Dispatches from Camp: Updates from the CEO

David Camp, NOSSCR CEO

As many of you already know, I know Acting Commissioner Lee Dudek and speak with him regularly. Many of the reports of staffing changes and DOGE access have been wildly inaccurate, and you can count on NOSSCR to remain engaged with SSA productively undeterred by a media frenzy and politicians using SSA as a prop.

On Tuesday, I met with President Trump’s nominee Frank Bisignano at his Fiserv headquarters in New Jersey. Mr. Bisignano is up for a full six-year term as Commissioner of Social Security, and our relationship will be of paramount importance for NOSSCR’s members. After a brief withdrawal for technical nomination reasons, his nomination was received in the Senate and referred to the Finance Committee on January 28th. A hearing has not yet been scheduled, but I expect it to occur in March. Of course, we’re educating Senators on questions to pose to Mr. Bisignano in their meetings and the confirmation hearing—but I appreciated Mr. Bisignano’s willingness to talk in person at his office. I found him to be engaging, even inspiring, regarding the potential for customer service and modernization improvements at SSA. Mr. Bisignano has an earned reputation for turning around failing companies, and for managing very large teams. He pointed out that his current company moves more money each day than SSA pays in a year, and that he’s comfortable with large scale efficiency transitions, fraud prevention, and public accountability. It’s clear that the SSA phone systems, initial and reconsideration backlogs, and antiquated processing of information will all be high priorities. He was interested in our proposals for the efficient sharing of health information—structures that could get NOSSCR’s members out of the business of acquiring and paying for paper or imaged medical records. AI will be a priority, and we talked about NOSSCR’s lead role in establishing guardrails while taking better advantage of the private sector’s capacity to innovate. Mr. Bisignano easily agrees with our position that SSA must do a better job prioritizing work incentives and expanding Ticket to Work. Lastly, SSA’s management structure needs to be reworked to address current priorities and to avoid—for example—having the disability claim process handled by five different components that don’t collaborate.

We in the NOSSCR community already know that SSA’s staffing and management structure has failed our claimant and beneficiary populations. While much of the media reporting lately has been inaccurate, the reality is nevertheless traumatic for those that have worked at SSA for entire careers—not to mention contractors that are accustomed to automatic payments despite lackluster performance. There has never been a state DDS that has met the regulatory timing benchmarks, and it is literally killing our clients. If you could see what I’m seeing, talk to Lee Dudek and Frank Bisignano as I have, and know what Drew Ferguson and I know of the political background to these changes—you’d be looking ahead to some improvements at our treasured SSA. It won’t all be smooth, but I’m eager to work with a Commissioner Bisignano and to reshape this agency into that old motto “world class service”—but this time without the crushing disability claim backlogs.

I can’t promise there won’t be big problems or pain caused by the current intrusion of politicians into what should be an independent agency. But, rest assured that we will be in the room, your voice everywhere it matters, and we will continue to defend and build a practice area that SSA and claimants need.

President’s Corner

Paul Burkhalter, NOSSCR President

TIMES LIKE THESE

We are you.

It’s easy to think of NOSSCR as a distant organization in Washington—one that puts on great CLE programs, provides updates on policy changes, and lobbies on behalf of claimants and those who represent them. But the truth is, we see the world just like you do.

I am a partner in a five-attorney Social Security Disability firm. I’ve worked as an associate attorney at a Social Security Disability law firm, as an attorney for SSA, and at Legal Services of New York City. I know what it’s like to fight for people who desperately need their Social Security benefits. And I’m not alone.

Our CEO, David Camp, started his career in a legal services program before leading a firm focused on helping homeless clients secure benefits. Our Chief Strategy Officer, Laura Beth Waller, represented disability claimants in federal courts throughout the Fourth Circuit. Our Senior Counsel, Jennifer Cronenberg, worked as an associate attorney, appearing daily before ALJs on behalf of claimants. Our Litigation Director, Tom Krause, spent years representing claimants at Legal Services Corp. of Iowa before transitioning to private practice, where he focused on federal court appeals.

We understand firsthand the struggles of practicing Social Security disability law.

In my own practice, I worry every day about whether hearing office delays will prevent my clients from getting the benefits they need to pay rent and feed their families. I stress over whether SSA will pay my fees promptly so I can pay my staff. I feel my team’s frustration when they wait on hold for over 30 minutes with SSA—only for the call to be dropped. And I know that when I send a client to a field office for in-person help, they may wait for hours just to be seen.

Because we know these realities, we are deeply concerned about recent changes—such as the closure of SSA field offices and remote hearing sites in locations like White Plains, NY; Logan, WV; Carlsbad, CA; Roanoke Rapids, NC; Batesville, AR; Columbus, OH; Okemos, MI; Nacogdoches, TX; Green Bay, WI; and Las Vegas, NV. We also worry about further reductions to SSA’s already overstretched workforce. (Source: Doge.gov; ProPublica.org – Anxiety Mounts Among Social Security Recipients as DOGE Troops Settle In, 2/22/25).

These changes—and likely more to come—will impact our clients’ ability to receive the benefits and medical coverage they desperately need. They will also affect our ability, as representatives, to reach SSA employees to help us get assistance for our clients.

Given these challenges, we want to hear from you. If you notice a decline (or improvement) in the quality of SSA services, let us know. More importantly, encourage your clients to contact their Congressional representatives when they experience problems.

Rest assured, NOSSCR is taking action. We are in the room when Congress considers these changes. Former Congressman Drew Ferguson, who previously chaired the House Subcommittee on Social Security, has joined NOSSCR as our new Senior Political Advisor. Be sure to register for the free NOSSCR PAC Webinar on March 10th at 4 PM ET to hear directly from him. We also maintain open lines of communication with SSA leadership, including Acting Commissioner Leland Dudek—who will speak at our upcoming Spring conference—and we look forward to engaging with Commissioner nominee Frank Bisignano. Our many allies within SSA continue to keep us informed as changes unfold.

Finally, I want to address the emergence of new groups claiming to represent Social Security claimant attorneys and representatives—offering CLE, software, and little else. I urge you to look closely at who is behind these organizations. Do they truly share your interests? Do they personally represent clients struggling to secure healthcare, pay rent, and obtain Social Security disability benefits? Or are they simply trying to sell you a Medicare plan or software? Do they advocate for legislation that benefits you and your clients—or just their own business interests?

At NOSSCR, I promise we remain committed to fighting for what is best for the claimants we represent and the businesses that serve them.

Piemonte’s Perspective

George Piemonte, NOSSCR 11th Circuit Board Representative

For this month’s installment, we will review some general principles regarding cross-examining the VE. You must approach every case on the assumption that it will end up in court. Therefore, you must lay the foundations for issues to be litigated. To fail to do so is a disservice to your client.

1. You have the right to fully question the VE on any pertinent matter within the VE’s area of expertise per HALLEX I-2-6-74(E). I recommend having a copy of that HALLEX with you in all hearings so you can hand up a copy to the ALJ if necessary. If the ALJ still gives you grief about a proper cross-examination, I suggest asking the ALJ, “So, your honor, just to be clear for the hearing recording, you are instructing me not to fully develop the vocational evidence for this case as I am required to do by SSR 24-3p?” The ALJ and Appeals Council may not care, but a court likely will.
   • Note that per HALLEX I-2-6-74(C)(1) and (2), the VE must identify the source(s) of data they used and explain their approach to estimating job numbers. Don’t accept a word salad as an explanation. Make the VE tell you precisely how they reached the job numbers they stated.

2. Save attacks for ridiculous testimony that is material. To illustrate, the VE says employers will allow workers to lie down during the workday whenever needed. You know that is ridiculous and is far from accurate. But there is no evidence in the record or testimony your client needs to lay. So, while the VE’s statement is clearly ludicrous, it does nothing to harm your client’s case. Attacking it and getting the VE to concede it is wrong does nothing to advance your client’s case.
   • Now, if the evidence documents that your client has migraine headaches two times a week at unpredictable times and must lay down for 1 to 2 hours until they subside, the VE’s statement does harm your client’s case. That is a time to attack.
   • So, the bottom line is to ask questions that are pertinent to the case and supported by the evidence.

3. Uncontradicted fabrications by the VE are substantial evidence. With number 2 above in mind, if the VE holds their ground and refuses to give in, you must get your own vocational evidence. Remember, uncontroverted bogus testimony is substantial evidence. Don’t worry about the 5-day rule; you have the right to submit rebuttal evidence:
   • Administrative Procedures Act – 5 U.S.C. § 556(d) “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.”
   • SSR 96-9p fn 8 – “Whenever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision.”
   • 81 Fed. Reg. 90987, 90991 (Dec. 16, 2016) – “if an ALJ introduces new evidence at or after a hearing, the claimant could use the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3) to submit rebuttal evidence. The claimant could also rebut evidence introduced at or after the hearing by submitting a written statement to the ALJ. As previously mentioned, we added language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements.”

4. Asking a hypothetical question is usually essential, but it is not a cross-examination. The ALJ can summarily dismiss your hypothetical by saying something like it “is not supported by the record.” Don’t make it easy for the ALJ to ignore your questions. You also have to attack and hopefully eliminate material harmful testimony. 

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.

San Diego September 2025 Speaker Proposals Due TOMORROW!

The National Organization of Social Security Claimants’ Representatives is seeking dynamic and engaging speakers for our Fall National Conference, set to take place in San Diego, CA from September 8-12, 2025! This is your opportunity to share your expertise with hundreds of attorneys and advocates who represent Social Security disability claimants.

We are interested in proposals on a wide range of topics related to Social Security disability law and practice, including:

• Recent developments in Social Security disability law
• Effective advocacy strategies
• Representing claimants with mental impairments
• The role of medical evidence in Social Security disability claims
• Vocational issues in Social Security disability claims
• Law office management, including utilizing technology
• Ethical considerations in Social Security disability practice

We are particularly interested in proposals that offer practical advice and insights that attendees can use in their everyday practice.

Submission Guidelines

Interested speakers should submit a proposal that includes the following:

• Title of presentation
• Brief description of presentation (no more than 250 words)
• Speaker biography (no more than 100 words)
• Headshot
• Contact information

Deadline for Submissions

The deadline for submitting proposals is February 28, 2025.

Deadline for Materials

Presentation Materials will be due May 2, 2025.

Benefits of Speaking

Speakers will receive a $500 discount on registration to the conference (limited to two speakers per session, only one discount per person), as well as recognition in the conference program.

How to Submit

Please follow this link and submit your proposal electronically through our website.

We look forward to receiving your proposals!

Just Ask Jennifer: A Lot Going On At The Moment

Jennifer Cronenberg, NOSSCR Senior Counsel and Director of Legal Information

I started this article last Friday, providing detailed responses to the many outstanding questions from last week’s NOSSCR check-in session. But as I reviewed the article for today’s publication, I realized that things are moving so quickly with this administration, that many of the answers were already outdated. So instead, I offer you this — here’s what we know:

• Lee Dudek is now the Acting Commissioner of Social Security. NOSSCR has a longstanding good working relationship with the Acting Commissioner, and we are encouraged by his early commitment to “engage directly with key outside stakeholders on topics including, protecting the integrity of our programs and identifying opportunities for efficiencies such as program simplification and technology.”

• Gina Clemons, previously the Deputy Commissioner for the Office of Analytics, Review, and Oversight (OARO) (and the Acting Commissioner’s former boss), will now oversee engagement with outside stakeholders, including advocates and members of the representative community. OARO is undergoing an “organizational realignment,” moving prior OARO functions to other parts of the agency in order to “streamline layers of management, increase data sharing with essential Social Security components, and speed the opportunities to identify fraud, waste, and abuse and implement needed solutions.” NOSSCR has always enjoyed a positive working relationship with Gina. She understands the need to make adjudication more efficient, and has previously worked closely with us towards improved operations.

• NOSSCR will join other advocacy groups next week in DC to meet with the Acting Commissioner and Gina Clemons to discuss the current state of things and advocate for advancing our shared priorities.

• The agency has eliminated the Office of Transformation and put those employees on leave. Under Commissioner O’Malley’s leadership, this office was tasked with leading the agency’s modernization efforts. We are hopeful that the agency’s new leadership will continue to prioritize increased efficiencies through other components of the agency.

• On Tuesday, February 25, the agency announced that they were closing the Office of Civil Rights and Equal Opportunity and placing those employees on leave. The agency’s press release indicates that they “will transfer responsibility for processing Equal Employment Opportunity complaints, reasonable accommodation requests, and other statutorily required functions to other SSA components to ensure compliance with existing legal authorities.”

• On Wednesday, February 26, the Office of Management and Budget (OMB) and the Office of Personnel Management (OPM) sent a letter to “Heads of Executive Departments and Agencies” providing “Guidance on Agency RIF and Reorganization Plans Requested by Implementing The President’s “Department of Government Efficiency” Workforce Optimization Initiative.” The letter, which outlines how agencies should reduce staff, notes that “agencies or components that provide direct services to citizens (such as Social Security, Medicare, and veterans’ health care) shall not implement any proposed ARRPs [Agency RIF and Reorganization Plans] until OMB and OPM certify that the plans will have a positive effect on the delivery of such services.”

• The Department of Justice wrote a letter on February 20, indicating that they would “no longer defend” the “multiple layers of removal restrictions for administrative law judges” in court. There is pending litigation where this will likely be relevant, as well additional litigation that is sure to emerge because of this letter; however, for now, there has been no reduction in force in the SSA ALJ population.

• For a variety of reasons, some Social Security offices are slated to close in the following months, including the White Plains, NY OHO. We are awaiting guidance from our contacts on what will happen to the White Plains caseload, but it is our expectation that hearings that can be held remotely will be distributed nationwide to ensure timely processing. DOGE is reporting several other “savings” with additional Social Security office closings. We do not have additional details at this time; however, please bear in mind that many of these “closings” are consolidations with other nearby office buildings.

• Since the November 2024 updates to Social Security’s rules for determining the time, manner of appearance, and place for hearing, there have been no additional changes to OHO’s hearing scheduling policy. This means, assuming that proper hearing preference selection is indicated on forms HA-55 and HA-56, that remote hearings will continue regardless of whether OHO staff are working in-office or remotely. OHO offices are equipped with the needed technology to conduct all hearing modalities: in-person, audio, agency video, and online video. Should you encounter an office or ALJ who are refusing to schedule a certain type of hearing, please let me know.

• There is no pause on the payment of representative fees. Certainly the agency takes far longer than it should to process fees (and benefits). Improving the effectuation of benefits and the processing of fees in one of NOSSCR’s main priorities, and we are optimistic that Bisignano’s background will allow him to see the importance of this prioritization.

While NOSSCR strives to bring you up to date information through member meetings, Forum publications, and email pushes, you can also subscribe to various portions of SSA’s website for timely updates directly from the agency. Consider visiting the following pages and selecting “subscribe”:

• https://www.ssa.gov/news/press/releases/
• https://www.ssa.gov/news/advocates/#advocates2025
• https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=EM

As always, NOSSCR is here for you. Please keep us updated with what you’re experiencing in the field. In turn, we will keep you updated with what we’re hearing from the agency and Capitol Hill. Together, we will weather whatever comes next.

Social Security Fairness Act Updates

The Social Security Fairness Act was signed into law on January 5, 2025.

The Act ends the Windfall Elimination Provision (WEP) and Government Pension Offset (GPO). These provisions reduced or eliminated the Social Security benefits of over 3.2 million people who receive a pension based on work that was not covered by Social Security (a “non-covered pension”) because they did not pay Social Security taxes. This law increases Social Security benefits for certain types of workers, including some:

• teachers, firefighters, and police officers in many states;
• federal employees covered by the Civil Service Retirement System; and
• people whose work had been covered by a foreign social security system.

In a call on Wednesday, February 26, 2025, Acting Commissioner Dudek expressed the agency’s commitment to processing these claims quickly and efficiently. The agency has a webpage dedicated to the Social Security Fairness Act with instructions for beneficiaries on what to do to ensure timely benefit correction. The webpage is being updated frequently and has a subscription option at the top so that you can be alerted when any changes are made to the page. The most notably news from this week is the following:

Starting the week of February 24, 2025, SSA is beginning to pay retroactive benefits and will increase monthly benefit payments to people whose benefits have been affected by the WEP and GPO.

If a beneficiary is due retroactive benefits as a result of the Act, they will receive a one-time retroactive payment, deposited into the bank account SSA has on file, by the end of March. This retroactive payment will cover the increase in their benefit amount back to January 2024, the month when WEP and GPO no longer apply.

Social Security benefits are paid one month behind. Most affected beneficiaries will begin receiving their new monthly benefit amount in April 2025 (for their March 2025 benefit).

Anyone whose monthly benefit is adjusted, or who will get a retroactive payment, will receive a mailed notice from Social Security explaining the benefit change or retroactive payment.

NOTE: A beneficiary may receive two mailed notices, the first when WEP or GPO is removed from their record, and a second when their monthly benefit amount is adjusted for their new monthly payment amount. They may receive the retroactive payment before receiving the mailed notice.

We have been able to expedite payments due to the use of automation. For the many complex cases that cannot be processed automatically, additional time is required to manually update the records and pay both retroactive benefits and the new benefits amount.

We urge beneficiaries to wait until April to inquire about the status of their retroactive payment, since these payments will process incrementally throughout March.

Beneficiaries should also wait until after receiving their April payment before contacting SSA to ask about their monthly benefit amount because the new amount will not be reflected until April for their March payment.

There are a myriad of individuals in a variety of benefits’ situations who may be impacted by these changes. We encourage members to review the agency’s FAQ on the linked webpage for guidance.

Don’t Miss Out! Mark Your Calendars for Upcoming NOSSCR Events!

Want to stay ahead in the world of Social Security disability law? NOSSCR has a packed schedule of both in-person and virtual events to keep you informed and connected. Many member events are free, but registration is required so that you can receive the unique meeting link. Please be sure to register as least one hour prior to the scheduled event.

Virtual Opportunities at Your Fingertips, All Year Long

Are you looking for professional growth in 2025? NOSSCR offers a variety of virtual events throughout the year focused on sharpening your advocacy skills and building your network, including:

• Webinars: Stay up-to-date on the latest legal developments, practice management strategies, and more from the comfort of your home or office through our live and on-demand continuing education webinars.
  • Join us TODAY, February 27, at 1pm Eastern for a Litigation Update — free to attend, but registration is required.
  • Don’t forget to register for our PAC Washington Webinar, taking place March 10 at 4pm, for your chance to meet our new Senior Political Advisor, Drew Ferguson, ask him questions, and get actionable information. The event is free for members, but registration is required.
• Virtual Circuit Meetings: Connect with colleagues and NOSSCR leaders in your region to discuss regional issues and trends.
  • If you’re in the Third, Seventh, or Eighth Circuits, your Circuit meetings are coming up in March. Don’t forget to register!
• NextGen Virtual Coffee Breaks: These informal online gatherings are great for newer practitioners to network and share experiences.
  • Our next gathering is March 10 at 1pm Eastern — free to attend, but registration is required.

Check the NOSSCR events calendar for a complete list of upcoming virtual events and registration details. Subscribe to our calendar to make sure you don’t miss out!

Don’t forget these other exciting events:

• Spring into Action in D.C.: Our Spring 2025 National Conference is just around the corner! Join us in Washington, D.C., from April 23-26, 2025, at the Grand Hyatt Washington. This is your chance to:
  • Deepen your knowledge: Attend cutting-edge continuing education sessions presented by leaders in Social Security disability law and policy.
  • Network with colleagues: Connect with fellow advocates from across the country, share best practices, and build lasting relationships.
  • Make your voice heard: Participate in a powerful advocacy day on Capitol Hill, addressing critical issues impacting the Social Security disability community.
  • Registration is now open! Visit the NOSSCR Conference website for details and to secure your spot, in-person or virtually.

• NOSSCR Supreme Court Group Admission: Limited to 50 attendees, this exclusive event on June 18, 2025, offers a unique opportunity to be admitted to the Supreme Court bar with your NOSSCR colleagues. Applications are now being accepted. Check out the detailed instructions here.

We hope to see you at an upcoming event!

Recent Cases of Interest

Tom Krause, NOSSCR Litigation Director

Below are short summaries of several recent cases. More detailed explanations are available in the downloadable document at the bottom of the list.

1. Da Costa v. O’Malley, 740 F. Supp.3d 388 (S.D.N.Y. 2024): The court upheld an ALJ’s determination that a claimant failed to establish a valid common law marriage under Pennsylvania law necessary for widow’s benefits, finding no express agreement made in a state recognizing common law marriage and insufficient evidence of a broad reputation of marriage despite continuous cohabitation.

2. Ginder v. Comm’r of Soc. Sec., No. 24-2098, 2025 WL 323095 (3d Cir. Jan. 29, 2025): The Third Circuit vacated and remanded the district court’s order, finding that the ALJ failed to adequately explain the basis for determining the claimant could perform light work, particularly regarding her ability to stand or walk for the majority of an eight-hour workday.

3. Mojica v. King, No. SA-24-CV-00143-ESC, 2025 WL 271573 (W.D. Tex. Jan. 21, 2025): The district court vacated and remanded the Commissioner’s decision, holding that the ALJ committed prejudicial error by failing to conduct proper supportability and consistency analyses of the examining physician’s mental RFC opinion and failing to properly evaluate the consistency of the state agency medical consultants’ opinions.

4. Lopez v. O’Malley, No. 23-60844-CIV, 2024 WL 4881025 (S.D. Fla. Sept. 30, 2024): The court granted partial summary judgment to the claimant and remanded the case after finding the ALJ erred by refusing to consider the claimant’s objections and rebuttal evidence to vocational expert testimony, constituting non-harmless error.

5. N.S. v. Comm’r of Soc. Sec., 742 F. Supp. 3d 1338 (M.D. Ga. 2024): Following remand, the court granted the claimant’s motion for attorney fees under the Equal Access to Justice Act, finding the time spent reviewing the transcript (13 hours) and drafting the brief (33.8 hours) reasonable and awarding $17,105.19 to be paid directly to the plaintiff under the Anti-Assignment Act.

6. Marian H. v. Dudek, No. 24-CV-28-KSC, 2025 WL 546368 (S.D. Cal. Feb. 19, 2025): The court affirmed the Commissioner’s decision, holding that the ALJ correctly applied the revised Listing 1.15 rather than superseded Listing 1.04 to the claimant’s pending case, concluding that applying new regulatory listings to pending claims does not constitute impermissible retroactivity under Supreme Court precedent.

7. Rodney Edward G. v. O’Malley, 743 F. Supp. 3d 653 (E.D. Pa. 2024): The district court remanded the Commissioner’s denial of benefits upon finding that the ALJ failed to properly evaluate the treating psychiatrist’s and therapist’s opinion under 20 C.F.R. §§ 404.1520c(b)(2) and 416.920c(b)(2) by neglecting to analyze consistency with other evidence and by incorrectly characterizing severe mental health symptoms as “generally mild to moderate.”

Legislative Spotlight

Betsy Rosecan, NOSSCR Government Relations Director

On February 19, 2025, Senator Eric Schmitt (R-MO) introduced S. 627, the Ensuring Nationwide Access to Better Life Experience (ENABLE) Act. This legislation has seven Republican cosponsors and six Democratic cosponsors. S. 627 was referred to the Senate Committee on Finance, where it is awaiting further action. A companion bill has not yet been introduced in the House of Representatives.

S. 627 seeks to improve long-term financial security for individuals with disabilities and their families. Specifically, the legislation would make permanent the following three provisions related to Achieving a Better Life Experience (ABLE) accounts that are set to expire this year: ABLE to Work, ABLE Saver’s Credit, and 529 to ABLE rollovers.

The ABLE to Work provision allows an individual with a disability who is employed to contribute an additional amount to his or her ABLE account. This additional contribution cannot be greater than either: A) the prior year’s federal poverty level for a one-person household ($15,060 in 2024), or B) the beneficiary’s yearly compensation. The ABLE Saver’s Credit allows an individual with a disability who makes qualified contributions to their ABLE account to qualify for a non-refundable saver’s credit of up to $1,000. Finally, the 529 to ABLE rollover allows an individual with a disability to rollover funds from a 529 education savings account to an ABLE account that are less than or equal to the annual ABLE contribution limit.

NOSSCR supports this legislation, which passed the Senate in the 118^th Congress but did not pass the House.

The full bill text is not yet available but will be published here when it becomes available.

Hill Advocacy with our Allies

This month, NOSSCR’s Senior Counsel, Jennifer Cronenberg, joined the other Consortium for Constituents with Disabilities‘ (CCD) Social Security Task Force (SSTF) Co-Chairs on a round of Hill visits, emphasizing the importance of protecting SSI, keeping field office locations open and properly staffed, and ensuring that the institutional knowledge that is housed in regional offices is protected. While there is much on Capitol Hill that is currently uncertain, they had several productive conversations and established contacts with staff from multiple representatives’ offices. NOSSCR seeks to continually build relationships on the Hill to ensure meaningful oversight of the Social Security administration, proper funding of the agency, and intervention and correction when agency systems are not functioning properly. Our positive relationships with other stakeholders, like the CCD, enables us to amplify the needs of our members and your clients.

Krause Chronicles: SSA’s Non-Acquiescence Policy

Tom Krause, NOSSCR Litigation Director

In the early 1980s, the Social Security Administration’s policy of non-acquiescence – its systematic practice of refusing to follow adverse circuit court decisions beyond the immediate litigating parties – precipitated an unprecedented administrative law crisis. The policy drew intense judicial condemnation and sparked extraordinary resistance from within the Department of Justice.[1]

A pivotal moment of institutional resistance emerged when Rudolph W. (Rudy) Giuliani, then-U.S. Attorney for the Southern District of New York, refused to defend certain Social Security appeals that contravened Second Circuit precedent. In a series of internal memoranda to the Department of Justice, Giuliani emphasized that his office’s obligation to uphold constitutional principles superseded its duty of agency advocacy.[2] This unprecedented refusal by a United States Attorney to advance his client agency’s litigation position highlighted the gravity of SSA’s constitutional overreach.[3]

The federal judiciary’s response was equally extraordinary. In the Stieberger case,[4] the court confronted what it termed “defiance of judicial authority by a federal agency on a systematic scale,” threatening contempt sanctions against the Secretary. This judicial resistance intensified in Hillhouse v. Harris, where the court issued explicit warnings of personal contempt sanctions against agency officials, marking an unprecedented escalation in the judiciary’s response to continued non-acquiescence.[5]

The Eighth Circuit later amplified these warnings in the Hutchison case,[6] explicitly rejecting SSA’s argument that it could disregard circuit precedent and warning of personal sanctions against the Commissioner. By 1997, in Rogers,[7] the circuit characterized SSA’s continued non-acquiescence as “perilously close” to contempt.

Faced with this unified judicial opposition and internal resistance from its own counsel, SSA ultimately reformed its practices. The agency established a formal system of Acquiescence Rulings (ARs), implementing circuit-specific compliance procedures and enhanced oversight mechanisms. See 20 C.F.R. § 404.985. The agency now issues Acquiescence Rulings (ARs) in response to certain court decisions. These rulings instruct SSA components on how to apply a court’s decision within the relevant circuit, thereby acknowledging the court’s interpretation while maintaining the agency’s broader policy objectives. SSA retains discretion over which decisions to apply more broadly.

Practice Tip: Best practice generally is not to cite court cases to an ALJ or the Appeal Council. If there is a particularly helpful circuit court case without an Acquiescence Ruling, assert it is consistent with SSA policy. The regulations state SSA will release an Acquiescence Ruling with 120 days of the court’s decision.[8] If there is no Acquiescence Ruling, the decision must be consistent with SSA policy.

   [1]   See Stieberger v. Bowen, 801 F.2d 29, 33 (2d Cir. 1986) (characterizing the policy as raising “exceptional circumstances” in federal litigation).

   [2]   The Stiebergerdecision references a June 25, 1984, letter from the United States Attorney for the Southern District of New York to Chief Judge Motley stating:

It is our view that this policy, whatever it does permit, surely does not allow the United States Attorney’s Office, HHS, or any other federal agency to refuse to follow clear rules of law decided by the United States Court of Appeals … [T]here has never been any support to my knowledge for the notion that federal agencies within a particular Circuit could disagree with and refuse to follow clear rulings of that Circuit. We have not defended cases in the past by disregarding the law of this Circuit and will not do so in the future.).

Stieberger v. Heckler, 615 F. Supp. 1315, 1354 (S.D.N.Y. 1985), vacated sub nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986). Rudy Giuliani was the U.S. Attorney for the Southern District of New York from June 3, 1983 – January 1, 1989. Wikipedia, Rudy Giuliani (last accessed February 7, 2025).

   [3]   See City of New York v. Heckler, 578 F. Supp. 1109, 1119 (E.D.N.Y.), aff’d, 742 F.2d 729 (2d Cir. 1984) (noting the “exceptional circumstances” of U.S. Attorney’s position).

   [4]   Stieberger v. Heckler, 615 F. Supp. 1315, 1343 (S.D.N.Y. 1985), vacated sub nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986).

   [5]   Hillhouse v. Harris, 715 F.2d 428, 430 (8th Cir. 1983). In a concurring opinion, Judge Theodore McMillian wrote:

While I concur wholly in everything said in the majority opinion, I think more is needed to be expressed. I have no wish to invite a confrontation with the Secretary. Yet, if the Secretary persists in pursuing her nonacquiescence in this circuit’s decisions, I will seek to bring contempt proceedings against the Secretary both in her official and individual capacities.

Hillhouse, 715 F.2d at 430 (McMillian, J., conc).

   [6]   Hutchison for Hutchison v. Chater, 99 F.3d 286, 287–88 (8th Cir. 1996).

   [7]   Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997).

   [8]   20 C.F.R. § 404.985(b)(1).

Register Now! NOSSCR’s 2025 Spring National Conference in Washington, D.C.!

Join us April 23-26, 2025, at the Grand Hyatt Washington for an event packed with invaluable opportunities to enhance your skills, expand your professional network, and advocate for meaningful change. Our room block is filling FAST, so don’t delay — register today!

Here’s what you can look forward to:

Expand Your Expertise
Participate in a wide range of continuing education sessions, covering the latest developments in Social Security disability law, policy, and practice. Gain insights and strategies to better serve your clients and advance your practice.

Network with Peers
Connect with fellow advocates from across the country. Share best practices, discuss challenges, and build relationships that will last beyond the conference.

Advocate on Capitol Hill
Be part of a full day dedicated to advocacy on Capitol Hill. Join NOSSCR in making your voice heard on critical issues that impact the Social Security disability community.

Virtual Attendance Option Available
Can’t make it to D.C.? We’ve got you covered with a fully virtual option. Participate in sessions and earn continuing education credits from the comfort of your home or office.

Important Note:
In-person attendance is capped at 750 participants due to venue capacity. Secure your spot early to ensure you can join us in Washington, D.C. Once we reach capacity, only virtual registration will be available.

Conference Details:

• Dates: April 23-26, 2025
• Location: Grand Hyatt Washington, 1000 H Street NW, Washington, D.C.

Don’t miss this unique opportunity to learn, connect, and advocate. Register today and be part of a conference that empowers and inspires!

Think Getting a Remand Is Tough? Try Getting Paid

Adriana M. de la Torre, Sustaining NOSSCR Member, Co-founder Tower Law Group

Winning a Social Security disability remand is one thing, but getting paid for your work is another battle entirely. The Eleventh Circuit’s recent decision in Smith v. Commissioner of Social Security (Jan. 22, 2025) underscores how challenging it can be to secure attorney’s fees under the Equal Access to Justice Act (EAJA). But challenging doesn’t mean impossible.

The Background

Smith and Ackerman, successful plaintiffs in Social Security cases, secured remands at the district court level. As prevailing parties, they applied for EAJA attorney’s fees, submitting detailed timesheets. The Commissioner didn’t oppose their requests, but the district court flagged certain entries as block-billed and imposed a 40% reduction on those entries.

The Eleventh Circuit’s Take

Block billing, where multiple tasks are grouped under a single time entry, can sometimes raise concerns in fee petitions. The Eleventh Circuit acknowledged this but also emphasized that reductions must be justified. For example, one of Smith’s time entries read:

“Continue reviewing administrative record, conduct research, continue drafting arguments.”

The court found that such entries made it “impossible to determine the amount of time counsel spent on each of the specific tasks mentioned.” But here’s the problem: legal work in Social Security disability cases doesn’t happen in neatly separated blocks.

Research, record review, and drafting are not distinct, linear steps, they happen simultaneously and continuously. An attorney doesn’t first review a file, then research, and then draft in rigid stages. Instead, these tasks naturally overlap: reviewing a record prompts legal research, which informs the drafting, which may send the attorney back to review the record again.

Forcing attorneys to artificially separate these interconnected tasks into rigid time blocks misunderstands the nature of legal work in Social Security litigation. The focus should be on the reasonableness of the overall time spent, not on whether a particular time entry isolates each microtask.

However, the bigger issue was the district court’s 40% across-the-board reduction of block-billed entries. Rather than evaluating individual entries, the court imposed an arbitrary cut. The Eleventh Circuit found this problematic and emphasized:

“A district court must do more than eyeball the request and if it seems excessive cut it down by an arbitrary percentage.” (Johnston v. Borders, 36 F.4th 1254 (11th Cir. 2022)).

In Johnston, the Eleventh Circuit rejected a 33% across-the-board reduction in attorney’s fees because the district court failed to explain why such a percentage was appropriate. The court held that reductions must be based on “concise but clear explanations” rather than rough estimates. The same issue arose in Smith: the district court simply picked 40% with no reasoning behind it. Because there was no clear justification, the Eleventh Circuit vacated and remanded the fee determination.

Practitioner’s Insights

Winning a disability case is only part of the battle. Proper compensation is equally crucial. This case serves as a reminder to:

• Push back on unrealistic expectations, legal work doesn’t happen in isolated chunks.
• Provide enough detail in billing entries to demonstrate reasonableness, but don’t let courts force an artificial breakdown of legal work.
• Challenge arbitrary reductions. Courts must provide clear reasoning, not rough estimates. If a court applies a blanket cut, cite Smith and Johnston in response.

Got any questions? Write me at disability@towerlawgroup.com. I’m here to help. It’s a lot to take in, but we’ll get through it together. After all, navigating these waters is always easier when you’ve got someone to chat with.

Smith v. Commissioner of Social Security (Jan. 22, 2025) was litigated by NOSSCR sustaining member Heather Freeman.

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.

Senators Express Concerns; Congressman Calls for Hearing

On February 19, Senators Wyden, Schumer, Murray, Baldwin, and Sanders penned a letter to Acting Commissioner Dudek expressing concerns about DOGE “access to the agency’s most sensitive data without proper documentation.” The Senators laid out several detailed questions for the Acting Commissioner. Read the full letter below.

On February 21, House Ways and Means Ranking Member Larson sent a letter to Subcommittee Chair Ron Estes “requesting an immediate hearing to investigate ‘DOGE’ developments at the Social Security Administration (SSA).” Read the full letter below.

Call for Nominations: NOSSCR Awards

NOSSCR is seeking nominations for the following prestigious awards:

• Eileen P. Sweeney Distinguished Service Award: This award recognizes an individual who has made outstanding contributions to the field of Social Security disability advocacy through their dedication, leadership, and commitment to serving the needs of claimants.
• Nancy G. Shor Leadership Award: This award honors an emerging leader in the field of Social Security disability advocacy who has demonstrated exceptional potential and a passion for advancing the rights and interests of claimants.

Eligibility:

• Eileen P. Sweeney Distinguished Service Award: Nominees must have a demonstrated history of exceptional service to the organization and the disability community.
• Nancy G. Shor Leadership Award: Nominees must have demonstrated exceptional leadership and a commitment to advancing the rights and interests of claimants.

Nomination Process:

• Submit a nomination: The nomination form can be found on the NOSSCR website at https://nosscr.org/awards-and-scholarships/.
• Nominations are accepted on a rolling basis.

Selection Process:

• Committee review: The Awards and Scholarships Committee will review all nominations.
• Awards may not be given at each conference or each year.

Social Security Advisory Board Releases Paper and Annual Report

This month, the Social Security Advisory Board (SSAB) released a paper on Social Security benefits for peopled aged 62 to full retirement age.

Using Health and Retirement Study data, the report examines receipt of benefits by adults between age 62 and full retirement age who report a health problem that limits work and found:

• About 32 percent report receiving DI benefits and another eight percent report applying for DI benefits.
• About 26 percent report receiving Old-Age and Survivors Insurance benefits (and not receiving or applying for DI).
• About 11 percent report applying for or receiving SSI alone or concurrently with other Social Security benefits.

Read and download the full paper below.

The SSAB also released their Fiscal Year 2024 Annual Report, summarizing their work for the year. The full report can be read and downloaded below.

2025 Rudolph Patterson Scholarship Nominations Due TOMORROW

NOSSCR is pleased to announce a new format for the prestigious Rudolph Patterson Scholarship. This year, we’re providing access to valuable continuing legal education for Social Security disability advocates across the country.

What’s New?

The 2025 Rudolph Patterson Scholarship will provide at least five (5) individuals with an all-access pass to NOSSCR’s live virtual continuing education (CE) webinars for one full year. This incredible opportunity allows recipients to stay at the forefront of Social Security disability law and advocacy, enhancing their knowledge and skills to better serve their clients.

Scholarship Benefits:

• Unlimited access: Attend all of NOSSCR’s live virtual CLE webinars throughout the year, covering a wide range of critical topics and have access to video replays.
• Stay up-to-date: Learn from leading experts in the field on the latest case law, regulations, and advocacy strategies.
• Enhance your expertise: Gain valuable insights and practical knowledge to strengthen your representation of Social Security disability claimants.

Eligibility:

• Passion for Social Security disability law: Demonstrate a strong interest in advocating for the rights of individuals with disabilities.
• Commitment to professional development: Show a dedication to continuing your education and enhancing your advocacy skills.
• Financial need: Preference may be given to applicants who demonstrate financial need.

Nomination Process:

• To nominate yourself or someone else, email nosscr@nosscr.org with a brief description of the need and a brief profile of the legal services or other program. Please feel free to include any other information you believe to be helpful.

Deadline:

• Please submit all nominations no later than February 28, 2025. Any nominations received after that date will not be considered.

Selection Process:

• The NOSSCR Awards and Scholarships Committee will review all applications and select the scholarship recipients.
• The recipients will be announced on the NOSSCR website and social media channels.

Don’t miss this chance to advance your career or the career of a colleague in Social Security disability advocacy!

NOSSCR Comments on Agency Information Collection Activities

NOSSCR continues to actively monitor all of Social Security’s regulatory activities in the Federal Register. While many postings are simply minor revisions of existing forms, or changes estimates to the agency’s burden in collecting certain required information, NOSSCR views these comment opportunities as a chance to advance our agenda and share, in writing, the concerns of our members. This month, NOSSCR submitted comments on topics ranging from the time it takes to complete a work activity report, the inconsistent language on the waiver of right to appear at a hearing form, the importance of guaranteeing a safe and secure login portal for representatives while ensuring that representatives’ staff can easily access the same digital information, and the value in providing the Disability Determination Explanation (DDE) to representatives and claimants as soon as the decision is rendered. Take a look at our comments below, and feel free to reach out if you would like more information about how you can review and comment on future agency proposals.

PAC Contributor List

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS

As of February 2025

Daily Dose of Data from SSA

This month’s data highlight was the release of the 2024 Waterfall Charts. As we noted in our member monthly email, these charts (copied and downloadable below) offer insight into trends in disability determinations and Continuing Disability Redeterminations (CDRs).

While Initial and Reconsideration allowances remained relatively steady compared to previous years, one notable shift occurred at the Administrative Law Judge (ALJ) hearing level. In 2024, the ALJ allowance rate rose to 51%, up from 45% in 2023. This increase suggests a higher percentage of claimants successfully proving their cases at the hearing stage.

Additionally, both Appeals Council and Federal Court remand rates saw slight increases, reinforcing ongoing concerns about SSA’s ability to provide accurate and timely decisions at the earlier stages of the process. These trends highlight the critical need for continued advocacy to ensure fair and efficient adjudication for disability claimants.

This month also saw the publication of Actuarial Note No. 164, Totalization Agreements and Totalized Benefits.

Useful Resources