Dispatches from Camp: Updates from the CEO

David Camp, NOSSCR CEO and General Counsel

As we look ahead to the likely soon-to-be-confirmed Commissioner of Social Security Frank Bisignano, I want to share with you my observations and what I expect will be his approach related to our mission.

When I met with Commissioner-Nominee Bisignano on February 25th at Fiserv headquarters, we talked about the issues raised by various Senators—including some critical to our agenda, such as ending reliance on the DOT. But, it was when I gave him our arguments about the need to reprogram the way the agency obtains health data—transitioning from a system that bakes in delay, cost, mail, paper, and TIFF images, to one that enables the agency to immediately and cheaply obtain health data—that I saw real engagement. The topic of saving money, time, and increasing accuracy through better use of data seemed to really resonate. “Now I want the job tomorrow.”

So far, that’s the Frank Bisignano I know. He seems open to ideas and excited about bringing his experience to Social Security. While it’s true that NOSSCR’s current talking points aren’t the same as they were last year, and they may be different still next year, we have to seize the current moment to gain what we can where we can. The political realities are what they are, but that doesn’t mean there isn’t progress to be made, dials to be turned, advances that can benefit our practice and our claimants. As a membership organization of claimants’ representatives, we are uniquely positioned to appreciate the full scale of Social Security’s customer service and due process failures. No, we don’t consider them particularly accurate in their decisions. Nor do we believe that SSA has made every payment on time for 90 years (apologies to the politicians)—they make payments to our clients and to us years too late. We sit on hold, experience the “polite disconnect” (yes, that’s the SSA term), review initial denials ignoring non-exertional impairments, collect evidence by paper that is offered to SSA digitally, and endure “testimony” about numbers of jobs that haven’t existed since 1970. We talk to claimants more than SSA does. We hear them cry, we know their stories, and we get the hug when they win.

For now, we need to take full advantage of the nominee’s openness to our descriptions of the failures of Social Security—in areas small and large. I have delivered NOSSCR’s message and the story of representatives to hundreds of powerful people in SSA and on Capitol Hill. Very few lean in, but Bisignano did. And that’s why NOSSCR is taking the inside path in this trying time. We know things aren’t perfect. As individual representatives, we are frustrated and worried right along with you. But as your organization, your voice on the inside, we’ll stay in the room and pick our battles because we need to protect our practice area and our clients. We’ll remain in the conversation because SSA and the Commissioner-Nominee need our expertise, our lived experience, and our passion. There are highly capable advocacy groups raising the alarm right now over issues of serious concern—they are our friends and allies, and we support the diligent and necessary work that they are currently undertaking. But there are no other groups like ours that can help every agency component see their mission through the experiences of their customers. SSA wants our help, as does the nominee, and so they’ll get it.

This brings me to a leading item on the commissioner-to-be’s agenda—the use of AI to assist disability examiners, judges, and all SSA staff (including those in the call centers). During his confirmation hearing testimony on March 25th, Bisignano described the possibility of AI revealing better answers for SSA’s call center staff. SSA already uses a variety of AI and AI-related tools such as Imagen to analyze their massive data sets or flag possible listings for disability examiners. In coming years, I expect the adoption of AI to drive disability policy change as much as it improves operations. NOSSCR must play a lead role in guiding SSA through this adoption, without degrading due process and the basic principle of “reviewability.” Humans must make the final decisions, and there must be a way to consider a record on appeal.

My recent activity has included launching NOSSCR as a leading voice on these topics. Along with Jen Burdick, Henry Claypool, and Tracey Gronniger, I am a co-chair of the National Academy of Social Insurance’s “Task Force on AI, Emerging Tech & Disability Benefits.” Building on excellent work done by principal investigators Chantel Boyens and Jack Smalligan, we’ve produced a report outlining principles and guardrails that will help SSA in the years to come. The report will survey what’s been learned from other use cases, programs, and sectors. The final report should be ready very soon, and we will share it widely. Perhaps more important, we’re already working productively with SSA on how to maintain an open and collaborative permanent engagement—with external stakeholders helping and holding SSA accountable.

On April 3, from 10:30am to 2:30pm ET, Social Security is hosting a stakeholder forum (online and in person): “Safeguarding Success: Protecting Our Programs in a Digital Age.” I’ll be joined by Acting Commissioner Dudek, Chad Bungard and Adam Schneider of SSA’s OIG, Dan Chenok from IBM, Tracey Gronniger from Justice in Aging, Jack Smalligan from Urban Institute, and Wes Turbeville from ID.me. You can register to attend in person or virtually here (registration deadline in Monday March 31st). Our focus will be on “addressing fraud, waste, and abuse in the digital age” with particular attention to the effects of AI. I hope you can attend.

As always, it is a privilege to serve as your professional association’s CEO. Thank you for your membership.

President’s Corner

Paul Burkhalter, NOSSCR President

The Traveler and the Mirage

To say that these are interesting times would be the understatement of the year. It appears that through a coalition of advocates (and not a single voice) we have avoided a burdensome requirement that disability applicants would be required to appear at the local SSA field office to prove their identity. I want to thank all our allies and colleagues who raised our shared concerns to SSA and helped avoid this troubling proposal.

Recently, a good friend and fellow Social Security disability attorney emailed me the “distracted boyfriend meme” poking fun at all the craziness and apparent rivals we now have in our space. This reminded me of a very ancient story:

There was once a traveler named Rep, who embarked on a long journey with his trusted companion, Nasser. They had walked miles together, facing hardships, crossing deserts, and enduring storms. Nasser had always been by Rep’s side—offering wisdom, guidance, and unwavering support.

One day, as they were nearing their destination, Rep saw a golden city shimmering in the distance. It radiated beauty and promises of wealth beyond imagination. He thought he could see in the distance a great party, attended by former kings and princes, with magicians and dancing girls. Drawn by the sight and noise, he hesitated.

Nasser tugged at his sleeve, “We must stay on course. This is not where we need to be.”

But Rep, enchanted by the golden mirage and sounds, ignored her warnings, and ran toward it. The closer he got, the more it seemed to fade, until he realized—it was just an illusion, a trick of the sun and wind on the desert sand. By the time he turned back, Nasser was gone.

Alone and regretful, Rep wandered for days before he found his path again. But without Nasser’s guidance, the journey was harder, lonelier. He had lost what truly mattered, all because he was tempted by an illusion.

The end.

I am aware that there are lot of stories out there, and misguided sources are spreading tales about NOSSCR that are not based in truth or done in goodwill. In the next few months, we will be correcting those stories and setting the record straight.

Let us all stay were we need to be and not get distracted in these troubling times.

Stay tuned.

A Closer Look with the Congressman

Drew Ferguson, NOSSCR Senior Political Advisor and Former Representative of Georgia

Thank you to everyone who joined me for the PAC Washington Webinar on March 10th, where I shared my perspective on NOSSCR’s advocacy vision for this new administration. If you missed the Washington Webinar, join me at the Washington, DC national conference PAC Reception on Thursday, April 24, open to all NOSSCR PAC donors. I’ll speak during the Conference General Session alongside Chairman Earl Pomeroy (D-ND), who previously chaired the same Ways and Means Social Security committee as I did.

As we discussed during the webinar, a voice of reason is crucial for addressing Social Security’s challenges. NOSSCR is that voice. My experience as Chairman of the Social Security Subcommittee gives me a practical understanding of Social Security’s complexities, allowing for productive discussions with key decision-makers on Capitol Hill.

I emphasized the need for greater transparency, efficient customer service, and modernized IT at the Social Security Administration. We must move beyond outdated systems and embrace technology that improves communication and effectiveness. Your firsthand experiences, like delays at initial and reconsideration, long phone hold times, and limited access to electronically available information, are invaluable in advocating for these changes.

I also outlined a practical advocacy roadmap. Direct meetings with elected officials are highly effective—and NOSSCR PAC dollars are key. We should prioritize bipartisan solutions that deliver tangible improvements. I urge you to approach advocacy as partners, focusing on results, and not as adversaries, even when we disagree on policy. This means avoiding any focus on partisan or peripheral bills with little chance of success—we must work together across the aisle and emphasize solutions.

Remember, leadership transitions bring pendulum swings. This one is no different. Once the dust settles, you’ll find the swing wasn’t as drastic as initially perceived. NOSSCR will navigate this transition as it always has: through consistent, bipartisan, common-sense advocacy that drives practical results.

Contributions to the National Organization of Social Security Claimants’ Representatives PAC (NOSSCR PAC) are not tax-deductible as a charitable contribution for federal income tax purposes. Contributions to NOSSCR PAC will be used to support federal and state candidates, political parties, and other political committees. Contributions are strictly voluntary. You may refuse to contribute without reprisal. Any proposed contribution level is merely a suggestion, and you are free to contribute more or less than suggested. You will not benefit or be disadvantaged by reason of the amount of your contribution or a decision not to contribute. Federal law requires NOSSCR PAC to use its best efforts to collect and report the name, mailing address, occupation and employer of persons whose contributions exceed $200 in a calendar year. You must be a U.S. citizen or lawfully admitted for permanent residence in the U.S. to contribute.

Register Now! NOSSCR’s 2025 Spring National Conference in Washington, DC!

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 closes TOMORROW, 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. View our tentative agenda here!

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. Don’t forget to join us on Thursday night for the Scully Dinner! (To add the Scully Dinner to your registration navigate to the “My Participation” tab in your profile, view your registration, click “edit registration”, scroll down to the Program section, and add the Scully Dinner to your registration. Then, proceed to checkout. Cost and location for this event will be provided on the registration page, and in your confirmation email).

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. Now, more than even, your voice matters! We will provide training and will schedule the meetings for you, but you must register in advance — find out more in our FAQ!

Virtual Attendance Option Available
Can’t make it to DC? 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, DC. 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, DC

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

Medical Records Copying Fees Update: VA and DC

While NOSSCR continues to advocate for nationwide sweeping changes to the way Social Security receives heath data, we also encourage our members to continue advocating for changes on the ground in your state. Sustaining Member Joanna Suyes did just that. In her position as President of the Virginia Trial Lawyers Association, she asked their legislative team to put in a bill to amend Virginia’s medical records bill 8.01-413 to eliminate charges for medical records for people trying to get SSDI, SSI, VA benefits, Medicare and Medicaid. We are extremely pleased to announce that the Governor signed the amended version of the bill on Saturday and the changes take effect July 1, 2025. Here’s a look at the added language and a link to the full bill (also available in PDF form below):

B7. A health care provider shall provide one free copy of a patient’s medical records stored or maintained in an electronic health record (EHR) per calendar year if requested by a patient or his attorney for the purpose of supporting a claim or appeal under Title II, XVI, XVIII, or XIX of the Social Security Act, 38 U.S.C. § 101 et seq., or under any federal or state financial needs-based benefit program, provided that the request is supported by a reasonable amount of documentation, including evidence of representation in the Social Security disability courts such as the Social Security Administration Appointment of Representative form or a notice of or request for a hearing, regarding such purpose. Any additional requests for medical records in the same calendar year are subject to a reasonable fee for the production of the records. No fees shall be charged if no medical records are found in response to the request.

Way to go, Joanna!

Also this month, after direct conversations with NOSSCR, DC Council Chairman Phil Mendelson introduced a bill that would exempt individuals and their representatives from having to pay medical record fees if the copies will be used to support a claim or appeal under any provision of the Social Security Act or for any other federal or District needs-based benefit or program. The bill was referred to Committee on March 18th, and we will be watching it’s progress closely (proposed language available for download below).

While not the sweeping national reform that we ultimately want, these impactful state-level changes will meaningfully benefit the lives of claimants and practitioners in these areas. If your state continues to have unfavorable laws, we encourage your to talk to your elected officials. Use the language of these bills to encourage similar improvements in your state. And please reach out to NOSSCR if you have questions or need additional support.

Krause Chronicles: The Treating Physician Rule

Tom Krause, NOSSCR Of-Counsel

A Historical Perspective for Disability Advocates

(At the end of this article is a link to a more thorough discussion of these early cases and a bibliography)

From Judicial Innovation to Regulatory Standard

Most disability attorneys practicing today are familiar with the rise and fall of the Treating Physician Rule. We’ve adapted our practice to the post-2017 regulatory framework, where the special deference once afforded to treating source opinions has been significantly diminished. But how many of us understand the origins of this critical doctrine? Understanding the historical development of the Treating Physician Rule provides valuable context for today’s advocacy strategies and may offer ammunition for challenging the 2017 changes, given the Supreme Court’s recent Loper Bright decision. See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

The Early Days: Judicial Recognition (1959-1967)

The Treating Physician Rule wasn’t born from regulation; it emerged organically from the federal courts’ interpretation of the substantial evidence standard in the earliest disability cases following the 1956 amendments establishing the disability insurance program.

The Seventh Circuit’s 1959 decision in Teeter v. Flemming, 270 F.2d 871, 874 (7th Cir. 1959), laid the first cornerstone. The court recognized something any practicing attorney would find obvious: doctors who treat patients know more about their conditions than those who merely review papers. The court found that when a referee disregarded treating physicians’ conclusions to form his own medical opinions, the resulting decision lacked substantial evidence.

The following year, Judge Henry Friendly (a judicial giant whose influence extends far beyond Social Security law) reinforced this approach in Kerner v. Flemming, 283 F.2d 916, 921–22 (2d Cir. 1960). While not explicitly articulating a treating physician rule, Judge Friendly implicitly recognized that physicians with an ongoing relationship with their patients possess unique insights that should be accorded significant weight.

By 1962, the Fourth Circuit in Underwood v. Ribicoff, 298 F.2d 850, 851–52 (4th Cir. 1962), had distilled disability evaluation into four essential elements, placing treating physicians’ opinions front and center in the analysis:

1. Objective medical facts from treating or examining physicians
2. Diagnoses and expert medical opinions of treating physicians
3. Subjective evidence of pain and disability
4. The claimant’s educational background, work history, and age

This framework, cited repeatedly in subsequent decisions, explicitly positioned treating physicians’ opinions as a cornerstone of proper disability evaluation. The court recognized that “the expert medical opinion of treating or examining physicians on these subsidiary questions of fact will in most cases be essential in determining… the severity of an objectively determinable physical impairment.” Id. at 851.

Binding Effect: The Rule Takes Shape (1967-1972)

By the late 1960s, courts had moved beyond merely recognizing the importance of treating source opinions to explicitly declaring their binding effect absent substantial contradictory evidence.

In a remarkable example of judicial plain-speaking, the Southern District of Indiana held that “the expert opinions of plaintiff’s treating physicians as to plaintiff’s disability and inability to engage in any substantial, gainful employment are binding upon the referee if not controverted by substantial evidence to the contrary.” Walker v. Gardner, 266 F. Supp. 998, 1002 (S.D. Ind. 1967). The court didn’t mince words—treating physicians’ opinions weren’t merely “important” or deserving of “deference.” They were binding.

The Sixth Circuit was equally unequivocal in Branham v. Gardner, 383 F.2d 614, 630 (6th Cir. 1967), declaring that “the expert opinions of treating physicians as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary.” This statement established that administrative fact-finders couldn’t dismiss treating physicians’ opinions casually.

The rule was reinforced in 1971 when the Sixth Circuit highlighted treating physicians’ unique longitudinal perspective in Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971). The court recognized that physicians who treat patients over time have unique insight, particularly in chronic conditions: “The evidence of physicians who have been treating a patient over a long period and who state that he is totally incapacitated, is substantial evidence as compared with the evidence of physicians who have examined appellant on only one occasion.”

Cementing the Doctrine: Late 1970s Refinements

By the mid-1970s, the Treating Physician Rule had become firmly entrenched in disability jurisprudence. Courts continued to refine and strengthen the doctrine while addressing specific applications.

The Fourth Circuit’s decision in Wyatt v. Weinberger, 519 F.2d 1285, 1289 (4th Cir. 1975) reinforced that treating physicians’ opinions are binding unless contradicted by substantial evidence, cementing the treating physician’s central role in disability adjudication.

Perhaps most significantly, the Second Circuit’s seminal 1978 decision in Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978), articulated the enduring formulation of the rule: “The expert opinions of a treating physician as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary.” The court explained that treating physicians’ opinions deserve special weight because they reflect “an expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.”

The Bastien court also emphasized a crucial point for advocates to remember: when the record lacks contemporaneous medical evidence contradicting a treating physician’s opinions of disability, this represents a “serious deficiency in the record.” Id. at 912. This observation remains relevant today in challenging inadequately developed records.

Practical Lessons for Today’s Advocates

What can disability attorneys learn from this historical perspective?

First, the Treating Physician Rule wasn’t a regulatory invention but a judicial doctrine that emerged organically from the courts’ interpretation of the substantial evidence standard. It represented the courts’ common-sense recognition that physicians with ongoing treatment relationships possess unique, valuable insights.

Second, the judicial origins of the rule may provide ammunition for challenging the 2017 regulatory changes given the Supreme Court’s recent Loper Bright decision overturning Chevron deference. Courts originally created the rule to interpret what constitutes “substantial evidence” under 42 U.S.C. § 405(g). In that case, they may reassert their authority to interpret that statutory standard in the post-Chevron era.

Finally, the Treating Physician Rule’s principles remain persuasive even under current regulations. While treating source opinions no longer receive automatic preference, well-supported arguments emphasizing the longitudinal perspective and clinical insights of treating sources—the very factors courts recognized decades ago—can still carry significant weight.

The Treating Physician Rule’s rich judicial history reminds us that sometimes the most enduring legal principles emerge not from legislative mandates or regulatory pronouncements but courts recognizing fundamental truths about how evidence should be evaluated. Those truths haven’t changed—even if the regulations have.

Bibliography

Soc. Sec. Admin., Annual Statistical Report on the Social Security Disability Insurance Program (2017) (www.ssa.gov/policy/docs/statcomps/di_asr/2017/di_asr17.pdf)

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003)

Charles Terranova, Somebody Call My Doctor: Repeal of the Treating Physician Rule in Social Security Disability Adjudication, 68 Buff. L. Rev. 931, 945 (2020)

Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 Tex. L. Rev. 499, 545 (2011)

James A. Maccaro, The Treating Physician Rule and the Adjudication of Claims for Social Security Disability Benefits, 41 Soc. Security Reporting Service 833 (1993)

Piemonte’s Perspective

George Piemonte, NOSSCR 11th Circuit Board Representative

When the VE offers clearly bogus testimony, for example, the VE says 100,000 people are working as addressers (as defined in the DOT), in your cross-examination, you must ask the VE for the sources of that testimony. But what if the VE says they cannot provide their sources, or the ALJ prevents you from asking for them?

SSR 24-3p requires you to cross-examine the VE during the hearing. The January 2025 version of the VE Handbook on pages 3, 19, 21, 30, 33, and 44 states the VE must be prepared to cite, explain, and furnish any sources they rely on in their testimony.

Biestek v. Berryhill, 139 S.Ct. 1148 (2019) says VE testimony may not be substantial evidence if the VE has no good reason to fail to produce the data and the testimony lacks other markers of reliability. The inability to provide the sources of their testimony would certainly lack markers of reliability.

In its brief in Biestek, the Solicitor General of the United States endorses the 2017 VE Handbook’s statement that VEs “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.”

So, what can you do to deal with this? First, ask the VE if they have read the VE Handbook. If they say no, you could object to them testifying because the Handbook explains their role and responsibilities, which, given they are not prepared to cite, explain, and furnish any sources upon which they relied in their testimony, they are not qualified to testify. The ALJ will likely overrule your objection, but you are making your record for appeal.

If the VE says yes, they have read the VE Handbook, point out that pages 3, 19, 21, 30, 33, and 44 state that they must be prepared to cite, explain, and furnish any sources they rely on in their testimony. Then, ask them why they are not prepared to do so despite SSA giving them that instruction six times in the Handbook. If the ALJ tries to stop you, explain that you are attempting to comply with SSR 24-3p but cannot because the VE has failed to follow the instructions given in the VE Handbook. The ALJ may not let you continue. If not, note your exception on the record that the ALJ is preventing you from complying with SSR 24-3p. Remember, you are making a record for appeal.

You can still ask for the sources and an explanation of how they used them. Ask why they cannot provide them if they won’t.

How many pages are there? What confidential information is included? How many places is it found? Have you ever provided the information to anyone? Who? When?

How did you collect the data? When?

What did you do to verify that the data is correct? Has anyone else verified it?

How did you use the data to come to your testimony?

If the ALJ still bars you from questioning the VE, point out again that you are attempting to comply with SSR 24-3p and that 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) and what sources they relied on to form their opinion would undoubtedly qualify. You can also point out the VE Handbook, Biestek, and the Solicitor General’s statement in its brief in Biestek. If the ALJ still will not let you question the VE, again note your exception on the record and submit a post-hearing brief. This will preserve the issue for appeal.

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.

NOSSCR Membership Webinar: Recent Changes at SSA

Join NOSSCR for a timely webinar tomorrow, where we’ll discuss the latest developments at SSA. If you attended our last webinar, this is an opportunity to learn about new updates and discuss what’s ahead. David Camp and NOSSCR leadership will be present to answer your questions and provide guidance during these uncertain times.

Have questions? Submit them in advance here.

This webinar will not be recorded—we encourage you to attend live. To ensure that this meeting is members-only, you must register prior to the event. To register for this free webinar, your membership must be active, and you must be logged into your account. Once you register, you’ll receive an invitation with the meeting link.

When: March 28th 2025, at 3:00 PM ET
Where: Online

We hope to see you there!

A Fifth Circuit Decision Clarifying Borderline Age

Jennifer Cronenberg, Senior Counsel and Director of Legal Information

On March 3, 2025, the Fifth Circuit Court of Appeals published their decision in Mitchell v. Dudek, finding that the claimant, who was 5 months shy of his 55th birthday at his onset date, did not qualify for the agency’s “borderline age” rules.

20 C.F.R. §404.1563 articulates the agency’s “borderline age” policy:

We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.

POMS DI 25015.006 clarifies this definition, offering:

If a claimant is within a few days to a few months of reaching a higher age category and using their chronological age results in a denial, then, after you evaluate all factors (i.e., residual functional capacity (RFC), age, education, and work experience) in the claim, consider using the higher age category if it results in a favorable determination.

And finally, HALLEX I-2-2-42 notes the following “borderline age” guidance:

SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”) and using the higher age category would result in a determination of decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case.

Based on these definitions, it stands to reason that if a person, at their onset date, would be found disabled were they just a few days or months older, then the “borderline age” rules should apply, and a finding of “disabled,” dating back to their onset date would be appropriate. This was the claimant’s contention in the Mitchell case.

However, both the POMS and the HALLEX offer crucial “notes” that the Court of Appeals in Mitchell latched onto as persuasive.

The above-cited POMS notes:

If using the claimant’s chronological age results in a partially or fully favorable determination, only consider the claimant’s chronological age. This is not a borderline age situation.

Similarly, the above cited HALLEX states:

If using the claimant’s chronological age will result in a favorable decision, an administrative law judge (ALJ) will not use the higher age category solely because it will result in a more favorable onset date, determination, or decision for the claimant. (emphasis added)

Using this additional framework, the Court found that “the ALJ correctly concluded that Mitchell did not present a “borderline situation.” To qualify as such, Mitchell would have needed to be approaching 55 either on the date of adjudication or on his last date insured. He was not. On the date of his adjudication in April 2023, Mitchell had already turned 56. And Mitchell’s date last insured will not occur until December 31, 2026.”

While the timing in this case is not a perfect example (and I personally would rarely, if ever, encourage a claimant to appeal their entire case over 5 months of benefits (especially if ongoing benefits are at play)), I do think there is an interesting question of agency-delay that’s being ignored in the Court’s interpretation of the borderline age policy. Let’s take the facts here where the claimant was 5 months shy of his 55th birthday at his onset date. For the sake of this argument, let’s say that the claim was processed with miraculous speed and the claimant was denied at the initial claim level still 2 months shy of his 55th birthday. Had the IC examiner awarded the claim, she certainly could have used the borderline age criteria as it was “necessary” for the 55-grid-award at the time of the decision. But the IC examiner got the decision wrong. We know this, because ultimately the ALJ did award the case at the claimant’s 55th birthday. But, based on the Court’s logic, because the claimant was already 56 by the time the case got to the ALJ, the ALJ can no longer apply the borderline age rules even though they would have applied had the original decision been made correctly. I don’t love that.

In Mitchell the Court notes that “Mitchell’s reading of the regulation would lead to absurd results. He proposes that ALJs should consider whether a claimant was approaching the next age category on his date of alleged onset of disability. By that logic, however, every claimant who becomes eligible to receive benefits upon reaching a certain age would be entitled to use the “borderline” exception to try to squeeze out a few extra months of benefits. That exception would illogically swallow the rule that “ ‘[a]ge’ means your chronological age.” 20 C.F.R. § 404.1563(a) (2008). That cannot be right.” I’m not sure the Court and I agree about what constitutes “absurd results.”

Mitchell also claimed that the sub-regulatory guidance, defining the timing of the borderline age criteria as being linked to the decision or DLI date alone (and not the onset date), conflicts with the definition of “borderline age” in the regulation. The Court also decided that this is decidedly not so. They found instead that “the HALLEX sensibly clarifies a point in time on which the regulation is silent.” Sub-regulatory guidance is an interesting beast. It can be easily created and eliminated by the agency. When circuit courts build case law based entirely on sub-regulatory language, the lasting impacts of this agency-only language can be felt long after the agency changes its mind about how to interpret the regulations.

Legislative Spotlight

Betsy Rosecan, NOSSCR Government Relations Director

On March 13, 2025, Sen. Ruben Gallego (D-AZ) introduced S. 1023, the Social Security Overpayment Relief Act. The legislation has one cosponsor, Sen. Bill Cassidy (R-LA), and was referred to the Senate Committee on Finance. A companion bill, H.R. 2142, was introduced in the House of Representatives by Rep. Kristen McDonald Rivet (D-MI) on March 14, 2025. The House version of the bill has one cosponsor, Rep. Zach Nunn (R-IA), and was referred to the House Committee on Ways and Means, where it awaits further action.

Currently, the lookback period for Social Security overpayments is indefinite. If enacted, this legislation would limit the lookback period to 10 years from the point at which the Social Security Administration (SSA) detects the overpayment error. This measure would not limit the lookback period for individuals who commit fraud. NOSSCR supports this legislation.

The text of this legislation is not yet available online but will be found here when it becomes available.

CCD’s Social Security Task Force Sends Letter of Concern to Congress

This month, the Consortium for Constituents with Disabilities’ Social Security Task Force (where NOSSCR’s own Jennifer Cronenberg is one of the co-chairs) sent the following letter to Congress expressing concern over recent changes at Social Security. NOSSCR co-signed this letter.

In Case You Missed It

In case you missed it in the onslaught of media surrounding Social Security, this week the agency released a list of agency sources for transparency. We’ve included them below for ease of access.

While vigorous advocacy from multiple advocacy groups has stayed off the implementation Social Security’s previously announced Identity Verification policy, we still advise counseling your claimants to establish mySocialSecurity accounts where possible. Many of your clients and their families may still be impacted by portions of the agency’s ID verification changes. Review the agency’s guidance here:

What to Know about Proving Your Identity: SSA recently announced it is strengthening identity proofing requirements for people who do not use a personal my Social Security account to apply for cash benefits or to change direct deposit information for benefits. To help the public understand the new policy, SSA today published a new webpage, What to Know about Proving Your Identity | SSA.

Under the current leadership, the agency is releasing their weekly internal meetings on YouTube:

Weekly Operational Report Meetings: Acting Commissioner Dudek meets with his senior leadership team throughout the week to tackle a range of challenges facing the agency. During the Weekly Operational Report (WOR) meeting, leaders focus on specific topics, the options presented to the acting commissioner, and the resulting decisions made during these meetings. Beginning March 14, 2025, each WOR is recorded and published to SSA’s YouTube channel. The WOR Playlist is available here: SSA Weekly Operational Report Meetings

The agency also released the following sources of information:

Agency Actions: Acting Commissioner Dudek also published online a summary of select agency challenges, options presented, and the Acting Commissioner’s ultimate decisions. SSA plans to update this page periodically to include notable matters the current Administration is solving. Agency Actions | SSA

National 800 Number Wait Times: The American people do not receive the prompt customer service they deserve when calling the agency’s 800 number. Despite the knowledge, dedication, and experience of SSA’s telephone representatives, customers wait too long to speak with a representative. People deserve to know the wait time challenges they will face if unable to use the agency’s secure and convenient online services. Acting Commissioner Dudek is increasing the level of detail shared with the public to provide an honest and transparent view of wait times. Social Security Performance | SSA and Contact Social Security By Phone

Efficiencies and Cost Avoidance: SSA works closely with the General Services Administration to identify unused and underutilized office space. SSA published its Efficiencies and Cost Avoidance webpage that lists soft-term lease terminations, including an explanation for each location and whether any change affects the public or not. For nearly all locations, the space being terminated is only a small room within the larger Social Security office location.

Workforce Update: SSA identified opportunities to optimize its workforce by offering voluntary opportunities to depart the agency or move to a frontline customer service position. The Workforce Update | News | SSA webpage briefly explains each voluntary option and how many employees accepted that option.

As we advised previously, we encourage you to subscribe to SSA’s Press Release webpage to stay up-to-date on the agency’s latest announcements—and, as always, NOSSCR is here to provide you with any urgent updates and answer any questions you may have.

Last Call for Supreme Court Admission Ceremony Applications!

Any applications for NOSSCR’s Supreme Court Admission Ceremony MUST be received in our office by April 1, 2025 – so if you’re still working on your application, we strongly encourage you to consider expediting the shipping to ensure your application is included!

Held June 18, 2025, this prestigious event provides a rare opportunity to be officially welcomed into one of the most esteemed legal arenas, alongside fellow practitioners.

Before applying, please carefully review the detailed information and instructions provided on our website, linked below, to ensure you meet the requirements and understand the process. A comprehensive Q&A section is also available to address any questions you may have.

Don’t miss this chance to join a select group of legal professionals in this historic event!

NOSSCR Comments on Agency Activities

NOSSCR continues to actively monitor all of Social Security’s regulatory activities in the Federal Register. This month we submitted official comments on the Temporary Final Rule (TFR) allowing flexibility in the “close proximity of time” standard as it applies to the musculoskeletal Listings. Originally, all medical criteria for those Listings had to be documented within a 4-month period. Covid-era changes extended that timeframe to 12 months, and this TFR extends that extension until May 11, 2029 (though this week’s corresponding Emergency Message revision indicates that the agency may revisit this extension prior to that date).

While NOSSCR applauds this extension, we took this opportunity to once again urge the agency to make these changes permanent. As we argue below, the American healthcare system is not currently designed to provide the needed documentation within a 4-month period; thus, if the Listings revert to that standard, the agency will be missing claimants who do clearly meet the Listing-level criteria but who simply aren’t able to obtain the needed documentation fast enough.

NOSSCR also commented this month on the agency’s burden estimate regarding the time required for application submission. We continued our ongoing advocacy for electronic signature improvements. Read our comments 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.

Plans for the White Plains OHO Caseload After Closure

The agency has announced that the White Plains, NY OHO is shutting its doors in May 2025. NOSSCR asked our agency contacts for the exact plans for the White Plains caseload and we received the following detailed information:

Support the SSI Savings Penalty Elimination Act

Our friends over at The Arc have been diligently working to gain bipartisan bicameral support for the reintroduction of the SSI Savings Penalty Elimination Act. Check out the NOSSCR co-signed letter below to learn more about the bill, and urge your elected officials to support its passage!

ACUS Report: EAJA Awards

On March 14, 2025, the Administrative Conference of the United States (ACUS) published their Report to Congress on Equal Access to Justice Act Awards (EAJA) for Fiscal Year 2024. According to the report, the Social Security Administration had the highest number of awards reported (9,593) with the largest total amount reported ($58,075,051.77). Read the full report below (and notice that NOSSCR alum Lea Robbins is one of the principal authors!).

Read the Congressional Research Service’s Social Security Fraud Overview

The words “Social Security” and “fraud” have become increasingly linked over the past few months—in media and other political statements. This week, the Congressional Research Service (CRS) released a report entitled “Social Security Fraud Overview.” CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Read their report below.

NOSSCR’s 2025 Fall National Conference in San Diego–Registration Opens TOMORROW!

NOSSCR’s 2025 Fall Conference is happening September 8-12, 2025, and we want to make sure it’s on your calendar! This conference brings together Social Security disability representatives from across the country for days filled with valuable education, networking, and advocacy opportunities.

Just like our Spring Conference, this event will feature CLE sessions led by experienced professionals, discussions on the latest policy updates, and opportunities to connect with colleagues who understand the challenges and successes of this field—all set against the stunning backdrop of San Diego’s coastline.

If you’re planning to attend, don’t forget to block off these dates when submitting your hearing availability.

Registration opens TOMORROW, Friday March 28 — so don’t delay, make plans to join us today!

SSA Appointed Representative Services (ARS) Email Address Change

The agency has asked us to share with members that the email address for the Appointed Representative Services (ARS) help desk has changed to DCDA.OHO.HQ.ARS@ssa.gov (it used to be OHO.HQ.ARS@ssa.gov). Please update your contact banks and use the new address going forward.

PAC Contributor List

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS

As of March 2025

Daily Dose of Data from SSA

This month, Social Security released the following data:

Monthly Statistical Snapshot, February 2025—A monthly snapshot of statistics on Social Security beneficiaries and Supplemental Security Income recipients.

SSI Monthly Statistics, February 2025—These monthly tables provide statistics for federally administered payments and awards under the Supplemental Security Income (SSI) program.

Useful Resources