federal court | Disability Law Section

Telephone and video hearings

SSA has announced they will continue offering the option of telephone hearings, and video hearings will be offered via Microsoft Teams this fall. There has not yet been an announcement as to when in person hearings will again take place.

Video Consultative Examinations

POMS DI 22510.012 continues to allow psychological consultative examinations via video, only if the claimant agrees to the video CE, and if no testing is required.

Delays in Preparation of Certified Administrative Record (CARs) Impacting Federal Appeals

COVID-19 has impacted SSA’s ability to compile and prepare Certified Administrative Records (CARs), which has resulted in delays in appeals before district courts. For example, the Central District of California ordered on April 17, 2020 that all Social Security case deadlines are stayed for: 1) actions brought against the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g) filed on or after the April 17, 2020, and 2) those previously-filed actions in which the Commissioner has not prepared and served Plaintiff with the CAR. (Read the Order here: Order. ) Check with individual courts to determine how they are handling the delay in CARs.

Lawsuit Regarding SSA’s Wet Signature Requirements

In May 2020, the National Federation of the Blind filed suit against SSA for its “wet signature” requirement, 20cv1160 in the District of Columbia. In July 2020, the court denied Plaintiff’s motion for preliminary injunction. The case is still pending. Read/listen to an interview regarding the suit here: federalnewsnetwork.com/

SSA’s SSI Award Rate Lowest in 20 Years

David A. Weaver, Ph.D., economist and retired Federal employee, authored the linked article regarding SSI awards being the lowest rate they have been in 20 years: Weaver Article

Maxwell v. Saul, 9th Cir., 18-35992

In August, the 9th Cir. affirmed in part, and reversed in part, the district court’s decision affirming the denial of claimant’s application for disability insurance benefits and supplemental security income. The court considered whether two occupations was sufficient to satisfy the “significant range of work” requirement of the Medical-Vocational Guidelines of 20 C.F.R. pt. 404, subpt. P, app 2, Rules 202.00(c), 202.07. The court rejected the Commissioner of Social Security’s contention that claimant forfeited any challenge to the ALJ’s finding that she was not disabled by failing to raise the issue of significant range of work before the ALJ or Appeals Council.

Previously, in Lounsburry, the court held that for the ALJ to find the Plaintiff has transferrable skills to a “significant range of work,” more than 1 job must be identified. Now, the court held that two occupations also did not constitute a “significant range of work,” and were insufficient to satisfy Rule 202.00(c)’s requirement. The panel held further that because claimant’s skills were readily transferrable to only two occupations, the ALJ erred in concluding that she was not disabled. The panel reversed in part and remanded with instructions for calculation and payment of benefits for the period after claimant reached 55 years of age.

A bright-light rule for the number of jobs required to constitute a significant range was not established.