Identification Number:
EM-23021
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/CSTs/PSCs/OCO/OCO- CSTs/OHO/OAO/CO/DDS/EST/DPB/DPU
Originating Office:Office of the General Counsel
Title:Sczepanski v. Saul – Considering Vocational Evidence About Employer Probationary-Period Practices and Policies – Second Circuit – ACTION – One-Time-Only Instructions
Type:EM - Emergency Messages
Program:Title II (RSI); Title XVI (SSI)
Link To Reference:See Reference at the end of this EM
 
Retention Date: 09/27/2023


A. Background

This EM provides instructions for all components to identify and code cases where the claimant resides in Connecticut, New York, or Vermont, and the record contains vocational evidence that the occupation(s) identified at step five of the sequential evaluation process (SEP), 20 CFR 404.1520(a)(4)(v), 20 CFR 416.920(a)(4)(v), require probationary periods where work demands during the probationary period exceed the claimant’s residual functional capacity (RFC). Specifically, this EM provides instructions for all disability adjudicators and reviewers in the disability determination services (DDS), Office of Hearings Operations (OHO), and the Office of Appellate Operations (OAO) to identify and code all cases for which the criteria in section B.1. of this EM are met.

This EM also provides instructions for all field offices (FOs), regional offices (ROs), program service centers (PSCs), the workload support units (WSU), and teleservice centers (TSCs) to use when coding cases of those claimants who self-identify their claims as meeting the Sczepanski criteria.

The specific instructions for each component are contained in section C of this EM. All affected cases must be identified and coded using these instructions so the agency can accurately capture all Sczepanski cases.

This EM directs identification and coding of appropriate cases. It does not change existing adjudication policy.
    1. The Sczepanski Decision.
    On January 7, 2020, the Court of Appeals for the Second Circuit issued a precedential decision in Sczepanski v. Saul, 946 F.3d 152 (2020). The case addressed the agency’s step five decision to find a claimant not disabled despite the record containing evidence showing that work demands present only during employer-specific probationary periods exceeded the claimant’s RFC. In Sczepanski, the RFC included a limitation that the claimant could miss up to one day of work per month. At the hearing, the claimant’s representative asked the vocational expert (VE) how much absenteeism employers would tolerate at a sedentary, unskilled, entry-level job. The VE replied that the typical employer for those jobs would tolerate no more than two days per month of absenteeism over the course of employment. The representative also questioned the VE about absenteeism during probationary periods at the start of employment. In response, the VE testified that typically, employers would tolerate no absences during probationary periods. The Administrative Law Judge (ALJ) issued a decision finding the claimant not disabled based on the ability to perform other work at step five without addressing whether the claimant could satisfy heightened attendance standards imposed by employers during a probationary period.

    The Second Circuit vacated the agency’s decision. The court found the inability to complete a probationary period relevant to the determination of a claimant’s ability to perform other work at step five. In so finding, the court held that “[t]he ability to complete a probationary period is ... tantamount to the ability to keep a job, and … the ability to keep a job is a necessary prerequisite to the ability to engage in substantial gainful activity.” The court remanded the case with instructions for the agency to further develop the record. Specifically, the court instructed the agency to determine whether a significant number of jobs remain that either lack a probationary period or impose probationary-period requirements consistent with the claimant’s RFC.

    We are evaluating whether to publish an Acquiescence Ruling (AR) for the Sczepanski decision. While awaiting further guidance, all components should follow the instructions set out in this EM to identify and code cases potentially affected by the January 7, 2020, Sczepanski decision.

    NOTE: This EM instructs components to identify and code cases only, it does not change existing adjudication policy.
      2. SSA’s Responsibility in Implementing a Precedential Circuit Court Decision

    After SSA receives a precedential circuit court decision and determines that an AR may be required, it will identify those cases that are pending before it within the circuit that might be subject to readjudication if an AR is subsequently issued. If an AR is subsequently published, SSA will send a notice to those individuals whose cases 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 their case. 20 CFR 404.985(b)(3), 20 CFR 416.1485(b)(3).

    B. Policy
      1. Identifying Sczepanski Cases

    a. A Sczepanski case is one for which all of the following criteria are met:
            · The claimant resides in Connecticut, New York, or Vermont at the time of the agency action on the case at the initial, reconsideration, administrative hearing, or Appeals Council level;
              · The adjudicator finds that the claimant is not capable of performing any of their past relevant work as actually or generally performed in the national economy, there is no step four finding, or, after finding the claimant can perform their past relevant work, the adjudicator makes an alternative finding that the claimant can also perform other work at step five, 20 CFR 404.1560, 20 CFR 416.960;
                · Vocational evidence supports a step five finding that the claimant retains the ability to perform the physical and mental work demands of a significant number of jobs (in one or more occupations) in the national economy, 20 CFR 404.1566(b), 20 CFR 416.966(b);
                  · The record contains specific vocational evidence about employer probationary periods for at least one of the occupations identified at step five of the SEP, 20 CFR 404.1566(e), 20 CFR 416.966(e);
                    · The physical or mental work demands during those probationary periods exceed the claimant’s RFC, 20 CFR 404.1545(a)(4), 20 CFR 416.945(a)(4); and
                      · The adjudicator finds the claimant not disabled at step five of the SEP.
                b. Examples:
                      · The claimant lives in Vermont at the time of the reconsideration determination. The RFC includes a limitation for being absent up to one day of work per month. The adjudicator finds the claimant can perform the physical and mental demands of three occupations in the national economy. But, the record contains evidence that employers for at least one of those occupations typically require a probationary period of at least a month, during which no absences are tolerated. The ALJ finds the claimant not disabled at step five.

                      · The claimant lives in New York at the time of the ALJ decision. The claimant’s RFC includes a limitation to no more than occasional social interaction with coworkers or supervisors. With that RFC, the VE testifies, a hypothetical person of claimant’s age, education, and work experience, can perform the physical and mental demands of three occupations in the national economy. After the hearing, the claimant’s representative submits evidence from another vocational expert opining that employers, for at least one of the occupations identified at step five, require probationary periods that involve frequent social interaction with coworkers or supervisors and, therefore, exceed the claimant’s RFC. The ALJ finds the claimant not disabled at step five.
                      c. When a Case Is Not a Sczepanski Case
                      A case is not a Sczepanski case if it does not meet all of the criteria listed in section B.1 of this EM.
                        · A case is not a Sczepanski case if:
                          o The claimant does not reside in Connecticut, New York, or Vermont at the time of the agency action, or
                            o The adjudicator does not make any finding at step five of the SEP, or
                              o The record contains no evidence regarding probationary period practices of employers for occupation(s) identified at step five of the SEP, or
                                o The probationary period work demands do not exceed the claimant’s RFC.
                          NOTE: Disability adjudicators are not required to develop or seek out any vocational evidence regarding probationary period practices of employers for occupations or jobs identified at step five of the sequential evaluation.

                          C. Procedure

                          1. Screening Cases to be Coded as Sczepanski Cases

                          Do not search for cases. When evaluating a case at the initial, reconsideration, administrative hearing, or Appeals Council 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, code it as instructed in the applicable subsection of section C.3 of this EM. If a case does not meet all of the section B.1 criteria do not code or identify it as a Sczepanski case. If SSA or an outside source identifies a case as possibly meeting the criteria in section B.1 of this EM, code the case as explained in the applicable subsection of section C.3 of this EM for later screening to confirm that it is a Sczepanski case.
                            2. Instructions for Handling Sczepanski Inquiries:
                                a. FO, WSU, RO, and PSC Instructions
                                  · If an individual contacts an FO, WSU, RO, or PSC inquiring about Sczepanski or self-identifies their case as a case affected by Sczepanski, follow the instructions in section C.3 of this EM to code the case.

                                b. TSC Instructions
                                  · If an individual contacts the National 800 Number Network (N8NN) inquiring about Sczepanski or self-identifies their case as a case affected by Sczepanski, follow the instructions in section C.3 of this EM to code the case.
                              3. Identifying and Coding Cases Sczepanski Cases
                                a. FO, WSU, RO, and PSC Instructions
                                    · If a claimant contacts the FO, WSU, RO, or PSC in reference to their case (Modernized Development Worksheet (MDW) or Direct Contact) and self-identifies their case as affected by Sczepanski:
                                        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 Sczepanski case.”
                                          o Add a Message to the case in the Electronic Disability Collect Systems (EDCS) “Claimant self-identified as Sczepanski case,” see DI 81010.080.
                                            o Clear the MDW, if necessary.
                                        b. TSC Instructions
                                            · If a claimant contacts the N8NN in reference to their case and self-identifies their case as affected by Sczepanski:
                                                o Send an MDW to the FO requesting action on the claimant’s case.
                                                  o In the MDW Remarks section, indicate: “Claimant self-identified as Sczepanski case. Please take necessary action to code and alert DDS/OHO/OAO.”

                                              c. DDS, Extended Service Team (EST), Disability Policy Branch (DPB), and Disability Processing Unit (DPU) Instructions
                                                · When a case meets the Sczepanski criteria in section B.1 of this EM, code the case as a Sczepanski case.
                                                  o Enter the three-digit Disability-Related List Code “185” in item 26 of the SSA-831 or item 34 of the SSA-832 and/or SSA-833.
                                                    o For more information regarding Disability-Related List Codes, see DI 33530.001 and DI 33530.005.

                                                d. OHO Instructions
                                                  · If the Sczepanski criteria in section B.1 are satisfied, the ALJ must note the existence of the criteria in the “comments” field at step five of the Decision Writing Instructions (DWI) or, if a paper case, in the step five portion of the decision instructions uploaded to Electronic Non-Medical (ENM). The assigned decision writer will:
                                                      o Add the Case Characteristic type “Other” - “Sczepanski v Saul Potential AR 2nd Cir (SCZE)” in the Case Processing and Management System (CPMS) and the Hearings and Appeals Case Processing System (HACPS).
                                                        o Add a CPMS Remark and HACPS Case Note indicating “Case satisfies Sczepanski criteria.”
                                                        · If the Sczepanski criteria in section B.1 are satisfied and the ALJ is writing the decision (i.e., AWPC/AWRT/AWSR/AWFL cases), the ALJ must alert hearing office management so the appropriate case characteristic and remark can be added at case closure.
                                                          · If a claimant or representative contacts OHO in reference to a case and self-identifies their case as affected by Sczepanski, or if OHO is advised of such report by the FO or other component:
                                                              o Refer the case to hearing office management for verification that the Sczepanski criteria in section B.1 are satisfied.
                                                              o Management or a designated employee should review the file, including vocational expert evidence, to determine if the Sczepanski criteria in section B.1 are present. If the criteria are present:
                                                                  § Add the SCZE Case Characteristic type “Other” - “Sczepanski v Saul Potential AR 2nd Cir (SCZE)” in CPMS and HACPS.

                                                                  § Add the remark: “Case satisfies Sczepanski criteria” to CPMS Remarks and HACPS Case Notes.
                                                              · If an OHO employee thinks a case is affected by Sczepanski and it is not identified with the relevant case characteristic or remark, the employee should refer the case to hearing office management.
                                                            e. OAO Instructions
                                                              · When a case meets the Sczepanski criteria in section B.1 of this EM, check whether the case is already coded, and, if not, code the case as a Sczepanski case.
                                                                  o OAO staff will check for existence of the designated Case Characteristic code “SCZE” in the Appeals Review Processing System (ARPS).
                                                                    o If the “SCZE” code is not present on the case, add the code in ARPS and, if applicable, to the Office of Appellate Operations Case Processing System (OAOCPS).

                                                            f. Questions
                                                                  · FO/WSU/TSC/RO/DDS/EST/DPB/DPU and PSC staff should direct all program-related and technical questions to their RO support staff or PSC operations analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns, or problems to their central office contacts.
                                                                    · OHO personnel should direct questions through their management chain. OHO RO staff may contact the Office of the Chief Administrative Law Judge’s Division of Field Procedures.
                                                                      · OAO staff should direct questions through their management chain. Managers may contact the Executive Director’s Office.

                                                                References

                                                                20 CFR 404.985, 20 CFR 416.1485 Application of circuit court law
                                                                20 CFR 404.1545, 20 CFR 416.945 Your residual functional capacity
                                                                20 CFR 404.1560, 20 CFR 416.960 When we will consider your vocational background
                                                                20 CFR 404.1566, 20 CFR 416.966 Work which exists in the national economy
                                                                DI 33530.001 Disability-Related List Code Numbers
                                                                DI 33530.005 Disability-Related List Codes
                                                                DI 81010.080 Alerts, Flags, and Messages in the Electronic Disability Collect System (EDCS)
                                                                EM-23021 - Sczepanski v. Saul – Considering Vocational Evidence About Employer Probationary-Period Practices and Policies – Second Circuit – ACTION – One-Time-Only Instructions - 03/27/2023