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NOSSCR News Archive

Selected Older Items from the News Page

red arrow SSA Office Hour Changes: Budget Crisis

Beginning August 15th, all SSA local offices will close to the public one half hour earlier, to give the reduced staff time for pending work while minimizing overtime. Also, all offices will be closed on Friday, November 25th, the day after Thanksgiving, to "use the day for backlog reduction," according to Commissioner Astrue.

red arrow SSA Proposal Threatens Treatment Source Rules

SSA has proposed to eliminate the current requirement to recontact treating sources before referring a claimant to a consultative examination. 76 Fed. Reg. 20282 (Apr. 12, 2011). Available here. An article about the proposed change appears in the April 2011 NOSSCR Social Security Forum. The comment period closed on June 13th.

NOSSCR has filed comments opposing the change. We are concerned that the proposed change will diminish the role and weight of medical evidence from treating sources. Our comments are available here.

red arrow Online Folder Access Expands to the Appeals Council – Effective 6/18/11

ODAR advises NOSSCR:

On June 18, 2011, ODAR will implement online folder access for cases pending at the Appeals Council.

As of that date, anyone who already has eFolder Access will be able to access cases pending at the hearing level or at the Appeals Council level.

Approximately 5,500 representatives are currently registered for eFolder Access. Others interested in enrolling should contact their local hearing offices.

red arrow SSA Announces Policy Change on Probation/Parole Warrants – Posted: 5/27/11

The Social Security Administration (SSA) has issued instructions stating that effective immediately it will no longer suspend or deny Old Age, Survivors & Disability Insurance (OASDI) or Supplemental Security Income (SSI) benefits based solely on a probation or parole violation warrant. EM – 11032, “Clark Court Case: Stopping Suspensions and Denials Based Solely on Federal or State Probation or Parole Violation Warrants” (May 9, 2011).

The policy change follows last year’s decision of the Second Circuit ruling that SSA’s policy of suspending benefits on the basis of such warrants was unlawful, 602 F.3d 140 (2nd Cir. 2010) and this year’s decision of a New York district court certifying a nationwide class. 2011 WL 1044527 (S.D.N.Y. Mar. 18, 2011).

IMPORTANT - All cases at any stage of the administrative appeals process must be decided based on these new instructions. Advocates with pending Administrative Law Judge hearings on this issue should request an on the record determination and attach a copy of these instructions.

The EM also instructs SSA personnel not to take any action to remedy prior suspensions or denials. This reflects the fact that the court has not yet determined what relief it will order for class members whose benefits were suspended or denied in the past.

Gerald A. McIntyre (Class Counsel)
National Senior Citizens Law Center

red arrow Non-Disability Appeals Transferred to National Hearing Centers – Posted: 4/28/11

NOSSCR has learned in recent meetings with ODAR officials that some 10,000 appeals are pending at the hearing level with no medical issue, including overpayments (Title II and SSI) and SSI income/resource appeals. These claims are being documented with the help of new software tools and DDS training, and then transferred to the National Hearing Centers (NHCs) for a "limited" time to work down this large backlog. The agency plans to return jurisdiction to the local ODAR offices by the end of the calendar year. Non-disability cases already "scheduled" will not be transferred.

Advocates first reported one year ago that non-medical appeals were being transferred from the local hearing offices to a cadre of field ALJs serving as specialists. The ALJ union objected – and has renewed its concerns about the new NHC version of the same plan – contending that the normal rotational policy is necessary to ensure the reality and appearance of fairness. Assigning claims based on ALJ specialization has significant APA implications.

If faced with this re-assignment issue, remember the regulatory right to reject a remote hearing and thereby keep a non-medical appeal local. The rejection must be prompt after the hearing notice is issued, and a timely video rejection is defined loosely in the regulations as "at the earliest possible opportunity." 20 C.F.R. §§ 404.936(e), 416.1436(e) .

red arrow New Procedures at the Appeals Council – Posted: 1/17/11

During a recent meeting between NOSSCR and Appeals Council officials, we discussed how best to handle situations in which representatives requested copies of exhibits and/or recordings, but they received an Appeals Council final action before receiving the requested material.

As a result of these discussions and in an attempt to eliminate the need to file a civil action in such situations, the Appeals Council is establishing the new procedure below. The Appeals Council asks that representatives limit use of this process to only those situations in which they received a final Appeals Council action but did not receive the requested additional material.

If a representative receives a final Appeals Council action before he or she receives requested material (e.g., copies of exhibits and/or recording of the hearing), the representative should prepare a brief outline describing the situation, including the name and SSN of the claimant as well as the date the additional material was requested. The representative should FAX the outline to Teresa Jensen at 703-605-8691.

Ms. Jensen will immediately contact the appropriate Branch management staff. That staff will investigate the representative's allegation and contact the representative if they need additional information. Upon verification of the unassociated request, the Branch staff will immediately issue a notice vacating the prior Appeals Council action and notify the representative that copies of exhibits and/or recordings will be duplicated and provided as soon as possible. When the requested materials are released to the representative, the Appeals Council will provide additional time in which to submit additional material. Upon the conclusion of that time, the Appeals Council will again consider the claimant's request for review.

Submitting new evidence and other documents.
In addition to this new procedure, the Appeals Council wants to emphasize that representatives should submit new evidence and documents to the Appeals Council using only one of the several methods available. They can (in order of preference) either:

  • Upload the documents directly into the claimant's electronic folder using a barcode supplied by the Appeals Council staff (for the RQID number) and using the Electronic Records Express (ERE) website; or
  • FAX the materials directly into the claimant's electronic folder using a barcode supplied by the Appeals Council staff and using one of the three Toll Free electronic folder FAX numbers (provided with the barcode); or
  • Mail the materials to the Appeals Council.

Online access to files. By summer 2011, ODAR hopes to provide online access to electronic alims folders for authorized claimants' representatives.

red arrow NOSSCR Comments: Proposed Regulations on Mental Impairments
    Posted: 11/12/10

red arrow Registration of Representatives – SSA-1699
    NOSSCR Reply to Request for Comments [PDF] – Posted: 9/2/10

red arrow Supreme Court Amicus Briefs: NOSSCR Policy – Posted: 7/23/10

red arrow NOSSCR Testimony: Reconsideration and the Backlog – Posted: 5/4/10

The President’s fiscal year 2011 budget request, sent to Congress in February 2010, proposes to reinstate reconsideration in the 10 “prototype” states, starting with Michigan in 2011. Whether reconsideration would help claimants – or just cause more delay – was the focus of an April 27, 2010, hearing held by two House Ways and Means Subcommittees – the Subcommittee on Social Security and the Subcommittee on Income Security and Family Support. Nancy Shor, NOSSCR’s Executive Director, was invited to testify on behalf of the Consortium for Citizens with Disabilities Social Security Task Force, of which NOSSCR is an active member.

red arrow NOSSCR Comments: Drug Addiction and Alcoholism – Posted: 3/25/10

"SSA’s current policies represent reasonable interpretations of the Social Security Act regarding drug addiction and alcoholism. However, these policies are often misapplied or ignored by adjudicators. To assure correct and uniform adjudication by all agency decisionmakers and to avoid unnecessary delays for claimants, we recommend that SSA update the regulations to reflect the 1996 statutory change and issue formal substantive policy guidance for all adjudicators in Social Security Rulings (SSRs) that reflect the agency’s subregulatory instructions."

red arrow SSI Fee Withholding & Direct Payment are Now Permanent – Posted: 3/1/10

We are very pleased to report that H.R. 4532, the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010” was signed into law by President Obama on February 27, 2010.  H.R. 4532 makes permanent (1) withholding and direct payment of attorney’s fees in SSI cases; and (2) the program by which certain nonattorneys become eligible for direct payment of fees in Title II and SSI cases.  H.R. 4532 made no changes other than removal of the previous “sunset” date.

red arrow NOSSCR Comments: NPRM – Deletion of Endocrine Listings – Posted: 2/12/10

"[W]e urge SSA to reconsider the approach to delete all endocrine listings and to remove language from the preface that assumes all claimants have full access to health care and treatment."

red arrow NOSSCR Comments: Disability Service Improvement NPRM – Posted: 1/29/10

"We generally support the proposed changes in the Notice of Proposed Rulemaking (NPRM) to eliminate the remaining portions of 20 C.F.R., Part 405, and to return to a uniform process throughout the country."

red arrow Disability Backlog: House Hearing Testimony – Posted: 12/9/09

The current state of SSA’s disability claims backlogs and its ability to address them was the focus of a Congressional hearing held on November 19, 2009, by the House Ways and Means Social Security Subcommittee, “Clearing the Disability Backlogs: The Social Security Administration’s Progress and New Challenges Arising from the Recession.” In his opening statement, Subcommittee Chairman John Tanner (D-TN) noted the progress SSA has made at the ODAR hearing level in reducing the hearings backlog. But, “the bad news” is that the ODAR progress is threatened by the growing backlog in new disability claims.

We are very pleased that Beth Bates, Esq., a NOSSCR member from Jackson, TN, was invited to testify on behalf of the Consortium for Citizens with Disabilities Social Security Task Force, of which NOSSCR is an active member. She is a constituent of Chairman Tanner, whose district is in western Tennessee.

Ms. Bates’ testimony, available at this link, addressed the hardships faced by claimants waiting for a decision on their claims – deteriorating health, loss of financial stability, foreclosure, bankruptcy, and families breaking up. Descriptions of her own clients and those of other NOSSCR members put a human face on the backlog problem.

Other witnesses included SSA Commissioner Michael J. Astrue; Barbara B. Kennelly, Acting Chair of the Social Security Advisory Board; the SSA Inspector General, Patrick O’Carroll; ALJ Larry Auerbach, an ALJ in Atlanta, GA, testifying on behalf of the Federal Bar Association; and a representative from the National Council of Disability Determination Directors.

All of the witnesses’ written statements are available on the Subcommittee’s website at this link.

red arrow Disability Due Process: Special Report – Posted: 11/25/09

The News Journal of Wilmington, DE, has published an in-depth series of 11 stories called “Shut Out of Social Security – A Special Report.” The entire series of articles is available online at this link.

The series includes a database regarding ALJ allowance and denial rates between 2005 and 2008. The database allows you to search data in three ways: (1) By state; (2) By Hearing Office; and (3) By ALJ. The database is available at this link.

For a similar searchable database published in December 2008 by an Oregon paper, follow this link.

red arrow SSA Failure to Accommodate Visually Impaired [PDF] – Posted: 10/28/09

A federal district court judge in California has ruled that SSA violated Section 504 of the Rehabilitation Act, and its implementing regulations, by failing to provide “meaningful access” for SSA programs to all blind and visually impaired individuals. American Council of the Blind, et al. v. Astrue, No. C 05-04696-WHA (N.D.Cal. Oct. 20, 2009).

Plaintiffs in this nationwide class action, filed in 2005, sought to compel SSA to provide alternative formats of communication that would enable the class to have more equal access to participate in SSA programs. Specifically, the plaintiffs seek to have SSA provide its standard-print notices in formats such as Braille, large print, audio CD, and e-mail. Currently, notices are not provided in any of these formats. The court ordered very specific relief, requiring SSA to comply within certain timelines.

red arrow "Fleeing Felon" Nationwide Settlement – Update: 10/5/09

red arrow New Nominee for SSA Principal Deputy Commissioner – Posted: 10/5/09

President Obama has announced his intent to nominate Carolyn W. Colvin for Principal Deputy Commissioner of Social Security. The Principal Deputy Commissioner is the number 2 position at SSA. The Deputy Commissioner of Social Security position is designated in the Social Security Act, 42 U.S.C. § 902(b)(1), shall by appointed by the President, and confirmed by the U. S. Senate. The position has a six year term, like the Commissioner. The next step in the process is a confirmation hearing before the Senate Finance Committee and then a vote by the full Senate.

Ms. Colvin has previously served at SSA during the Clinton Administration for more than six years. Former Commissioner Shirley Chater appointed her as Deputy Commissioner for Policy and External Affairs in 1994 and then Deputy Commissioner for Programs, Policy, Evaluation and Communications in 1995. Former Commissioner Kenneth Apfel appointed her as Deputy Commissioner for Operations in April 1988.

red arrow OIDAP: DOT Replacement & "Occupational Information System"

NOSSCR and its members were invited to provide input to the Occupational Information Development Advisory Panel as it prepared to issue its recommendations in September 2009. A number of NOSSCR members provided us with information and suggestions, which helped us to form NOSSCR’s preliminary comments to the Panel. The reports of the panel subcommittees are availabe online: www.ssa.gov/oidap/. NOSSCR will submit more detailed and specific comments responding to the Panel’s recommendations

red arrow NOSSCR Joining Coalition Effort to Adequately Fund SSA

NOSSCR recently signed on to four letters sent by the Consortium for Citizens with Disabilities to key Congressional Appropriations Committees and Subcommittees supporting efforts to fund SSA in FY 2010 at the level requested by the President -- $11.6 billion. This amount represents a nearly 10% increase over the FY 2009 appropriation. Funding at this level is critical to address the backlogs in initial and hearing level disability decisions and to carry out other critical SSA workloads. The letters include a description of cases sent from NOSSCR members regarding the hardships their clients face while waiting for decisions on their claims.

The letters sent to the House and Senate Appropriations Subcommittees with jurisdiction over SSA are linked below. Letters also were sent to the Chairmen and Ranking Members of the House and Senate Appropriations Committees.

CCD Letter to House Appropriations Subcommittee – July 2009 [PDF]

CCD Letter to Senate Appropriations Subcommittee – July 2009 [PDF]