Retention Date: February 11, 2023
This EM provides instructions for all components to identify and, in some instances, code certain cases where the claimant resides in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, or Washington, and the claimant cannot perform his or her past relevant work but acquired skills from that work transferable to other skilled or semi-skilled work. Specifically, this EM provides instructions for all disability adjudicators and reviewers in the Disability Determination Services (DDS), the Extended Services Teams (EST), the federal processing sites (the Disability Processing Branches (DPB) and Disability Processing Units (DPU)), the Office of Hearings Operations (OHO), and the Office of Appellate Operations (OAO). In cases for which the criteria in section B.1 of this EM are met, adjudicators and reviewers will either code the case or will ensure that appropriate data is included in agency systems to ensure the case can be identified later. The specific instructions for each component are contained in section 3.C of this EM. All cases must be identified during processing, and either coded or processed using the instructions below to accurately capture all relevant cases.
This EM also provides instructions for all Field Offices (FO), Regional Offices (RO), Program Service Centers (PSC), OHO Offices, the Workload Support Units (WSU) and Teleservice Centers (TSC) for coding or processing cases of those claimants who self-identify as having Maxwell cases.
On August 24, 2020, the Ninth Circuit issued a precedential decision in Maxwell v. Saul, 971 F.3d 1128 (9th Cir. 2020). The case addressed the agency’s decision to find a claimant “not disabled” under the Medical-Vocational Guidelines, Part 404 Subpart P Appendix 2 Rule 202.07, because she acquired skills in her past relevant work that a vocational expert (VE) testified were transferable to two other occupations listed in the Dictionary of Occupational Titles (DOT). The Ninth Circuit reversed the agency’s decision. The Court acknowledged that, under Rule 202.07, a claimant is not disabled if he or she has skills from past relevant work that are transferable to other work. The Court held, however, that the claimant’s skills must transfer to more than two occupations. The Court based that requirement on the language in Part 404 Subpart P Appendix 2, section 202.00(c) that a finding of disabled is warranted “for individuals of advanced age who can no longer perform vocationally relevant past work and . . . who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work” (emphasis Court’s). The Court explained that a “range” of work requires more than one occupation and that a “significant” range “must require more than two” occupations. The Court did not identify a number of occupations that would constitute a “significant range of work.”
We are evaluating whether to publish an Acquiescence Ruling (AR) for the Maxwell decision. While awaiting further guidance, all components should follow the instructions set out in this EM to identify and, if applicable, code cases potentially affected by the August 24, 2020, Maxwell decision.
|Intended Audience:||All RCs/ARCs/ADs/FOs/TSCs/CSTs/PSCs/OCO/OCO-CSTs/OHO/OARO/DDSs/CO|
|Originating Office:||Office of the General Counsel|
|Title:||Maxwell v. Saul - Transferability of Skills under the Medical-Vocational Guidelines – Ninth Circuit – ACTION – One-time-Only Instructions|
|Type:||EM - Emergency Messages|
|Program:||Title XVI (SSI); Disability|
|Link To Reference:||See Reference at the end of this EM|
After SSA receives a precedential circuit court decision and determines that an AR may be required, it will begin to identify those cases that are pending before it within the circuit and that might be subject to readjudication if an AR is subsequently issued. When an AR is subsequently published, SSA will send a notice to those individuals whose cases it has identified which may be affected by the AR. The notice will provide information about the AR and the right to request readjudication under the AR. It is not necessary for an individual to receive a notice in order to request application of an AR to his or her case. See 404.985(b)(3), and 416.1485(b)(3).
2. SSA’s Responsibility in Implementing a Precedential Circuit Court Decision
A Maxwell case is one for which the following criteria are met:
1. Identifying Maxwell Cases
· The claimant resides in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, or Washington at the time of the agency action on the case at the initial, reconsideration, administrative hearing, or Appeals Council level;
A case is not a Maxwell case if it does not meet all of the criteria listed in section B.1 of this EM. For example, if the claimant has no past relevant skilled or semiskilled work, if the claimant has a mental impairment(s) that prevents skilled or semiskilled work, or if the claimant did not acquire transferable skills in his or her past relevant work, the case is not a Maxwell case. If the claimant does not reside in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, or Washington, it is not a Maxwell case.
1. Screening Cases to Identify Maxwell Cases
Do not search for cases. When you work a case at any level of the administrative review process, determine whether the case meets all of the criteria in section B.1 of this EM. If a case meets all of the criteria, process or code it as instructed in the applicable subsection of section C.3 of this EM. If a case does not meet all of the criteria in section B.1, it is not a Maxwell case. In addition, if SSA or an outside source identifies a case as possibly meeting the criteria in section B.1, review the case to determine whether it is a Maxwell case. If it is, process or code it as explained in the applicable subsection of section C.3 of this EM.
· The claimant cannot perform his or her past relevant work, as defined in 404.1560(b) and 416.960(b);
· The past relevant work includes skilled or semi-skilled work, as defined by 404.1568(b)-(c), and 416.968(b)-(c);
· The claimant acquired skills in his or her past relevant work that are transferable to jobs in other DOT occupations within the claimant’s residual functional capacity (RFC); and
· Because of the claimant’s transferable skills, application of the Medical-Vocational Guidelines, at Part 404 Subpart P Appendix 2, results in a finding of not disabled.
2. When a Case Is Not a Maxwell Case
Follow these instructions for handling Maxwell inquiries:
2. Instructions for Handling Inquiries
a. FO, WSU, RO, PSC and OHO Instructions
· If an individual contacts an FO, WSU, RO, PSC or OHO inquiring about Maxwell or self-identifies his or her case as a case affected by Maxwell, use the information in this EM to answer inquiries.
· Explain the criteria in section B.1 of this EM to the individual to see if the case qualifies as a Maxwell case.
· If the case meets the criteria in section B.1, follow the instructions in section C.3 of this EM to document the case and alert the DDS, OHO, or OAO.
· If an individual contacts the National 800 Number Network (N8NN) inquiring about Maxwell or self-identifies his or her case as a case affected by Maxwell, use the information in this EM to answer inquiries.
· Explain the criteria in section B.1 of this EM to the individual to see if his or her case qualifies as a Maxwell case.
· If the case meets the criteria in section B.1, follow the instructions in section C.3 of this EM to document the case and refer the claimant to the appropriate field office for further review.
· For additional instructions on handling inquiries on court cases, see TC 03001.040.
3. Processing and Coding Cases Identified as Maxwell Cases
· If a claimant contacts the FO, WSU, RO, or PSC in reference to his or her PENDING CLAIM (Modernized Development Worksheet (MDW) or Direct Contact) and self-identifies as affected by Maxwell
a. FO, WSU, RO, and PSC Instructions
o Add a “Special Message” to the Master Beneficiary Record (MBR) and/or remark to the Supplemental Security Income Record (SSR) “Claimant self-identified as Maxwell case” ( MS 06307.008, MS 08125.010).
o Add a message to the pending case in the Electronic Disability Collect Systems (EDCS) “Claimant self-identified as Maxwell case” (DI 81010.080).
· If a claimant contacts the N8NN in reference to his or her PENDING CLAIM and self-identifies as affected by Maxwell
o Clear the MDW, if necessary.
o Send an MDW to the FO requesting action to be taken on the claimant’s pending case (TC 29001.030).
o In the MDW Remarks section, indicate: “Claimant self-identified as Maxwell case. Please take necessary action to flag and alert DDS/OHO/OAO.”
o After sending the MDW action request, advise the claimant to contact his or her local FO to expedite communication to DDS, OHO, or OAO.
c. DDS, EST, DPB, and DPU Instructions
· Cases processed in the Electronic Claims Analysis Tool (eCAT) and the Disability Case Processing System (DCPS) that meet the Maxwell criteria in section B.1 of this EM will be identified using systems data. To facilitate proper identification, it is vital that DDS, EST, DPB, and DPU staff ensure the relevant vocational information is fully documented on the “Past Relevant Work” and “Other Work” pages in eCAT or the “Vocational Assessment” page in DCPS’s “Claim Analysis” section. This includes:
IMPORTANT: When transferability of skills is material to the determination, DDS, EST, DPB, and DPU staff must select the relevant medical-vocational rule (even if used as a framework) and cite occupation(s) that exist in significant numbers to which the skills transfer. For more information on transferability of skills, see DI 25015.017. For information on using a medical-vocational rule as a framework when transferability of skills is not material to the determination, see DI 25025.022.
o Answering the question “Does the individual have the RFC to perform PRW?”;
o Answering the question, “What was the highest skill level of the individual’s PRW?”;
o Selecting a medical-vocational rule;
o Selecting “Vocational Rule Directs” or “Rule used as a Framework”;
o Citing occupation(s); and;
o Providing a transferability of skills analysis in the “Vocational Explanation” text box.
· For paper cases processed outside of eCAT or DCPS that meet the Maxwell criteria in section B.1 of this EM, enter the three-digit Disability-Related List Code “992” in item 26 of the SSA-831 or item 34 of the SSA-832 and/or SSA-833. For more information regarding Disability-Related List Codes, see DI 33530.001.
When a case meets the Maxwell criteria in section B.1 of this EM, code the case as a Maxwell case.
OHO staff will assign the designated case characteristic code “MXWL” in the Case Processing and Management System (CPMS) and the Hearings and Appeals Case Processing System (HACPS).
When a case meets the Maxwell criteria in section B.1 of this EM, code the case as a Maxwell case.
OAO staff will assign the designated case characteristic code “MXWL” in the Appeals Review Processing System (ARPS) and, if applicable, the Office of Appellate Operations Case Processing System (OAOCPS).
FO/WSU/TSC/RO/PSC and DDS staff should direct all program-related and technical questions to your Regional Office (RO) support staff or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns, or problems to their central office contacts.
OHO staff should refer program and technical questions to OHO RO staff. OHO RO staff may contact the Office of the Chief Administrative Law Judge’s Division of Field Procedures.
OAO staff should direct questions through the management chain. Managers may contact the Executive Director’s Office.
20 CFR 404.985, 416.1485 Application of Circuit Court Law
20 C.F.R. pt. 404, subpt. P, app. 2 Medical-Vocational Guidelines
20 C.F.R. 404.1560, 416.960 When we Will Consider your Vocational Background
20 C.F.R. 404.1568, 416.968 Skill Requirements
DI 33530.001 Disability-Related List Code Numbers
DI 25015.017 Transferability of Skills Assessment (TSA)
DI 250n25.022 Using a Medical-Vocational Rule as a Framework When the Issue of Transferable Skills is Not Material to the Determination
DI 81010.080 Alerts, Flags, and Messages in the Electronic Disability Collect System (EDCS)
GN 03501.002 Coding Instructions – Identified Cases
MS 06307.008 Special Message Data (SMS1)
MS 08125.010 SSR Special Messages
TC 29001.030 Modernized Development Worksheets (MDWs)
TC 03001.040 Handling Inquiries on Court Cases
EM-22008 - Maxwell v. Saul - Transferability of Skills under the Medical-Vocational Guidelines – Ninth Circuit – ACTION – One-time-Only Instructions - 02/11/2022