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There is an interesting wrinkle on the issue of missed days at work in the Second Circuit case of Sczepanski v. Saul, 946 F. 3d 152 (2nd Cir. 2020). That case probably merits wider attention.

During the ALJ hearing in that case, the vocational witness was asked about tolerated levels of missed days, specifically during the probationary period of a new job. The vocational witness testified that missing just one day per month would not be tolerated during the probationary/training period. The ALJ, however, declined to specifically consider limitations in the probationary period. The Second Circuit remanded the case, finding that the claimant’s inability to complete a probationary period of a new job was relevant to the Step 5 evaluation of whether the claimant could perform work in the national economy.

Last Spring, three years after the Second Circuit decision, Social Security issued an Emergency Message (EM-23021) for pending disability cases that may be affected by the decision. There is an excellent post by the Empire Justice Center on the topic.

Often at a Social Security disability hearing, there is testimony from the claimant and the vocational witness about missed days at work.

Many disability claims at the hearing level are decided on the basis of missed work days. This is because a claimant’s symptoms and limitations often do not fit neatly into Social Security’s physical RFC categories. And for mental impairments with symptoms that are not at listing-level severity, the issue of missed days is sometimes the most practical basis for an award of benefits.

Claimants frequenty have “bad days,” when their symptoms flare. For some it is more often than not, but for others it might be a bad day every week or two. Quantifying these bad days, and preparing the client to testify about this issue, is an important part of the preparation for hearing. Any supporting evidence of bad days, beyond the claimant’s testimony is highly relevant, and can help to persuade the judge on this issue. That is why I ask some of my clients to keep a journal.

Typically, a vocational witness will testify that 1 absence from work a month would be tolerated by employers, but that two or more absences would not be.

Social Security relies primarily on medical evidence to evaluate disability claims. However, they also look at nonmedical evidence, including the forms that claimants complete during the disability evaluation process. See 20 CFR 404.1513(a)(4).

Nonmedical evidence can also include a statement from parent, spouse, other family member, or a friend. That statement is typically 1 or 2 typed pages. It should be typed; don’t make the judge read your handwriting! It often tells the story of how the claimant used to be, what changed medically, and what life is like now.  There is a genuineness to these statements, and they are often very moving. When you have the right person with the right story to tell, it can be powerful evidence.

For example, I have a case where my client simply is unable to perform their daily activities. Their mother comes to the home several times a week to clean, prepare meals, and do whatever needs to be done, because the client simply cannot do it. The typed statement from the mother is strong evidence regarding the claimant’s daily activities, which address the severity of their functional limitations. Presenting that evidence as a narrative, in the mother’s own words, is much more powerful than providing the same information on one of Social Security’s forms.

The statement should be in the record well ahead of the hearing, so it is there when the judge reviews the claim prior to the hearing. 

Social Security now provides a check sheet, in the form of an online fillable PDF, for on the records requests.

An “on the record” (OTR) request asks Social Security to grant your case on the record without a hearing. This request is for claims awaiting a hearing at the Office of Hearings Operations (OHO). On the record decisions can only be fully favorable. You cannot lose your case on the record. Rather, if the OTR request is denied, your claim simply stays in line for a hearing.

OTRs are favored by Social Security, when appropriate. Why go though the hearing process, and all the work to prepare a claim for hearing, if the claim is definitely going to be granted? Cases granted on the record free up resources for other claims.

In my view, OTR requests should only be filed in a minority of cases, where a favorable result is mandated by the evidence and by Social Security’s rules and regulations. The medical evidence in the record should be up to date before an on the record request is filed.

An OTR request is certainly appropriate 1) if the claimant meets a listed impairment, or 2) if PRW is clearly precluded at Step 4 and the claim would be decided favorably at step 5 by the Medical-Vocational Guidelines. Such claims are clear-cut winners. Claims that require a decision based on subjective evidence (such as the level of the claimant’s pain), or claims that would require vocational evidence, are not strong candidates for an on the record decision.

Next time you are considering an on the record request, check out the check sheet.

I first starting tracking allowance rates on this blog over 15 years ago. Back in 2008 and 2009, ALJ allowance rates were steady at 63%. From that level, there has been a significant slide in allowance rates at the ALJ level:

  • 62% in 2010
  • 58% in 2011
  • 53% in 2012
  • 48% in 2013
  • 45% in 2014
  • 45% in 2015
  • 46% in 2016
  • 47% in 2017
  • 45% in 2018
  • 45% in 2019
  • 49% in 2020
  • 51% in 2021
  • 51% in 2022
  • 45% in 2023

To be fair, allowance rates at the initial level of review have crept up from the 2010 baseline of 35% of initial claims to 38% in 2022 and 39% in 2023. Since there are many more initial claims than claims at the hearing level, it is a notable increase.

Those of us practicing Social Security disability law are well aware of the changes in allowance rates at all levels over the past 15 years. ALJ allowance rates slid downward in the years after 2010, stabilizing at around 45%. They trended up slightly during the COVID era, and are now back down to 45% again, which seems to be the new baseline.

This is not just an abstract discussion. With 200,000 to 300,000 claims at the hearing level every year, the reduction of allowance rates means tens of thousands of claimants have their disability claims denied instead of granted each year. Not every disability case is a clear winner or a clear loser. For those claims in the middle, the chances of receiving benefits at the hearing level are now significantly lower.

Each year, the Social Security Administration releases statistics about the disability and SSI programs in an easy-to-understand format, called the “waterfall” chart. The waterfall chart shows the percentage of claims approved and denied at the various levels of review.

The chart shows what claimants can expect, statistically, for their claim for Social Security disability benefits. I like this chart, and have posted an annual waterfall chart dating back several years.

For comparison, here is the waterfall chart from last year and the year before.

Last Fall the Social Security published a proposed rule change that would reduce the period of PRW from 15 years to 5 years. As I have said before, I strongly support that change, which would reduce the paperwork burden of disability claims and lead to more realistic determinations.

The Federal Register published today its semiannual Unified Agenda of Federal Regulatory and Deregulatory Actions, which describes regulatory actions across the governent. That document on page 9525 provides a timeline for final action on the SSA proposed rule, listing April 2024 for final action on the proposed rule. That timeline had not been explicitly set forth before, although the proposed rule’s discussion of its expected economic impact assumed an implementation date of May 2024.

Anyway, now we know. Look for final action on the proposed rule in April.

3/14/2024 Update: The proposed rule has been submitted to OMB for approval.

There is a good article in the January 2024 issue of The Forum (NOSSCR’s monthly newsletter to its members) by North Carolina disability lawyer George Piemonte regarding cross-examination of the vocational expert at hearing regarding obselete jobs listed in the Dictionary of Occupational Titles (DOT). It is reprinted below:

Many times, the VE will list jobs at Step 5 that are obsolete. No doubt you have had VEs say addresser, or tube operator, or cutter and paster, for example, not only exist but exist in the thousands. It is doubtful these jobs, and several others, exist in the current economy as described in the DOT.  

The Commissioner chartered the Occupational Information Development Advisory Panel (OIDAP) (See OIDAP commissioned the Occupational and Medical-Vocational Claims Review Study in 2011.) In that more than a decade old study, on slide seven, SSA presenters indicated, “[i]t is doubtful that [addresser, tube operator, and cutter and paster], as described in the DOT, currently exist in significant number in our economy.” And while SSA has not taken administrative notice of this study, it has never publicly refuted the findings or questioned the validity of them. Courts throughout the country have found jobs identified by the OIDAP study to be obsolete. The Supreme Court in Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) said substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Emphasis added)  

It is not unreasonable to believe the jobs listed in the OIDAP study and many others, document preparer comes to mind, are obsolete as they described in the DOT.  

So, how do you deal with the VE giving obsolete jobs?  

  • Ask the VE when the DOT description was last updated for that job. 
  • Read the DOT description to them and ask where and when was the last time they saw the job performed as in the DOT.
    • For example, ask them to tell you when and where they saw a person working eight hours per day, five days per week addressing “by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.” 
  • Get them to agree the job(s) is/are materially different in the current labor market than as set forth in the DOT. 
  • Get them to agree that the DOT description is obsolete. 
  • Get them to agree that the Occupational Outlook Handbook has more current information about jobs than the DOT. (SSA has taken administrative notice of The Occupational Outlook Handbook. See 20 C.F.R. § 404.1566(d)(5).)  
  • Get them to admit that the O*Net and various other government and published sources have reliable job information more current about job than the DOT. (See 20 C.F.R. § 404.1566(d).) 
  • Get a vocational opinion that the job(s) is/are obsolete and submit it as rebuttal evidence.  

Too many people are being denied their rightful benefits based on jobs that no longer exist. Your job is to make it clear that they do not exist in the current economy as described in the DOT. 

Social Security has added Initial and Reconsideration cases to its status report in Electronic Records Express (ERE).

Here is a screenshot:

ERE Status Report

The status report now allows a Representative to quickly determine whether or not they have been associated with a particular client’s disability claim file. Previously, we would have to try to access the claimant’s electronic folder, a more time-consuming process. This new feature allows quick confirmation that you have been associated with the file. It is terrific addition to the ERE system.

02/01/2024 update: A claim at Reconsideration drops off the status report once the Reconsideration determination has been made (and before an appeal from Reconsideration is made). So a Reconsideration claim dropping off the list is your first indication that a new determination has been made.