Just Ask Jennifer: Presence, Gifts, and Service

Jennifer Cronenberg, Interim CEO

I grew up in the United Methodist Church (stay with me, I promise this isn’t going to a religious place), and when you joined the church, the preacher asked if you would support the church with “your prayers, your presence, your gifts, and your service.” (For any of you non-Methodists, the “correct” answer was “I will”). While prayers aren’t really relevant here at NOSSCR (see! I told you it wouldn’t be religious…though, if you are religious, we’re definitely not opposed to whatever positive energy you may wish to send our way), I think the message of supporting a nonprofit organization to which you are a member with “your presence, your gifts, and your service” is incredibly prudent, and I want to spend a few moments drilling down on what that means for us here at NOSSCR.

Your Presence

If you’ve been around NOSSCR for a while, you’ve likely heard us say countless times that “NOSSCR is a membership organization.” We say this because it’s true. We are, quite literally, nothing without our members. We are here to serve you and to provide the resources, advocacy, community, and education that you need to successfully support your practice so that you can zealously represent your clients.

But, as is often said, “community” doesn’t build itself. It’s created by people who show up, day after day, year after year, even when it’s hard. Your presence matters. Our community here at NOSSCR is varied—we have members from legal services corporations and large nationwide firms, solo practitioners and nonprofits, small and mid-sized firms and members who specialize in other fields, non-attorney representatives and former agency employees, paralegals and office staff and federal court practitioners, gurus with decades of experience and new practitioners hoping to win their first case. Whatever your background or practice type, if you are involved in the representation of Social Security claimants, there is a place for you here at NOSSCR.

We invite you to join us in Baltimore this spring and Salt Lake City in the fall. You are a vital part of this great community, and we can’t wait to see you!

Your Gifts

NOSSCR is a nonprofit organization. We keep the lights on with your membership renewals, conference registrations, and referral service participation. But like any nonprofit organization, we can do more with more. So how can you help?

To help keep NOSSCR operations running smoothly, consider sponsoring or exhibiting one of our events. Contributions of all sizes are always accepted – and we’re always open to new ideas! Consider a banner add in this Forum or in our NEW membership portal, or sponsor something like a coffee break or the headshot booth at one of our conferences. Esterien is excited to discuss any ideas you may have, so reach out to her at esterien.keet@nosscr.org.

To help move the needle on our important advocacy initiatives, consider a donation to the NOSSCR PAC.* Contributions to the NOSSCR PAC will be used to support federal and state candidates, political parties, and other political committees in our ongoing efforts to advance improvements and protections for the Social Security disability program.

To help directly support your fellow NOSSCR members, consider a donation to the NOSSCR Foundation. Money donated to the NOSSCR Foundation supports the Randolph Patterson Scholarship fund, providing financial support for legal services practitioners who may otherwise be unable to join NOSSCR and attend our events.

We are grateful for your investment in this organization and for your generosity.

Your Service

Did you know that NOSSCR is run by a Board of volunteer members? Did you know that you elect these members during our annual and special elections, and that the number of members from your circuit determines the number of representatives your circuit has on our Board? We also have Committees that help inform the Board of membership goals. What that means is you are crucial to the operation and direction of this organization. Your voice matters here. If you want to be more involved, reach out – we will happily find a place where your unique talents can be put to good use. If you want to run for the Board, be on the lookout for our next Board vacancy announcements and toss your hat in the ring. If you want our current Board to consider your suggestions, reach out to your Circuit Representative to share your thoughts (but please be mindful that they are volunteers with their own busy practices).

Beyond Board service, we also rely heavily on our members to create the content for our conferences. Have a topic you want to see covered? Consider submitting a proposal to speak at our upcoming fall conference in Salt Lake City. Don’t feel comfortable on the big stage but have a topic you’d like to see covered? My inbox is always open to your ideas (jennifer.cronenberg@nosscr.org).

NOSSCR is a reliable and respected organization because we are a community who shows up, gives generously, and serves willingly. We thank you for your membership and your participation and we promise to do our best to continue providing advocacy that improves your practices, education that strengthens your skills, and opportunities for connection that provides a sense of community.

*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.

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President’s Corner

Rob Wendt, NOSSCR President

As NOSSCR starts a new year, with new opportunities and new challenges, we should briefly look back to 2023, when NOSSCR moved to Washington, DC, for a clearer picture of how far we’ve come and where we hope to be by this time next year.

The 2023 move to Washington was a sea change event for NOSSCR, the most profound change since our founding in 1979. The goal was to modernize our operations and to become the most powerful and effective advocates for our disabled clients on Capitol Hill and in the Office of the Commissioner, in accordance with our mission statement:

To advocate for improvements in Social Security disability programs and to ensure that individuals with disabilities applying for Social Security Disability and SSI benefits have access to highly qualified representation and receive fair decisions.

Few NOSSCR members know the full story of how ambitious and challenging this project turned out to be. NOSSCR was essentially reinvented from the ground up – new staff, new procedures, new systems, new everything! The new NOSSCR was a non-profit startup operation and if you’ve followed the epic business startups of the last few decades, you’ll know that the following AI description only begins to capture the enormity of NOSSCR’s transformation:

The startup experience is characterized by a blend of innovation, creativity, and the entrepreneurial spirit. It involves taking on new challenges, making quick decisions, and often working under tight deadlines. Startups require individuals who are adaptive, proactive, and capable of driving growth. The experience can be both rewarding and challenging, as it often involves learning new skills and technologies quickly to meet the startup’s needs.

For many years, NOSSCR served its membership well in terms of continuing legal education, news of political, regulatory, and legal developments, and support for appellate litigation on important legal doctrines. But NOSSCR’s effectiveness as an advocate with members of Congress and with SSA’s top leadership was never sufficiently strong or strategic and became even less effective at a time when political pressures had degraded our ability to achieve timely approval of our client’s claims, or to keep our law practices profitable.

By the 2000’s, the Social Security Administration had become overly bureaucratic and sclerotic, with aging computer systems and outmoded procedures, complicated by increasing workloads and insufficient staffing, and a series of Commissioners more focused on policy rather than operational issues. In 2011, Tea Party members of Congress took control of the House and relentlessly attacked the disability program, resulting in a devastating drop in ALJ award rates, and for almost 14 years, the Commissioner failed to increase the $6,000 fee agreement cap to account for inflation. Something had to change to protect our clients and our law practices and the only way was through the political process.

David Camp, president of NOSSCR in 2022, decided to take action, and devised a plan to move NOSSCR to Washington and to reform our political advocacy strategy. He shopped these ideas around with various board members, including me, and found the support he needed. I told David that in 1996, at the NOSSCR conference held in my home town, Charleston, SC, I had arranged a surprise public meeting at a nearby hotel, open to all NOSSCR members, to discuss the deficiencies in NOSSCR’s political strategy, and ideas for building a more effective political presence in Washington. It was well attended and members had a lot to say. David was excited to hear about this history, and named his reinvention idea, “The 1996 Project.”

Over the last three years, David, the new NOSSCR staff, and numerous past and present NOSSCR leaders have worked at a whirlwind pace to transform NOSSCR into the premier advocate for the Social Security disability community in Washington. In a surprisingly short period of time, David and NOSSCR gained the trust and respect of both the Republican leadership and Democratic members of the House Social Security Subcommittee of Ways and Means, and of SSA Commissioners Martin O’Malley and now Frank Bisignano, as they pursued major reforms of the disability program.

David Camp and NOSSCR are now the most trusted stakeholder partners with Congress and the Commissioner of Social Security, in an unprecedented reformation of the Social Security disability program. From the elimination of archaic and inefficient procedures to the use of modern IT systems and business practices, the disability program is being radically transformed, to the benefit of our clients and the nation. The profitability of our law practices has been restored by these reforms, and by the raising of the fee agreement cap to $9,200, another great achievement of the new and improved NOSSCR.

This year, through our political advocacy, we hope to achieve free medical records for all Social Security disability claimants. Soon we will have an improved portal for disability claimants’ representatives to obtain vital information about our clients’ claims, including payment center information and direct electronic communications systems with the agency, and much more. Prior to the new NOSSCR, none of this was available.

The achievements of the last few years have come at great sacrifice and financial cost, and we’ve learned a lot of lessons, many of them the hard way. But we’ve traveled light years in the reformation of the disability adjudication process, and in the improvement and profitability of our law practices. The Social Security Administration and NOSSCR have a short window of opportunity to complete this reformation, and we need all of our members to support us, and our clients, in this once-in-a-lifetime project.

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Unveiling the CLE Lineup for Our Spring Conference!

It’s here! We’re thrilled to unveil our CLE agenda for Baltimore — and we think it’s one of our best yet. We’ve carefully crafted our agenda to meet the needs of practitioners at every stage of their careers. Whether you’re just getting started or have years of experience, you’ll find sessions built to support your work and sharpen your skills.

This year’s program includes specialized content for legal services advocates and private practitioners alike, along with timely discussions on emerging issues like AI in the workplace and vocational expert testimony in the world of SSR 24-3p. No matter your practice setting or experience level, you’ll leave with practical insights you can put to work right away. Check out the agenda below and register today!

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Dispatches from Camp: Budget High-Wire Act

David Camp, NOSSCR Senior Policy Advisor & General Counsel

If you thought the path to a stable SSA budget was finally clear, the last several days in Washington have provided a sharp reminder of how quickly the political winds can shift. What looked like a “glide path” last week has turned into a high-stakes standoff that could leave the agency in the lurch by Friday at midnight.

The Standoff: DHS, Minnesota, and the “S-Word”

The legislative landscape changed dramatically following the fatal shooting of Alex Pretti in Minneapolis this past weekend—the second such incident involving federal agents in that city this month. Because SSA’s funding is part of a “minibus” package that includes the Department of Homeland Security (DHS), the agency has become a bystander in a bitter battle over federal law enforcement conduct.

The rhetoric escalated sharply yesterday. Senate Minority Leader Chuck Schumer made the Democratic position clear, stating:

“What’s happening in Minnesota is appalling—and unacceptable in any American city… Senate Democrats will not provide the votes to proceed to the appropriations bill if the DHS funding bill is included.”

On the other side of the aisle, Senate Majority Leader John Thune has pushed back, accusing Democrats of playing political games with essential funding and reiterating that he opposed an extension beyond the January 30 deadline.

The SSA Budget: A “Restoration” Snapshot

It is frustrating that issues regarding a completely distinct agency are stalling an SSA budget that, for once, actually addresses some of SSA’s critical needs. The House-passed agreement includes:

• Total Funding: $14.84B, largely matching the administration’s request of $14.79B.
• The FTE “Add-On”: Congress actually went $50M above the request to increase Full-Time Equivalents (FTE), explicitly acknowledging that the agency needs more boots on the ground to provide high-quality service.
• IT Modernization: A requested $400M increase (+18%) in IT funding is included. However, for those of us in the hearing rooms, it’s a “restoration” rather than an expansion. For example, IT funding for “Disability, Hearings, & Appeals” would rise to $124.8M—a significant jump from last year ($75.2M), but still below the $129M allocated in FY 2024.
• A Shorter Leash: Reflecting concerns about recent DOGE (Department of Government Efficiency) interventions, the report demands a granular, contract-by-contract breakdown of SSA’s IT portfolio. Congress is giving SSA the money, but they are keeping a closer eye on the checkbook.

Shutdown Outlook as of Wednesday

As I write this on Wednesday morning, Senators have returned to work for closed-door meetings within their parties.

The current outlook is grim:

• The Vote: The Senate is scheduled to vote on the six-bill package on Thursday, but it is expected to fail as long as DHS is included.
• The Off-Ramp: Congressional Republicans are currently waiting for a signal from the White House. Unless the Administration indicates that it will accept changes to the package—such as stripping out the DHS portion—a shutdown is more likely.
• The Duration: If the government shuts down Friday night, the consensus in D.C. is that it will last at least until the middle of the following week.

What This Means for NOSSCR Members

SSA has not yet released an updated contingency plan for this specific week, though we do not expect changes from the version used recently. Benefit checks will still clear, fee payments and hearings will continue, and pending claims will be processed. Regardless of the wording in a contingency plan, expect customer service deficits—especially at field offices and on the phones.

We hope the Senate will pass the Labor-HHS section (including SSA) separately, but with the House out of town this could cause delays into February.

NOSSCR will work to keep you updated.

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Piemonte’s Perspective

George Piemonte, NOSSCR Past President

Do Your Job: Effective Cross-Examination of the Vocational Expert

Vocational expert testimony frequently determines whether a claim is won or lost at steps four and five of the sequential evaluation. Yet vocational cross-examination is often either underutilized, misused, or foregone altogether—attorneys either waive their opportunity entirely or launch scattershot attacks that fail to undermine the testimony in any legally meaningful way.

This article is designed as a practical guide for Social Security disability practitioners who want to conduct focused, effective, and appeal preserving cross‑examinations of VEs. The unifying principle is simple: develop the record, challenge unreliable testimony, and preserve error, without doing unnecessary harm to an otherwise favorable case.

I. First Principles: Know When to Speak, and When Not To

At step five, the Commissioner bears the burden. If the vocational testimony supports a fully favorable decision, restraint is often the best advocacy. Ill‑considered questioning can rehabilitate weak testimony or introduce evidence the agency did not previously have. Remember the burden is on the Commissioner at Step 5, so if you get the VE to concede that a stated job(s) does not fit the hypothetical, DO NOT ASK IF THERE ARE OTHERS THAT DO! Don’t do the ALJ’s job for them.

That said, claimants’ representatives are entitled to fully question the VE on any matter within the VE’s area of expertise. HALLEX I‑2‑6‑74(C) explicitly recognizes this right. When testimony is material, implausible, or unsupported, developing the record is not optional; it is essential.

A few foundational rules should guide every vocational cross:

• Clarify before you attack. Undefined terms and sloppy assumptions are often the VE’s greatest weaknesses.
• Ridicule is not a rebuttal. Demonstrating that testimony is “ludicrous” does not create contrary evidence.
• Hypothetical questions are not cross-examination. They may shape the record, but they do not test credibility or reliability.
• Uncontradicted vocational fabrication can become substantial evidence. If the record is silent, you may need affirmative vocational evidence.

Just as important: do not stipulate to the VE’s qualifications. Stipulating forecloses any later challenge to expertise, at the hearing level and on appeal.

II. Voir Dire the VE: Qualifications Matter

Vocational testimony is only as good as the expert giving it. Practitioners should routinely conduct a brief but pointed voir dire to assess whether the VE actually meets the standards set forth in the SSA’s Vocational Expert Handbook.

Key lines of inquiry include:

• Familiarity with the current VE Handbook and the requirement to cite, explain, and furnish sources
• Whether those sources have been brought to the hearing
• Whether the VE has current knowledge of occupational trends
• Whether the VE has personally placed disabled workers into competitive employment, and how recently
• Academic and professional credentials (graduate education, certification as a rehabilitation counselor)
• Any training or qualifications as a labor market statistician

These questions serve two purposes: they test credibility and preserve appellate issues if unsupported testimony is later credited.

III. “Occasional” Interaction with Supervisors: A Common Logical Problem

ALJs frequently ask VEs to assume that a claimant can “interact appropriately with supervisors occasionally.” This phrasing is deceptively problematic.

“Occasionally” means up to one-third of the workday. But supervision is not an optional function of employment. In real-world work environments:

• All jobs involve supervision and training.
• New workers must receive instructions, corrections, and feedback.
• Workers are expected to respond appropriately to supervision 100% of the time.

Effective cross-examination exposes the logical gap:

• All jobs require some supervision, correct?
• New employees must be told what to do?
• They must be corrected when they do something wrong?
• Would an employee remain employed if they responded inappropriately to supervisors two-thirds of the time?

The goal is not theoretical purity; it is practical realism.

IV. “I Know From My Experience”: Ipse Dixit Is Not Evidence

One of the most common and dangerous forms of vocational testimony is the unsupported assertion, “I know from my experience.”

This is classic ipse dixit: an unverified conclusion offered without data. Memory is fallible, unreviewable, and often conflated with informal observation. Many VEs describe casual impressions as “job surveys” despite having no written records at all.

Effective responses include two parallel strategies:

A. Attack the Data

Most VEs are not statisticians. Asking even basic questions about sampling methodology can reveal that their conclusions are mathematically meaningless:

• With the number of jobs you cited, how large would a sample need to be for a 95% confidence interval?
• How many jobs did you actually study?
• Would that sample be sufficient to predict job requirements nationwide?

B. Attack the Memory

If no data is produced, probe the reliability of recollection:

• When and where did you study this occupation?
• Which employers?
• Who supervised the work?
• What observations did you document?
• Did you make any written record? If so, where is it?
• How do you avoid confusing this job with others you’ve studied?

The more specific the questions, the more apparent the unreliability becomes.

V. Refusal to Provide Sources and Biestek v. Berryhill

When a VE refuses to provide underlying data or an ALJ prohibits inquiry, Biestek v. Berryhill becomes central. The Supreme Court held that VE testimony may fail to constitute substantial evidence when the VE refuses to provide supporting data without good reason, and when the testimony otherwise lacks indicia of reliability.

Moreover, the Solicitor General expressly endorsed the VE Handbook’s requirement that VEs be able to explain the resources they used and how they arrived at their conclusions, and confirmed that claimants may submit rebuttal evidence.

Effective questions include:

• Why can’t you provide the sources?
• How many pages are involved?
• What confidential information is included?
• Have you ever provided this data before? To whom?
• How was the data collected and verified?
• How did you apply it to reach your opinion?

If the record reveals opacity rather than expertise, reliability is in serious doubt.

VI. Absenteeism Testimony: The Real World Matters

VEs frequently testify that employers tolerate two or more absences per month. This claim often collapses under minimal scrutiny.

There is no federal requirement that employers provide sick leave. Unskilled jobs are easily replaced. And empirical data show that U.S. workers average far fewer absences per year than vocational testimony suggests.

Useful questions include:

• Why would an employer hold an unskilled job open for repeated absences?
• What law requires employers to allow this?
• What is your specific source for that absenteeism tolerance?
• What is the actual average number of sick days taken annually?

Supplementing the record with employer statements or vocational rebuttal evidence can be particularly powerful here.

VII. “Transferable Skills” That Aren’t Skills

Driving, answering phones, talking to people, and making change, these are often cited as transferable skills. They are not.

A skill must be learned through past work. If it was acquired through school, daily life, or basic adulthood, it is not a vocational skill under SSA regulations.

Cross-examination should focus on acquisition:

• Where and when did the claimant learn this skill?
• Was there formal training?
• How long did it take to learn?
• Was it specific to the past job?

Without job-specific training, “transferability” collapses.

VIII. Sedentary Jobs and Morbid Obesity

When a claimant weighs 300 pounds or more, vocational testimony often ignores physical realities.

Standard office chairs are not designed for that weight. Bariatric chairs are specialized equipment. Providing special equipment is an ADA accommodation, and SSA may not rely on accommodations to support a denial.

Key lines of inquiry include:

• What is the tested capacity of standard chairs?
• Are bariatric chairs commonly provided?
• Isn’t special seating an accommodation?
• Can extreme obesity interfere with reaching a workstation?

The goal is to establish that the job, as generally performed, is not realistically available.

IX. Job Numbers and Methodology

Always identify the source of job numbers. If SkillTran is used, ask whether the VE manipulated the data. If not, confirm that the unaltered numbers can be independently verified. For other sources, demand a clear explanation of methodology.

Opaque math is not substantial evidence.

X. Building a Record for Appeal at Steps Four and Five

Finally, vocational cross is not only about winning at the hearing, but it is also about preserving error.

At step four:

• Develop detailed testimony about past relevant work
• Obtain DOT codes
• Establish composite jobs where appropriate, citing POMS DI 25005.020(B)

At step five:

• Modify the ALJ’s hypothetical, one limitation at a time
• Tie each modification directly to record evidence
• Create a clear foundation for appeal if the decision is adverse

Conclusion

Effective vocational cross-examination is not performative; it is disciplined, targeted, and grounded in the real world. When done correctly, it exposes unreliable testimony, protects the integrity of the record, and positions the case for success at the hearing level or on appeal.

Doing your job means doing it with purpose.

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The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.

Rethinking the Appeals Council Brief

Dennis Wasitis, Former SSA Appeals Council Attorney Analyst

There is a scene in “Good Will Hunting” where Robin Williams tightly hugs Matt Damon and quietly says “it’s not your fault” several times. In my 15+ years at the Appeals Council I thought of that scene a lot when reviewing AC briefs. Out of the thousands I evaluated over the years, it was all too rare that I found one that was helpful. Why is that? Full disclosure, prior to working for the AC, I represented claimants and filed many AC briefs myself.

If I had one question to ask an eponymous representative it would be “what is your goal at the Appeals Council?” If I asked you, what would your answer be? It’s not a trick question. Before you answer, a little history is in order.

The AC is the last stop for a lot of claimants, the end of the line for cases that are just not quite there. The AC has long been an enigma for representatives, but it’s just a group of people working in offices like most government jobs. It has less than 1,000 employees total. It is located in Baltimore and Washington D.C., and is divided into attorney analysts, appeals officers, administrative appeals judges and support staff. Most are now attorneys. I was an attorney analyst (AA). To continue the metaphor, the AA is the engine that drives the train.

Your AC brief and the case it represents is reviewed by an AA, who recommends whether to grant or decline review. This recommendation is generally rubber stamped, so the AA is likely your only audience. This is a person who completes, on average, three cases a day. This is a person who needs to be quickly directed to obvious errors in the hearing decision. You are not trying to convince this person that your client is disabled, only that there are obvious errors in the decision that need to be corrected.

Back to my previous question. If the goal is to win the case at the AC, good luck! The AC grants less than 1% of cases (either fully favorable or partially favorable). If the goal is less ambitious, say to obtain a remand, better luck. The AC remands roughly 15% of the time, but this includes own motion reviews. So, if your goal is to win the case or obtain a remand, you will not achieve that goal 85% of the time. What to do when the deck is that stacked against you?

Instead of a goal that sets you up for failure, perhaps think about the AC brief in more elastic terms, such as process and time management. Your process is your process, but for the AC brief think about the audience and the assignment. In my opening paragraph, I used the word “helpful.” In the context of the AC brief, helpful means concise, easy to read, and fact specific, with direct citations to the medical exhibits. And short. Very short. Like one page short. You want to take the AA by the hand, lead them precisely to the most glaring errors in the decision, and call it a day.

In terms of time management, only you can decide the sweet spot for how much time you want to spend drafting the AC brief. I get that you want to represent your client zealously. But consider the opportunity cost of spending many hours on an AC brief. Remember, this is a task that will likely not generate any direct income. Additionally, in my experience, the longer the brief the less coherent and “helpful” it is. The real question is, how much time can you actually afford to spend?

In my review of thousands of AC briefs, I would suggest that, for a variety of reasons, many are defective. Here are the general types of defective briefs I have seen:

1. No brief at all. The representative simply submits the R/R with a general statement that the claimant is disabled or the decision is not supported.
2. The bullet point brief. The representative submits several bullet points without explaining how these arguments relate to the case at hand.
3. The letter brief in paragraph form. This type of brief may raise relevant issues, but is poorly organized, moving from issue to issue without directly citing facts, exhibits or both.
4. The lengthy boilerplate brief. This type of brief contains generic issues in paragraph form with a very minimal link to the case at hand.
5. The overly wrought, overly lengthy brief. This brief may make cogent arguments, but due to its length, citations to case law, faux outrage, explanation of Rulings, and redundant, heavily nuanced arguments, is not overly helpful for the AA’s case review.

These briefs are defective because they either do not concisely direct the AA to the facts and exhibits that support errors, or they do not minimize the representative’s time on task. Or both. If your brief falls into one of these categories, it might be time to rethink your strategy.

In the future, think short and specific with direct cites to the record. One paragraph per issue if possible. Three issues max. You do not need to cite case law, explain rulings, detail the medical evidence, or explain the procedural history. The AA knows why the case is there, knows the rulings, generally does not apply case law, and reviews the entire exhibit file as a matter of course. Just direct the AA to the relevant errors. No more, no less.

One caveat for federal court practitioners-cases that have been previously remanded by a federal court and denied a second time at the hearing level are called FinDecs. Always file FinDec exceptions within 30 days and always file specific exceptions on these cases. If at all possible, argue that the ALJ failed to follow the Court’s instructions. This is THE argument to raise in these cases. FinDecs are heavily scrutinized by the Agency and require the signature of two AAJs. Briefs on these cases may end up being a little longer due to the complexities of the issues and the Agency’s persistent mishandling, but the suggestions above still apply.

I get that this advice might come as a shock to a lot of you. In the legal profession “less is more” is not a commonly accepted maxim. If you are having great success at the AC, by all means, keep doing what you are doing. If you are not, I am here to tell you, “it’s not your fault!”

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For AC practice tips, questions, or a sample brief, feel free to email me at dennis_wasitis@yahoo.com.

NOSSCR Note: We will be offering a virtual interactive workshop with Dennis coming up on Friday February 27, 2026. Stay tuned for more details and a registration link next week!

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The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.

Now Accepting Session Proposals for our 2026 Fall National Conference

We just released the agenda for our Spring National Conference in Baltimore — and if it has you feeling inspired, we have good news!

Speaker proposals are now open for our Fall National Conference in Salt Lake City!

If you have insights, strategies, or updates you’re eager to share, we’d love to hear from you. Salt Lake City will bring the same energy, connection, and high-level learning our community counts on — and your voice could be part of it.

Submit your proposal today and help shape the conversation this fall.

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A Judge’s Perspective: One More Chance to Join Our Prior Sessions

NOSSCR is excited to announce that former ALJ Gina Carpenter is returning to re-present her first two sessions one more time. With overwhelming demand and fantastic feedback from the original programs, we’re making sure everyone has a chance to join one of these live workshops.

Save the date for the following sessions:

• Friday February 20, 11am Eastern: SSR 24-3p

• Friday February 20, 1pm Eastern: What Judges Really Need From Your Briefs and Arguments

Stay tuned — registration information will be available next week. We hope you’ll join us! And keep an eye out for another exciting announcement soon, including the topic and registration details for her March sessions.

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Circuit Court Considerations: When an Error Is Too Big

Adriana de la Torre, NOSSCR Sustaining Member

If you litigate SSD cases in the Fourth Circuit, Hultz v. Bisignano is one of those decisions you want bookmarked, highlighted, and ready to cite.

At a basic level, Hultz is a reminder of something we all know, but still see ignored far too often: fibromyalgia cases cannot be evaluated like other impairment cases. And more importantly, this is not optional.

Same Mistake, Different Case

The ALJ in Hultz did what we still see regularly in fibromyalgia claims: discounted the claimant’s testimony because it wasn’t “consistent with the medical evidence.” That phrasing alone should raise red flags after Arakas v. Commissioner, which was a published decision from the Fourth Circuit in December 2020.

The Fourth Circuit had little patience for the ALJ’s handling of fibromyalgia. The court reiterated what Arakas already made clear: fibromyalgia does not produce objective medical evidence, and ALJs may not rely on the absence of such evidence, even as one factor, to discredit a claimant’s subjective symptoms.

No balancing. No caveats. No “along with other reasons.” If objective evidence is doing any work in a fibromyalgia credibility analysis, the analysis is legally flawed.

Why the Remedy Is the Real Story

What makes Hultz stand out isn’t just the error finding, it’s what the court did next.

Instead of remanding for another hearing, the majority reversed outright and ordered calculation of benefits. That’s a big deal, and it tells us something important about how the Fourth Circuit is viewing these cases.

Once the court removed the improper demand for objective proof, the remaining record pointed consistently in one direction:

• Years of documented chronic pain and fatigue
• Treating rheumatology records repeatedly attributing symptoms primarily to fibromyalgia
• Credible third-party testimony from the claimant’s grandmother
• A condition that predictably waxes and wanes, making isolated “good days” legally meaningless

In other words, there was nothing left for a new ALJ to fix. The denial rested on a credibility analysis that violated Arakas from the ground up.

The Court Pushes Back on Familiar ALJ Reasoning

The opinion also dismantles several justifications that routinely show up in fibromyalgia denials:

• Temporary improvement is not sustained functional capacity.
• Gaps in treatment are not evidence that symptoms resolved, especially where the condition is chronic and untreatable.
• Daily activities are not proof of full-time competitive work, particularly when they are sporadic and followed by significant rest or flare-ups.

None of this is new, but Hultz reinforces that relying on these points to undermine subjective symptoms doesn’t just weaken a decision. It can invalidate it entirely.

Treating Sources: Less Paperwork, More Reality

On the treating-source issue, the ALJ discounted the rheumatologist’s opinion because the doctor didn’t quantify limitations on a form and because of treatment gaps. The Fourth Circuit wasn’t persuaded.

The court emphasized something practitioners often argue but don’t always see adopted: substance matters more than form. Longitudinal observations, consistency with the overall record, and an understanding of fibromyalgia carry more weight than whether a doctor filled out every box neatly.

The Dissent Highlights the Ongoing Tension

Judge Agee’s partial dissent is worth reading. He agreed the ALJ violated Arakas, but warned that awarding benefits without remand risks turning fibromyalgia into a de facto per se disability.

That concern reflects a real tension in these cases: how much deference courts owe ALJs versus how aggressively courts should enforce claimant protections when credibility errors infect the entire decision.

The majority’s response was practical: this record didn’t need another hearing. The problem wasn’t underdevelopment, it was legal error.

Why Hultz Matters in Practice

For advocates, Hultz strengthens several key points:

• Arakas violations are not harmless
• Credibility errors in fibromyalgia cases can justify outright reversal, not just remand
• Consistent subjective complaints, corroborating lay testimony, and the nature of the condition itself matter more than isolated improvement or treatment gaps

If your fibromyalgia case hinges on subjective symptoms, and realistically, it always will, Hultz v. Bisignano is powerful authority for the proposition that some errors can’t be cured with another hearing.

Sometimes, the record is already enough.

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Got any questions? Schedule a consultation with us. 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.

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The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.

Practice Tip: “Recommended Decisions” After Federal Court Remand

Ed Olson & Tom Krause

When a case returns from federal court, you might expect an ALJ to issue a standard decision. But there’s another possibility that catches some practitioners off guard: the recommended decision. With the recommended decision, deadlines and strategic considerations differ significantly from the ordinary administrative process.

What Is a Recommended Decision?

Under 20 C.F.R. § 404.953(c) and § 416.1453(c), an ALJ may send a case to the Appeals Council with a recommended decision rather than issuing a final decision. The regulation states that while an ALJ “will usually make a decision,” the ALJ “may send the case to the Appeals Council with a recommended decision based on a preponderance of the evidence when appropriate.” This pathway typically arises in cases remanded by a federal court for further consideration.

The 30-Day Deadline for Exceptions

Under 20 C.F.R. § 404.984(b)(1) and § 416.1484(b)(1), if you disagree with a recommended decision, you have 30 days from the date you receive it to file written exceptions with the Appeals Council. The exceptions should set forth your reasons for disagreeing with the ALJ’s decision. POMS GN 03101.010 confirms this 30-day period for filing exceptions in cases remanded by a federal court, distinguishing it from the standard 60-day appeal period in non-remand cases.

Practice Tip: Do not request an extension to file exceptions. Although the regulations appear to permit extension requests, seeking one may end badly. If the extension request is made after the exceptions deadline has passed, SSA may wait until your federal court filing window also expires before informing you that SSA policy is to deny extensions once the exceptions period has closed, effectively killing further appeals. Even if the request is timely, SSA may sit on it until the federal court deadline passes, then deny it, with the same result. If you cannot file exceptions within the 30-day window, the safer course is simply to file in federal court once the decision becomes final. This is not a catastrophe—filing in federal court often results in faster processing anyway, as the Appeals Council can lose track of exceptions or cause delays.

A Potential Source of Confusion: The 20-Day Period

There is a separate regulation, 20 C.F.R. § 404.977(d)(1), that allows claimants to file “briefs or other written statements about the facts and law relevant to your case” within 20 days of the date the recommended decision is mailed. This provision appears to address something distinct from formal exceptions, but the language creates confusion. Practitioners encountering this regulation should understand that the 30-day deadline for exceptions under § 404.984(b)(1) governs the formal objection process—though filing any substantive response within 20 days certainly does no harm and may be the more cautious approach.

What Happens If You Don’t File Exceptions?

If you don’t file exceptions, you must pay careful attention to the cover sheet of your notice of decision. The notice typically will state: “If you do not file written exceptions and the Appeals Council does not review my decision on its own, my decision will become final on the 61st day following the date of this notice. After my decision becomes final, you will have 60 days to file a new civil action in Federal district court.” So, if the Appeals Council does not assume jurisdiction by day 60, you can file in federal court between day 61 and day 120.

Practice Tip: This is a hard 120-day deadline from the date of the notice. There is no five-day mailing allowance in remand cases (though weekends and holidays still apply).

Strategic Considerations: Exceptions vs. Direct Return to Court

Not every recommended decision warrants filing exceptions. Consider the nature of the issues:

• For clear regulatory or policy violations, such as a failure to proffer evidence or other procedural defects, filing exceptions with the Appeals Council may be worthwhile. The Appeals Council has authority to correct these types of errors, and doing so might resolve the case more quickly than another round of federal litigation.
• For issues involving the ALJ’s evaluation of medical opinions or subjective symptoms, the Appeals Council has historically shown deference to ALJ determinations. In these situations, some practitioners prefer to skip exceptions and file directly in federal court once the decision becomes final, rather than spending additional time in an administrative forum unlikely to provide relief.

What Happens If You Do File Exceptions?

Under § 404.984(b)(2-3) and §416.1484(b)(2-(3), if you file timely exceptions, the Appeals Council will consider your arguments and all the issues presented by your case. If the Appeals Council sees no reason to change the hearing decision, it will issue a notice addressing your exceptions and explaining why no change is warranted. At that point, the hearing decision becomes final, and your usual 60-day deadline for appeal begins to run.

If the Appeals Council assumes jurisdiction, it may consider any issues relating to your claim, whether or not they were raised in prior proceedings. The Appeals Council can then make a new independent decision, dismiss the hearing request, or remand the case again to an ALJ.

Once you file exceptions, the Appeals Council may assume jurisdiction at any time, even after the 60-day period that would otherwise apply when no exceptions are filed. This extended window is something to keep in mind if you’re weighing the exceptions route.

Practice Tips:

Read your cover notice carefully. The specific deadlines applicable to your case should be stated there, and those deadlines control. Read the notice of decision carefully for information about filing in district court.

Consider the issues at stake before deciding whether to file exceptions or proceed directly to federal court. Technical violations may warrant administrative resolution; subjective evaluation disputes may be better suited for judicial review.

Track the overlapping deadlines carefully. The 20-day period for briefs under § 404.977(d)(1) and § 416.1477(d)(1), the 30-day period for exceptions under § 404.984(b)(1) § 416.1484(b)(1), and the 61-to-120-day window for federal court filing (a hard 120-day deadline with no five-day mailing allowance) all require careful tracking to avoid procedural missteps.

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The views and opinions expressed in this article are the authors’ own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.

Join Our NextGen Casual Coffee Check-In February 3

Don’t miss your next chance for a quick check-in with fellow NOSSCR NextGen members—Tuesday, February 3, at 12pm Eastern. These monthly gatherings (held on the first Tuesday of every month) are an informal chance to network, ask questions, run hypotheticals, and just check-in with our community. These sessions are intended for new(ish) practitioners—those with fewer than 10 years in the field of Social Security disability, or those who are under 40 years old. The virtual gathering is free, but registration is required to get the link—so please register today, mark your calendars, and join us!

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Fall Conference Early Bird Registration Extended!

We’re giving members a little extra time to take advantage of early bird pricing for our Fall Conference, set to take place in Salt Lake City, Utah from October 13-16, 2026. You can now register at the discounted rate through February 14.

Join us for in-depth learning, valuable updates, and the opportunity to connect with colleagues from across the country — all while saving on registration.

Secure your spot and your savings before the Valentine’s Day deadline.

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Legislative Spotlight

Social Security Bills We’re Tracking in 2026

Congress is currently weighing critical carve-outs to the five-month SSDI and 24-month Medicare waiting periods for two progressive conditions.

The Young-onset Alzheimer’s Act (H.R. 6799): Introduced by Rep. Young Kim (R-CA) on December 17, 2025, this bill seeks to expand statutory exemptions to the five-month waiting period. This amendment to the Social Security Act would grant young-onset Alzheimer’s the same immediate eligibility status currently afforded to claimants with ALS. Further, it would waive the 24-month Medicare waiting period. The bill currently has three bipartisan cosponsors and remains under review by the House Committee on Ways and Means.

Text: H.R. 6799 – 119th Congress

The Metastatic Breast Cancer Access to Care Act (S. 3442): Similarly, the Metastatic Breast Cancer Access to Care Act was introduced in the Senate by Sen. Christopher Murphy (D-CT) and Sen. Lisa Murkowski (R-AK) on December 11, 2025. This bipartisan legislation aims to eliminate both the five-month waiting period for SSDI and the 24-month waiting period for Medicare for affected claimants. The bill has been referred to the Senate Committee on Finance for further action.

Text: S. 3442 – 119th Congress

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Relocation of Topeka, KS Hearing Office

The Topeka Hearing Office will be relocating to share space with the nearby Topeka Field Office at 600 SW Commerce PL, Topeka, KS 66615—just 7 miles from the current address at 3712 SW Burlingame Rd., Suite A, Topeka, KS 66609. SSA anticipates completing their relocation by March 30, 2026. Any currently scheduled in-person hearings, after March 30, 2026, will receive updated hearing notices with the new address. Check your hearing notices and be sure to let your claimants know!

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SSA’s Office of the Inspector General Releases Report on SSA’s Telephone Metrics

At the end of last month, the Social Security Administration’s Office of the Inspector General (OIG) released a comprehensive audit examining SSA’s telephone service performance and the accuracy of the agency’s reported call-center metrics for fiscal year 2025. Prompted by an inquiry from Senator Elizabeth Warren (D-MA), the audit scrutinized how SSA measures and publishes key telephone service metrics. Read the full report below.

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PAC Contributor List

THANK YOU TO OUR NOSSCR PAC CONTRIBUTORS

As of January 2026

Daily Dose of Data from SSA

This month, Social Security released the following data:

• Annual Statistical Report on the Social Security Disability Insurance Program, 2024: An annual report providing program and demographic information and statistics about the people who receive Social Security disability benefits—disabled workers, disabled widow(er)s, and disabled adult children
• SSI Annual Statistical Report, 2024: An annual report describing the SSI program and who receives benefits, as well as statistics on recipient characteristics, disability and work incentives, applications, awards, and denials
• Recurring Actuarial Note #5: Internal Real Rates of Return Under the OASDI Program for Hypothetical Workers
• Recurring Actuarial Note #7: Money’s Worth Ratios Under the OASDI Program for Hypothetical Workers
• Monthly Statistical Snapshot, December 2025: A monthly snapshot of statistics on Social Security beneficiaries and Supplemental Security Income recipients
• SSI Monthly Statistics, December 2025: These monthly tables provide statistics for federally administered payments and awards under the Supplemental Security Income (SSI) program
• Earnings and Employment Data for Workers Covered Under Social Security and Medicare, by State and County, 2023: An annual report providing employment and earnings statistics by sex and age for people in employment covered under Social Security and Medicare

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Useful Resources