New Ruling Allows Use Of Vocational Information Sources Other Than DOT

     From Social Security Ruling 24-3p.; Titles II and XVI: Use of Occupational Information and Vocational Specialist and Vocational Expert Evidence in Disability Determinations and Decisions, due to appear in the Federal Register tomorrow:

... VSs [Vocational Specialists, used at DDS] and VEs [Vocational Experts, used at OHO] may provide evidence based on their professional experience and any reliable source of occupational information that is commonly used in the vocational profession and relevant under our rules. VSs and VEs are in the best position to determine the most appropriate sources of data to support the evidence they offer. We expect VSs and VEs to identify the sources of the data they use and, where applicable, to explain their general approach to estimating job numbers. If the VS or VE uses a data source that defines exertion, education, or skill levels differently than our regulations, we expect the VS or VE to explain the difference. ...

Some sources of occupational data use definitions of exertion level, skill level, and education level that align closely with our program rules. The DOT is such a source. If a VS or VE uses a source that defines exertion, skill, or education level differently than our program rules, we expect the VS or VE to acknowledge the difference and explain whether or how they have accounted for the difference. ...

    You can start to see a new occupational information system coming. They're trying to avoid the necessity of changing their regulations. Also, they want to phase it in and they want to have it both ways -- use either the old or the new to deny claims with claimants unable to demand consistency.

New Acquiescence Ruling

     Social Security has issued Acquiescence Ruling 24-1(6) on Dennard v. Secretary of Health & Human Services and Drummond v. Commissioner of Social Security, two old Sixth Circuit Court of Appeals decisions.

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.

Two Rulings On PRW

     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.

New Ruling On Duration

     The Social Security Administration has issued a new Ruling on Duration Requirements for Disability. At first glance I see little, if anything, new in this.

    One thing I really don't like about this is that it perpetuates the existing problem with situations where you need to combine two impairments to make up the one year duration requirement. As an example, a claimant is in chemotherapy for lung cancer and having a hard time of it for eight months. Before the chemo ends, the claimant is in an automobile accident and suffers a bad femur fracture that takes six months to heal. The claimant is out of work for more than a year due to the health problems but Social Security has examined the definition of disability with a microscope to find some tortured argument for denying such claims. Each disability must itself last at least a year. This only comes up rarely and usually when it does the decision makers involved are unaware of agency policy. Still, it's unnecessary and cruel.

Overruling A Court With The Stroke Of A Pen

      From a notice of rescission of acquiescence published in the Federal Register today:

... On September 23, 2015, we published AR [Acquiescence Ruling] 15-1(4) (80 FR 57418) to reflect the holding in Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). In Radford, the United States Court of Appeals for the Fourth Circuit held that listing 1.04A required a claimant to show only “that each of the symptoms are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months,” 734 F.3d at 294. Contrary to our policy that the requisite level of severity requires the simultaneous presence of all the medical criteria in paragraph A, the Court of Appeals held that a claimant need not show that each criterion was present simultaneously or in particularly close proximity. 

This rescission notice is the result of publication of the final rule, “Revised Medical Criteria for Evaluating Musculoskeletal Disorders,” published on December 3, 2020 at 85 FR 78164.

New SSR On Education

     Social Security Ruling 20-01p will appear in the Federal Register on Monday. You can read it today. The obvious intent of the. Ruling is to make it really clear that Social Security won't consider inability to speak or read English in determining disability.

New Ruling On Headaches

     Social Security Ruling 19-4p on the evaluation of headaches in determining disability will appear in the Federal Register on Monday. You can read it today. Here is what appears to me to be the key language from the Ruling:

Primary headache disorder is not a listed impairment in the Listing of Impairments (listings); however, we may find that a primary headache disorder, alone or in combination with another impairment(s), medically equals a listing. Epilepsy (listing 11.02) is the most closely analogous listed impairment for an MDI [Medically Determinable Impairment] of a primary headache disorder. While uncommon, a person with a primary headache disorder may exhibit equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures), and we may find that his or her MDI(s) medically equals the listing or in combination with another impairment(s), medically equals a listing.

Epilepsy (listing 11.02) is the most closely analogous listed impairment for an MDI of a primary headache disorder. While uncommon, a person with a primary headache disorder may exhibit equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures), and we may find that his or her MDI(s) medically equals the listing. 

Paragraph B of listing 11.02 requires dyscognitive seizures occurring at least once a week for at least 3 consecutive months despite adherence to prescribed treatment. To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in 11.02B, we consider: a detailed description from an AMS [Acceptable Medical Source] of a typical headache event, including all associated phenomena (for example, premonitory symptoms, aura, duration, intensity, and accompanying symptoms); the frequency of headache events; adherence to prescribed treatment; side effects of treatment (for example, many medications used for treating a primary headache disorder can produce drowsiness, confusion, or inattention); and limitations in functioning that may be associated with the primary headache disorder or effects of its treatment, such as interference with activity during the day (for example, the need for a darkened and quiet room, having to lie down without moving, a sleep disturbance that affects daytime activities, or other related needs and limitations). 

 Paragraph D of listing 11.02 requires dyscognitive seizures occurring at least once every 2 weeks for at least 3 consecutive months despite adherence to prescribed treatment, and marked limitation in one area of functioning. To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in 11.02D, we consider the same factors we consider for 11.02B and we also consider whether the overall effects of the primary headache disorder on functioning results in marked limitation in: physical functioning; understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself.

Social Security Ruling 19-3p

     Social Security Ruling 19-3p will be in the Federal Register tomorrow. It's on requesting reconsideration or a hearing. The regulations require that these appeals be in writing. The Ruling, as best I can tell on a first reading, is designed to make it clear that the agency considers an appeal filed through its online systems to be in "writing."

That New Obesity Ruling

     It's hard to evaluate the new Social Security Ruling on the evaluation of obesity on its face. It's only precise when it sets forth what Social Security won't do -- find any particular level of obesity to even be a severe impairment much less an impairment that significantly affects function or exacerbates the effects of other impairments such as osteoarthritis. This is the sort of thing that's standard in these Rulings. The agency wants to say something on a subject but also wants to be very sure that no one can say that the agency has established a standard that it can be accused of not having followed.

     To find the real intent of this Ruling, you have to contrast it to its predecessor, Social Security Ruling 02-01p. When you do, you notice a couple of things that were in 02-01p that didn't make it into 19-2p. The old Ruling specifically said that failure to follow prescribed treatment would rarely, if ever, be grounds for denying a claim based upon disability. That language didn't make it into the new Ruling. Also, the old Ruling said that "... if the obesity is of such a level that it results in an inability to ambulate effectively, as defined in sections 1.00B2b or 101.00B2b of the Listings, it may substitute for the major dysfunction of a joint(s) ... and we will then make a finding of medical equivalence." Again, that language didn't make it into the new Ruling. 
     The problem with the old Ruling is that it established standards that the agency could be accused of not having followed. They couldn't have that so the Ruling was changed.

New Ruling On Obesity

     A new Social Security Ruling, SSR 19-2p, is out on "Evaluating Cases Involving Obesity." My initial reading is that the Ruling will have limited practical effect. What do you think?

Three New Rulings

     The Social Security Administration will publish in the Federal Register tomorrow three new Social Security Rulings. On cursory examination, Social Security Rulings 18-01p Determining the Established Onset Date (EOD) in Disability Claims and 18-02p Determining the Established Onset Date (EOD) in Blindness Claims are of little consequence. 

     The third may matter a little although it is an issue that rarely arises. From Social Security Ruling 18-3p, Failure to Follow Prescribed Treatment:

... We will not determine whether the individual failed to follow prescribed treatment if the treatment was prescribed only by a consultative examiner (CE), medical consultant (MC), psychological consultant (PC), medical expert (ME), or by a medical source during an evaluation conducted solely to determine eligibility to any State or Federal benefit. ...

Prescribed treatment does not include lifestyle modifications, such as dieting, exercise, or smoking cessation. ...

The following are examples of acceptable good cause reasons for not following prescribed treatment: ...

The individual’s fear of surgery is so intense that it is a contraindication to having the surgery. We require a written statement from an individual’s own medical source affirming that the individual’s intense fear of surgery is in fact a contraindication to having the surgery. We will not consider an individual’s refusal of surgery as good cause for failing to follow prescribed treatment if it is based on the individual’s assertion that success is not guaranteed or that the individual knows of someone else for whom the treatment was not successful. ...

     I don't see the point of asking  a medical source to give information about their patient's fear about having surgery. Wouldn't it make more sense to rely directly upon the patient's own testimony about those fears? Isn't this an inherently subjective matter? Why rely upon statements from a physician who regards their patient's objections as ridiculous? This seems like it's searching for a way to hurt fearful people.

Ten Rulings Rescinded

     The Social Security Administration has announced that it is rescinding the following Social Security Rulings:

• 62–47
• 65–33c
• 66– 19c
• 67–54c
• 68–47c
• 71– 23c
• 72–14c
• 72–31c
• 82– 19c
• 86–10c

     This appears to be nothing more than ordinary housekeeping.

SSR 82-53 Rescinded

     The Social Security Administration has announced that it is rescinding Social Security Ruling 82-53.

Two Social Security Rulings Rescinded

     From a notice published by Social Security in the Federal Register (footnote omitted):

   ... In accordance with 20 CFR 402.35(b)(1), we give notice that we are rescinding the following SSRs [Social Security Rulings]: 

• SSR 96-3p: Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment is Severe.
• SSR 96-4p: Titles II and XVI: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations.

These SSRs are unnecessarily duplicative of SSR 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims, which was applicable on March 28, 2016 , published in the Federal Register on March 16, 2016, 81 FR 14166. SSR 16-3p, a more comprehensive statement of our policy on symptoms, explains how we evaluate the extent to which alleged symptoms limit an adult’s ability to perform work-related activities and a child’s ability to function effectively in an age-appropriate manner. ...

Useful Compendium

     A recent addition to Social Security's Program Operations Manual Series (POMS) contains this useful summary of citations from the agency's Social Security Rulings (SSRs) on the effects of various sorts of limitations upon the ability to perform ranges of work.

1. Standing/Walking

SSR	Issue	Statement from SSR
83-10	Lifting and carrying—light work Standing/walking—sedentary and light work	“Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing—the primary difference between sedentary and most light jobs.”
83-10	Standing/walking—light work	“Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk.”
96-9p	Standing/walking—sedentary work	“If an individual can stand and walk for a total of slightly less than 2 hours per 8-hour workday, this, by itself, would not cause the occupational base to be significantly eroded.”
96-9p	Alternate sitting and standing	“An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded.” (This suggests that if scheduled breaks and a lunch can accommodate the need to alternate positions, the full range of unskilled sedentary work is intact.)
96-9p	Medically required hand-held assistive device—sedentary work	“For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.” “Since most unskilled sedentary work requires only occasional lifting and carrying of light objects such as ledgers and files and a maximum lifting capacity for only 10 pounds, an individual who uses a medically required hand-held assistive device in one hand may still have the ability to perform the minimal lifting and carrying requirements of many sedentary unskilled occupations with the other hand.”

2. Lifting/carrying/pushing/pulling

SSR	Issue	Statement from SSR
83-10	Lifting/carrying—medium work	“Being able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.”
96-9p	Lifting/carrying—sedentary work	“For example, if it can be determined that the individual has an ability to lift or carry slightly less than 10 pounds, with no other limitations or restrictions in the ability to perform the requirements of sedentary work, the unskilled sedentary occupational base would not be significantly eroded.”
96-9p	Pushing/pulling—sedentary work	“Limitations or restrictions on the ability to push or pull will generally have little effect on the unskilled sedentary occupational base.”

3. Postural limitations

SSR	Issue	Statement from SSR
83-10	Stooping—sedentary work	“By its very nature, work performed primarily in a seated position entails no significant stooping.”
83-10	Stooping—light work	“The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping.”
83-14	Stooping and crouching—light and sedentary work	“However, to perform substantially all of the exertional requirements of most sedentary and light jobs, a person would not need to crouch and would need to stoop only occasionally.”
83-14	Climbing, kneeling and crawling—medium work	“In jobs at the medium level of exertion, there is more likelihood than in light work that such factors as the ability to ascend or descend ladders and scaffolding, kneel, and crawl will be a part of the work requirement. However, limitations of these activities would not significantly affect the medium occupational base.”
83-14	Climbing, kneeling, and crawling—light work	“On the other hand, there are nonexertional limitations or restrictions which have very little or no effect on the unskilled light occupational base. Examples are inability to ascend or descend scaffolding, poles, and ropes, inability to crawl on hands and knees; and inability to use the fingertips to sense the temperature or texture of an object.”
85-15	Climbing and balancing	“Where a person has some limitation in climbing and balancing and it is the only limitation, it would not ordinarily have a significant impact on the broad world of work.”
85-15	Stooping and crouching— sedentary and light work	“If a person can stoop occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually intact.” “This is also true for crouching.”
85-15	Crawling and kneeling	“However, crawling on hands and knees and feet is a relatively rare activity even in arduous work, and limitations on the ability to crawl would be of little significance in the broad world of work.” “This is also true of kneeling.”
96-9p	Postural limitations—sedentary work	“Postural limitations or restrictions related to such activities as climbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling would not usually erode the occupational base for a full range of unskilled sedentary work significantly because those activities are not usually required in sedentary work.”
96-9p	Stooping—sedentary work	“A complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply, but restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work.”

4. Manipulative limitations

SSR	Issue	Statement from SSR
83-10	Reaching, Handling, Fingering—light work	“They require use of arms and hands to grasp and to hold and to turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.” (“They” refers to many unskilled light jobs.)
83-10	Reaching, Handling, Fingering—medium and sedentary work	(The quote refers to manipulative activities common in medium work as opposed to sedentary.) “Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.”
85-15	Fingering	“As a general rule, limitations of fine manual dexterity have greater adjudicative significance—in terms of relative number of jobs in which the function is required—as the person’s exertional RFC decreases.”
85-15	Feeling	“However, a VS would not ordinarily be required where a person has a loss of ability to feel the size, shape temperature, or texture of an object by the fingertips, since this is a function required in very few jobs.”
96-9p	Feeling—sedentary work	“The ability to feel the size, shape, temperature, or texture of an object by the fingertips is a function required in very few jobs and impairment of this ability would not, by itself, significantly erode the unskilled sedentary occupational base.”

5. Special senses limitations

SSR	Issue	Statement from SSR
85-15	Vision	“As a general rule, even if a person’s visual impairment(s) were to eliminate all jobs that involve very good vision (such as working with small objects or reading small print), as long as he or she retains sufficient visual acuity to be able to handle and work with rather large objects (and has the visual fields to avoid ordinary hazards in the workplace), there would be a substantial number of jobs remaining across all exertional levels.”
96-9p	Hearing and speaking	“Basic communication is all that is needed to do unskilled work. The ability to hear and understand simple oral instructions or to communicate simple information is sufficient. If the individual retains these basic communication abilities, the unskilled sedentary occupational base would not be significantly eroded in these areas.”

6. Environmental limitations

85-15	Hazards	“A person with a seizure disorder who is restricted only from being on unprotected elevations and near dangerous moving machinery is an example of someone whose environmental restriction does not have a significant effect on work that exists at all exertional levels.”
96-9p	Cold, heat, wetness, humidity, vibration, unusual hazards—sedentary work	“In general, few occupations in the unskilled sedentary occupational base require work in environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards…. Even a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base.”

7. Mental limitations

SSR	Issue	Statement from SSR
85-15	Mental	“Where there is no exertional impairment, unskilled jobs at all levels of exertion constitute the potential occupational base for persons who can meet the mental demands of unskilled work. These jobs ordinarily involve dealing primarily with objects, rather than with data or people, and they generally provide substantial vocational opportunity for persons with solely mental impairments who retain the capacity to meet the intellectual and emotional demand of such jobs on a sustained basis.”1

Can Someone Explain This One To Me?

     From an item that the Social Security Administration published in the Federal Register today:

We are republishing SSR [Social Security Ruling] 16–3p, a ruling that rescinded and superseded SSR 96–7p, with a revision detailing how we apply the SSR as it relates to the applicable date. We changed our terminology from ‘‘effective date’’ to ‘‘applicable date’’ based on guidance from the Office of the Federal Register. ...

This SSR, republished in its entirety, includes a revision to clarify that our adjudicators will apply SSR 16–3p when we make determinations and decisions on or after March 28, 2016. When a Federal court reviews our final decision in a claim, we also explain that we expect the court to review the decision using the rules that were in effect at the time we issued the decision under review. If a court remands a claim for further proceedings after the applicable date of the ruling (March 28, 2016), we will apply SSR 16–3p to the entire period in the decision we make after the court’s remand. ...

     Update: When I posted this, I expected that someone would quickly step up to explain the reason this has been published. I figured there had to be some important point that Social Security wanted to make that was just eluding me. So far, no one has stepped up to explain this. Maybe a lot of other people are mystified by this. I think it mostly has to do with federal court but I don't see how it's going to help the agency.

Be Careful What You Ask For

     I just uploaded a 500+ page medical report on one of my clients. This isn't unusual these days. Electronic medical records have led to explosive growth in the quantity of medical records. The hearing offices are drowning in medical records. Why do I have a feeling that Social Security's next Ruling will urgently demand that I not submit lengthy medical reports, that I somehow cull out what's not really important?

NOSSCR Response To SSR 17-4p

     The National Organization of Social Security Claimants Representatives (NOSSCR) has responded to Social Security Ruling 17-4p.

Can They Do This?

     Here's something from the preamble to Social Security Ruling (SSR) 17-4p:

Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans’ benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations. 

Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).

     The SSR specifically says that it does not have the same force or effect as a statute or regulation. It only talks about it being binding upon the Social Security Administration itself. Doesn't this say on its face that it doesn't bind members of the public?
     The Administrative Procedure Act (APA) says that regulations, which have the force and effect of law, can only be adopted after a cumbersome process which requires publication of the proposed regulation in the Federal Register, allowing the public to comment on the proposed regulation and considering those comments before final adoption. Presidential orders also require that proposed and final regulations be submitted to the Office of Management and Budget, which is part of the White House, for approval before publication in the Federal Register. The APA provides that the notice and comment procedure applies to all rules other than "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." That's why the preamble quoted above is attached to all SSRs. Isn't the fact that regulations can bind the public the reason why the APA requires notice and comment? Binding the public is the role of statutes and regulations, not SSRs.
    I don't think this SSR passes muster under the APA. I know the agency is trying to address conduct it has good reason to consider obnoxious but there are limits. Would Social Security really try to discipline someone based upon the contents of a mere ruling?