The Social Security Administration has issued an updated POMS about collateral estoppel and disability claims.  Collateral estoppel can apply when an individual receiving Social Security or SSI files a disability claim under a different title or for a different benefit under the same title. Collateral estoppel requires the Social Security administration to adopt a prior disability finding without needing to develop a new medical claims when:

1. The prior claim was for the same time period as the new application
2. Both the prior claim and the new claim apply the same definition of disability
3. Social Security has not made an intervening medical determination or decision finding that disability has ceased
4. The claimant has not engaged in substantial gainful activity since the prior onset date
5. The prior onset date is on or before the nonmedical requirements for the new claim are met
6. The prior favorable decision is not in terminated status
7. Social Security does not have reason to believe the prior determination or decision was wrong.

If the prior claim is in suspense status when the new claim is filed, Social Security will try to resolve the suspense issue.  If the suspense issue cannot be resolved when processing the new claim, Social Security will apply collateral estoppel if the suspense issue does not result in denial of the new claim.

The prior favorable disability determination is adopted even if a continuing disability review is pending for the prior claim.  (Social Security Dear Colleague Letter, July 16, 2024 and POMS DI 11011.001.)

The Social Security Administration’s new regulations about manner of appearance in administrative law judge hearings are effective as of November 23, 2024.

The new regulations allow Social Security to schedule hearings in one of four ways:

1. Audio appearance (previously called telephone appearance). Claimants can object to audio appearance within 30 days of receiving the notice of hearing.  The 30-day deadline can be extended for good cause.  Notwithstanding an objection, Social Security can schedule an audio hearing in extraordinary circumstances or when the claimant is incarcerated.
2. Agency video appearance (previously called video teleconferencing (VTC) appearance). This is holding the hearing by video conference in a Social Security office.  Claimants can object to audio appearance within 30 days of receiving the notice of hearing.  The 30-day deadline can be extended for good cause.
3. Online video appearance, which is video conference using the claimant’s personal electronic device. Claimants can agree to audio appearance within 30 days of receiving the notice of hearing.  The 30-day deadline can be extended for good cause.  Even without good cause, Social Security can consider a request to change to an online video hearing after the 30-day period if it would be efficient to conduct the hearing by online video and the circumstances provide a good reason the hearing by online video.  The claimant can withdraw their agreement ti online video any time before the hearing begins.
4. In person hearing at an Office of Hearings Operations hearings site.

(Social Security Dear Colleague Letter, November 21, 2024.)

The Social Security Administration has made several changes to its policies about waiver of overpayments.  Social Security must now begin from a neutral position when determining fault and must develop the evidence regarding whether the individual was at fault in causing the overpayment.

Social Security will now presume that people are unable to repay the overpayment without additional documentation if they receive Supplemental Security Income, Temporary Assistance to Needy Families (CalWORKs in California), veterans means tested benefits, Supplemental Nutrition Assistance Program (CalFresh in California) or Medicare Part D Extra Help.

Social Security will also presume inability to repay for people with household income of 150 percent of the federal poverty or below, and resources within the established limits.

The resource limit for a waiver is increased to $6,000 for one person, $10,000 for a couple, plus $1,200 per additional dependent.

Households can now exclude two vehicles (or three in certain situations) from their resources when determining eligibility for a waiver.

People are now considered unable to repay an overpayment if their income does not exceed their ordinary and necessary household expenses by more than $250.  (Social Security Dear Colleague Letter, November 25, 2024.)

Effective June 22, 2024, the Social Security Administration determined that 114 occupations listed in the Dictionary of Occupational Titles are not isolated jobs that can no longer be used to find that a person is not disabled.

Social Security disability determinations use a five step sequential evaluation process: 1) Is the person working or earning less than the defined substantial gainful activity amount? 2) Does the person have a severe impairment? 3) Does the condition meet or equal a listed impairment? 4) Can the person do their past relevant work? 5) Is there any work in the national economy that the person can do?

The rules change is about the fifth step of the sequential evaluation.  Social Security uses the Dictionary of Occupational Titles to determine whether a potential job exists substantial numbers in the national economy.  If Social Security finds that a person can do a job that exists in substantial numbers in the national economy, then Social Security will find them to be not disabled.  Social Security has determined that 114 jobs that are listed in the Dictionary of Occupational Titles no longer exist in the national economy in substantial numbers and therefore cannot be used to support a not disabled determination.

In addition, Social Security identified 13 jobs listed in the Dictionary of Occupational Titles that federal court have questioned.  Social Security is implementing an additional evidence requirement for those 13 jobs for a finding that they do exist in substantial numbers in the national economy.  (Social Security Matters, June 24, 2024, EM-24026, June 22, 2024, and EM-24027, June 22, 2024.)

Effective June 22, 2024, the Social Security Administration has reduced the past relevant work consideration to five years.

Social Security disability determinations use a five step sequential evaluation process: 1) Is the person working or earning less than the defined substantial gainful activity amount? 2) Does the person have a severe impairment? 3) Does the condition meet or equal a listed impairment? 4) Can the person do their past relevant work? 5) Is there any work in the national economy that the person can do?

The rules change is about the fourth step of the sequential evaluation.  Previously, Social Security looked at work for the past 15 years to determine if the person could do past relevant work.  That past relevant work period is now reduced to five years.

In addition, Social Security will no longer consider work that was done for less than 30 calendar days as past relevant work.  (Social Security Matters, June 26, 2024.)