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.