination on the prior claim. 
• The questioning occurred after, or was pending as of, June 22, 2024. 
• The prior claim was denied at step four or five. 
• The denial depended on a finding that the person had PRW that was last done more than 5 years earlier, transferrable skills from PRW that was last done more than 5 years earlier (without continuity of skills to PRW within 5 years of the prior determination, see DI 25005.015C), or PRW that started and stopped in fewer than 30 calendar days. 
• A revised determination or decision applying the current rules (PRW rule) would be more favorable to the claimant than the prior final determination or decision that would be reopened. ... 

What do we mean by questioning the prior final agency determination or decision in writing?

We consider the claimant or SSA/DDS to have questioned the prior final determination or decision in writing if one or more of the following conditions exist: 

•  The claimant files a written request to reopen the prior final determination or decision. 
• The claimant files a new claim alleging disability began in the period adjudicated in the prior final determination or decision (implied request for reopening). 
• The claimant files a new claim and the adjudicator, on the adjudicator’s own initiative, finds the reopening conditions above are met.
• SSA or the DDS questions the prior final determination or decision meeting the reopening conditions above. ...

    I don't see anything in Social Security's statutes or regulations requiring that reopening must be requested within one year of a prior determination. The standard is four years for Title II and two years for SSI. This dramatically limits the effect.

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 cases pending at the Appeals Council or federal court where there were denials based upon ability to perform other "jobs" that are now considered off limits because they don't really exist any more?

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.

SSA Stops CDRs For The Remainder Of The Fiscal Year

     From Emergency Message EM-24021:

With the enactment of our full-year appropriation for this fiscal year, we are lowering our Full Medical CDR t[Continuing Disability Review] arget from 575,000 to 375,000.

This reduction will allow DDSs [Disability Determination Services] to focus on processing Initial Disability Claims and Reconsideration cases. The field offices will not send additional Full Medical CDRs to the DDS for the remainder of FY 2024. ...

Do not assign unassigned CDRs pending in your receipt or staging queue. DDS should take no action on the unassigned Full Medical CDRs. ...

Age 18 Redeterminations:

If you have sufficient evidence in file at the publication date of this emergency message, make the Age 18 Redetermination.
If the evidence in file at the publication date of this emergency message is insufficient to make the Age 18 Redetermination:
a. Do not initiate additional development, such as requesting medical evidence of record (MER) or school records;
b. Do not schedule for consultative examinations (CE); and,
c. Do not assign to medical or psychological consultant(s) for review. ...

Overpayment Administrative Tolerance Changing From $1,000 To $2,000 Today

     From Emergency Message EM-24019:

... Effective May 13, 2024, we are updating the administrative waiver tolerance policy to improve customer service, reduce the burden to overpaid individuals, and increase front-line staff efficiency. We are implementing the following changes: ...

· Increased the administrative waiver tolerance amount from $1,000 to $2,000 for Title II and Title XVI. ...

    What does this mean? It means that if you have an overpayment below $2,000 it will now be waived pretty much automatically -- as long as you ask for waiver.

A New EM On Covid

     The Social Security Administration has posted Emergency Message EM-21032 REV 2 on Evaluating Cases with Coronavirus Disease 2019 (COVID-19). It's a classic Social Security directive to staff that means absolutely nothing. They want to tell you that, yes, they're considering long Covid but there are zero details on what that means in practice and certainly nothing that could be interpreted as a standard that the agency must meet. The first priority is to make sure that no one at Social Security could be said to have failed to abide by the Emergency Message. It's impossible to fail to meet the standard since there is no standard. Is there one person at Social Security whose job it is to draft this sort of pabulum? 

    In the real world everyone with long Covid will be denied at initial and recon and some will be approved at the hearing level.

    I'm still not seeing clients complaining of long Covid. I'm beginning to think that long Covid is definitely a thing but it's mostly a thing for those who are too old to be applying for Social Security disability benefits.

Emergency Message On Change In Default Rate For Collecting Overpayments

     The Social Security Administration has issued Emergency Message EM-24011 SEN on the recent decision by the Commissioner to change the default rate of benefit withholding where there's been an alleged overpayment. It's labeled as "SEN" because they consider it sensitive. It's labeled at the top as "NOT TO BE SHARED WITH THE PUBLIC" but they are sharing it after redacting significant portions of the message. I don't get a feel for what's in the redacted part.

Some Help On SSI Payment Backlogs

    From Emergency Message EM-24009:

... Since May of 1992, a prepayment review is required for any SSI case (initial or post eligibility), if an underpayment (UP) of $5,000 or more is due through the month prior to the current computation month (CCM) as per SI 02101.025 - Basic Requirements of Supplemental Security Income (SSI) Underpayment (UP) Review (ssa.gov). Effective 03/16/2024, the amount of an SSI underpayment that requires a prepayment review will increase from $5,000 to $15,000. ...

    This should help reduce the SSI workloads a bit. The SSI effectuation backlogs are a major problem.

    I wonder whether something like this is planned for the Title II payment centers. Certainly the larger payments are a source of major delay. If you've been a high wage earner you could be looking at many months of delay before you're paid your back benefits. Would they announce that sort of change? Emergency messages generally don't concern truly emergent matters. They concern matters the agency believes are important -- that they want the public to be aware of. The agency isn't all that consistent in what it announces via EMs.

EM On Overpayments During Covid

     From Emergency Message EM-24005:

... On January 20, 2024, the United States District Court for the Eastern District of New York approved a settlement agreement in Campos v. Kijakazi, No. 21-cv-05143. The case involved Title XVI overpayments incurred during the COVID-19 pandemic from March 2020 through April 2023.

C. FO [Field Office] instructions

Effective immediately, when making a fault determination on a waiver request for an overpayment incurred in any month since March 2020, technicians must consider any circumstances related to the COVID-19 pandemic that an overpaid individual alleges prevented the individual from reporting changes. When COVID-19 circumstances are alleged, technicians must also document the individual’s allegations of COVID-19 circumstances that prevented the individual from reporting changes in the file. ...

Examples of circumstances related to the COVID-19 pandemic that may have prevented an individual from complying with Title II or Title XVI reporting requirements include, but are not limited to, the following scenarios:

The overpaid individual:

• attempted to contact us but was unable to visit a FO, mail us information, reach us by phone, or get transportation because of the COVID-19 pandemic;
• was unable to contact us because of government-imposed COVID-19 travel restrictions;
• was unable to contact us because of child-care or family-care changes due to COVID-19 stay-at-home orders or school-at-home requirements;
•  was unable to contact us because of the overpaid individual’s COVID-19 illness or related serious illness; 
•  was unable to contact us because the overpaid individual’s representative payee died or became seriously ill due to COVID-19 or serious illness related to COVID-19; or
•  was unable to contact us because the overpaid individual’s immediate family member died or became seriously ill due to COVID-19 or related serious illness.

NOTE: This list is not exhaustive. ...

Social Security Says Don't Rely On SkillTRAN For Numbers Of Jobs

     From Emergency Message EM-21065 REV, Guidelines for Using Occupational Information in Electronic Tools issued yesterday (emphasis added):

In making disability determinations, SSA relies primarily on the Dictionary of Occupational Titles (DOT) (including its companion publication, the Selected Characteristics of Occupations (SCO)) for information about the requirements of work in the national economy. The SSA Digital Library hosts three searchable databases developed by SkillTRAN for the DOT. Adjudicators may use these tools to help make an assessment at step four (see 20 CFR 404.1560(b)(2) and 416.960(b)(2)) or step five (see 20 CFR 404.1566(d), 404.1568(d)(2), 416.966(d), and 416.968(d)(2)) of the sequential evaluation process. ...

 [The three searchable databases] contain DOT and SCO occupational information developed by the United States Department of Labor (DOL). This information is useful, but it does not replace SSA policy or adjudicative judgment and decision-making. While the DOT and SCO are acceptable sources of occupational information for adjudicating disability claims, they also contain (1) information that must not be used in disability adjudication because our rules and subregulatory guidance do not permit it and (2) information of which we do not take administrative notice. ...

Federal agencies now publish labor market information by the Standard Occupational Classification (SOC) code. Those with vocational expertise use various approaches to arrive at informed estimates of numbers of jobs that exist within a DOT occupation. Results may differ given the method used for the estimate. We have not reviewed and do not specifically endorse the SkillTRAN proprietary algorithm. ...

    To explain, in responding to hypothetical questions, vocational experts testifying at hearings on Social Security disability claims give lists of jobs that a hypothetical claimant could perform. They also testify to the numbers of such jobs in the economy. The numbers of jobs figures come from a propriety program, SkillTRAN. I think that everyone who has looked at this issue, including Administrative Law Judges, knows that those SkillTRAN numbers are bull. Social Security is finally acknowledging this. 

    Will this affect cases where these numbers have already been cited in decisions? We'll see.                                                                            

EM On Musculoskeletal Disorders

     The Social Security Administration has issued an Emergency Message titled Additional Guidance for Evaluating Evidence in Cases Involving the Musculoskeletal Disorders Listings. It's designed to convey the news of the Temporary Final Rule on "close proximity of time" published recently in the Federal Register but it also addresses the need for assistive devices, such as a cane or walker or motorized wheelchair.

Get Your Act Together

     Just yesterday I wrote about Social Security's noncompliance with the CARES Act, which requires the agency to accept electronic consents from digitally identity proofed and authenticated record holders to disclose Privacy Act protected records to third parties. The same day Social Security released a new Emergency Message saying that it now has a fully electronic means to give consent for release of records. The problem is that the link in the EM takes one to a webpage saying the agency is committed to protecting privacy and little else. There's supposed to be a tab for "Electronic Request for Consent to Disclose" but there's no such tab. The closest thing is a tab for "Submit A Privacy Act" request but that takes you only to a webpage giving links to the agency's privacy regulations.

    Shouldn't someone have checked to make sure the electronic request form was actually available online before posting the EM?

Video CEs To Continue On Limited Basis

     Prior to the Covid pandemic, the Social Security Administration used video technology to perform consultative medical examinations (CEs) -- to help evaluate disability claims -- on a very limited basis. For understandable reasons, the agency has made much more extensive use of video technology for CEs during the pandemic but the pandemic is waning. The President has declared that the Public Health Emergency will end on May 11, 2023. Social Security has just issued an Emergency Message detailing how it will use video technology for CEs after May 11. They will use video technology only for psychiatric CEs, psychological CEs without standardized testing and speech and language CEs. The claimant must agree to the video CE.

Should Probationary Periods Be A Factor In Disability Determination?

     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. ...