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. ...

Disability Claims Remain Down

 

From the Bulletin on Retirement and Disability

Mask Requirement Lifted?

     I haven't been there yet myself but I'm told that at least one local hearing office has dropped the mask requirement. Does this apply at all Social Security offices? The plexiglass shields are still present in the hearing rooms, however. I find those to be more of a nuisance than masks.

54% Of Adults Read Below The Sixth Grade Level

     According to a recent study 54% of Americans between the ages of 16 and 74 read below the equivalent of a sixth grade education.

    Why does this matter for Social Security? That 54% account for the vast majority of disability claims, particularly those disability claims which are most likely to generate appeals. The thing is that if you develop serious health problems, you have something to fall back on if you become disabled if you've got good mental abilities. If you're a fire fighter, for instance, and your knees give out but you're not too old, you may be able to switch to being a 911 operator, for instance, because you have a little background in the field and you probably have enough intellectual ability to learn a new job. However, if  you're a roofer, you may not be able to make the transition to being a roofing estimator, for instance, because you may not have the innate intellectual ability. (I'm sure there are plenty of smart roofers but it's hard, dangerous work with poor pay so who do you think ends up in these jobs, for the most part? Did you think people take roofing jobs simply because they like working outside?) Add in increased age, which reduces adaptability, and switching to work with fewer physical demands but requiring more intellectual ability becomes extremely difficult. Don't think that age makes a difference in adaptability? You're almost certainly young. Wait until you're older. You'll understand.

    There are those on the right who honestly believe that way too many people are approved for Social Security disability, that those people may have some health problems but that they could easily switch to less demanding jobs if it wasn't so easy to get Social Security disability benefits. Well, it's not at all easy to get Social Security disability benefits nor is it easy for most of the workforce to switch to less physically demanding jobs.

    

Biden Is No Fool

    From Fox News:

One of the leaders of a bipartisan Senate working group focused on extending Social Security accused President Biden of "not engaging" with them as they scramble for a way to keep the vital program solvent past its expected expiry in nine years.

Sens. Bill Cassidy, R-La., and Angus King, I-Maine, said this month that "conversations are ongoing" to reform the Social Security program ...

Cassidy indicated to Fox News Digital on Thursday that Biden’s apparent unwillingness to meet is what’s holding the group from publicly moving forward. ...

 "President Biden has never made himself available to hear about the Cassidy-King proposal to save Social Security from impending 24% benefit cuts," Cassidy said. "Biden calls himself a deal maker; we can’t make a deal without him. By not engaging, the president is choosing that current retirees’ Social Security benefits are cut by 24%."

 A Senate aide told Fox News Digital, "there have been multiple requests from both sides of the aisle to meet with President Biden, and those have not been met." They stressed that the group was bipartisan, and its membership is in "the double-digits." ...

    Yeah, right. The President is supposed to go out on a limb to promote a wildly unpopular plan to cut Social Security benefits and raise taxes even though it's hopeless because no Republican will vote for it anyway. This smacks of bad faith. It's just an attempt by Republicans to immunize themselves from the entirely accurate accusation that they want to cut Social Security benefits.

This Is Ridiculous

    Social Security's continued use of wildly outdated vocational information in determining disability continues to draw media attention. How much longer will the agency go on with the pretense that it's trying to develop a new source of vocational information? What's it been now, 12 years or more, that they've been working on this and they still can't get the answers they want?

New Headcount Numbers

    The Office of Personnel Management (OPM) has posted updated numbers showing the headcount of employees at each agency. Note that these numbers do not tell the whole story. They don't account for part time employees nor for overtime. Overtime is a huge part of the story at Social Security. A Full Time Equivalent (FTE) report would cover that but we seldom see FTE reports.  Here are Social Security's numbers as of December with earlier headcount numbers for comparison:

• December, 2022 58,916
  
• September, 2022 57,754
  
• June, 2022 58,332
  
• March, 2022 59,257
  
• December, 2021 60,422
  
• September, 2021 59,808
  
• June 2021 59,707
  
• March 2021 60,675
• December 2020 61,816
  
• September 2020 61,447
  
• June 2020 60,515
  
• March 2020 60,659
  
• December 2019 61,969
  
• December 2018 62,946
  
• December 2017 62,777
• December 2016 63,364
• December 2015 65,518
• December 2014 65,430
• December 2013 61,957
• December 2012 64,538
• December 2010 70,270
• December 2009 67,486
• December 2008 63,733

Continued Turmoil In France Over Plan To Increase Retirement Age

     From the New York Times:

President Emmanuel Macron vowed to stay the course on Tuesday after his government barely survived a no-confidence vote in Parliament that ensured the passage of his unpopular pension overhaul but did little to quell the swirling political uncertainty about the future of his second term. ...

Despite months of massive street protests and strikes, Mr. Macron has not said much publicly about his pension overhaul, which increases the legal retirement age to 64, from 62, and he had mostly left members of his cabinet to defend it. ...

With 278 votes in favor, the main no-confidence motion on Monday fell only nine votes short of succeeding — a much smaller margin than initially expected, and a sign that Mr. Macron’s political troubles are far from over.

Even some lawmakers within Mr. Macron’s own party, Renaissance, have expressed reservations the pension changes, and a few have gone so far as to suggest he should try to calm the country by setting aside the pension overhaul instead of forging ahead with it. ...