The expression “it is never too late to come home” also applies to the Disability Advocacy Program (DAP). Last month, the Empire Justice Center welcomed Katherine (Katie) Courtney to the program as a new Senior Statewide Support Attorney. While new to the role, Katie is not new to DAP. She started her legal career in 2006 as a DAP staff attorney in Empire Justice’s Rochester office, where she spent five years representing clients in their disability appeals. Katie rejoined Empire Justice last month to replace Jennifer (Jenna) Karr, who now works as an administrative law judge (ALJ) for the New York State Office of Disability Adjudication and Review.  

As one of three Statewide Support Attorneys, Katie will provide information, technical assistance, training, and support to advocates throughout New York State on matters related to DAP.  She will also provide leadership on policy issues, undertake legislative and administrative advocacy, and participate in individual federal appeals and complex litigation. 

More about the scope of all the services provided by the DAP State Support team is in this article from the October 2022 issue of this newsletter.  

Katie is returning to DAP having acquired deep subject matter expertise in Social Security appeals. Katie most recently worked for five years as a law clerk for the U.S. District Court, WDNY, focusing exclusively on Social Security appeals. Prior to that, she worked as an attorney advisor for the Social Security Administration (SSA), where she trained decision writers on a national scale. 

Many of you know may also know Katie from her many leadership roles, including her time as President of the Greater Rochester Association for Women Attorneys (GRAWA) and President of the Foundation of the Monroe County Bar Association. 

In January 2025, President Trump named Michelle King as the new Acting Commissioner of Social Security, leading a workforce of approximately 58,000 employees. King was preceded for a brief period by Carolyn Colvin, who had previously served as Acting Commissioner from February 14, 2013, to January 20, 2017.  

Colvin and King both followed the tenure of Martin J. O'Malley, who served as Commissioner from December 20, 2023, to November 29, 2024. Acting Commissioner King has had a long career with SSA. She began her career with the agency as a bilingual Claims Representative in 1994 in the Sterling, Illinois field office. In 1998, she moved to the agency's headquarters and began working in the Office of Public Service and Operations Support (OPSOS). She continued to hold various positions of increasing responsibility in OPSOS; and, in 2007, she was appointed to the Senior Executive Service as the Deputy Associate Commissioner for OPSOS.

King has also held executive positions in the Office of Retirement and Disability Policy and the Office of Budget, Finance, and Management (BFM), including serving as the agency's Chief Financial Officer. Immediately prior to becoming Acting Commissioner, Michelle was the Deputy Commissioner for Operations. Notably, in 2023, she was recognized by President Biden with the prestigious Presidential Rank Award for executives who have made significant and lasting contributions to their agency and the Federal Government.

Commissioner King will presumably serve until President Trump’s nominee, Frank Bisignano, is confirmed by the Senate. The CEO of financial technology and payments company Fiserv, Bisignano has an extensive background in the financial services industry. It is anticipated that if confirmed, Bisignano's extensive experience in financial technology could influence the SSA's approach to modernizing its services and operations. 

On January 20, 2025, President Donald Trump issued a memorandum mandating that all federal employees return to in-person work at their designated duty stations, effectively ending remote work arrangements. In response, the Office of Management and Budget (OMB) and the Office of Personnel Management (OPM) instructed federal agencies to revise their telework policies and initiate the transition back to full-time, on-site work. Their instructions gave agencies, including the Social Security Administration (SSA), a deadline of February 7, 2025, to submit their return-to-office implementation plans to OMB. 

Advocates are watching to see how SSA will implement this mandate, and how the changes will impact the current customer service crisis at SSA. Due to funding constraints, SSA has been severely understaffed, with its lowest staffing level in 25 years. In the last 15 years, the agency’s customer service budget fell 19 percent with staffing falling 11 percent, all while the number of Social Security beneficiaries grew by over 13 million, or 25 percent. This has led to significant delays in processing claims, reduced accessibility for individuals with special needs, and longer wait times for the public. As noted earlier in this newsletter, SSA is currently restricting in-person access to its local field offices by requiring appointments for all services.  

The ripple effect of this mandate could further slow down the SSA’s already strained services, further complicating its ability to meet the needs of the public. 

Administration officials stated that it expects, and would welcome, a “wave” of departures from the government in response to the mandate. In addition to ending telework, the Trump Administration also sent an email blast sent on January 16, 2025 to federal employees, offering an “early out” with pay until September 30 if they resign by February 6. The effort is part of the Trump Administration’s plan to reduce the federal workforce. Employees who take the offer would be exempt from the return-to-office requirement until September 30.

In ending telework, OMB and OPM recommended a 30-day timeline for agencies to comply with the executive order. Agencies are expected to notify employees of the mandate and have telework managing officers oversee the implementation process. The directive allows for exemptions deemed necessary by department and agency heads. 

The timeline could be impacted by potential lawsuits. Because the return-to-office mandate is in direct conflict with union-negotiated rights to flexible work arrangements, the issue is expected to escalate into legal challenges.  The American Federation of Government Employees (AFGE), which represents many SSA employees, has expressed its strong opposition, arguing that it undermines negotiated collective bargaining rights.  

In a Dear Colleague letter dated November 13, 2024, the Social Security Administration (SSA) announced that it was transitioning to an appointment-based service model at its local field offices (FOs). SSA stated that the new policy represents an expansion of its current use of appointments, so that beginning January 6, 2025, the agency would require appointments for in-person service at all FOs. This “appointment-focused" model was already in use in almost 400 FOs. SSA has now expanded its use to all FOs, stating that the policy had resulted in improved wait times at the FOs that had been using that system. 

SSA later issued instructions on the topic in Emergency Message (EM) 24059, Social Security Administration Offices Transition to Appointment Focused Service (AFS) for In-Person Services. The Dear Colleague letter had stated that the agency “want[s] to make clear that we will not turn people away for service who are unable to make an appointment or do not want to make an appointment.” EM-24059 provides further guidance on this point, instructing  FO staff to continue providing same day service in several circumstances, including service to “vulnerable individuals facing barriers,” and people who indicate that they cannot make an appointment.

The EM further states: 

If a customer visits a FO/SSCC without an appointment, schedule an appointment for a future date and time or provide same day service if the customer’s situation requires immediate or specialized attention or it otherwise makes sense.

For example: 

• Dire need situations. 
• Terminal illness cases. 
• Special enumeration situations. 
• E-Verify Cases (RM 10245.015) 
• Harassment Abuse Life Endangerment (RM 10220.220)
• Military personnel. 
• Vulnerable individuals facing barriers. 
• Congressional or public relations-related inquiries. 
• Actions required to support a pending claim, including time sensitive actions (e.g., immediate payments, critical case criteria as stated in RS 02801.001 - Critical Case Criteria and Exclusions (ssa.gov), and death correction cases). 
• When a customer without an SSN attempts to schedule an enumeration appointment through ESS and none are available. 
• Local management’s discretion. 

SSA Makes Progress with SSI Online Application but Decommissions eSPF 

In the effort to simplify the process of applying for Supplemental Security Income (SSI) benefits and to make it available online, the Social Security Administration (SSA) has taken the proverbial two steps forward and one step back. On November 14, 2024, SSA announced it was decommissioning the Electronic Social Security Protective Filing (eSPF) Tool, effective November 21, 2024. In the following month, SSA reported progress in simplifying the application process for some individuals and an expansion of its online access. 

SSA had created the eSPF tool in response to requests from the advocate community for SSA to expand its ability to take inquiries from the members of the public interested in filing a claim for benefits. SSA saw an enormous response to the tool and reported that there were over one million attempts to make use of it in just over a year after it was first available.  

Unfortunately, the same lack of resources that necessitated its creation still limited SSA’s ability to meet the demand for appointments. Advocates found that inquiries did not lead reliably to appointments to complete an application, and SSA confirmed that only 37% of those who successfully completed a lead through the eSPF tool saw a completed claim for benefits. 

Reproductive Health Records: You Need A New Attestation Form Under HIPAA 

Claimant representatives have reported that some of their medical record requests are being denied for failing to have an attestation specifically regarding reproductive health. This is attributed to a change in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule effective April 2024.  

The Final Rule, issued by the Office for Civil Rights (OCR) at the U.S. Department of Health & Human Services (HHS), modifies HIPAA by requiring a covered health care provider, health plan, or health care clearinghouse (or business associates), when it receives a request for protected health information (PHI) potentially related to reproductive health care, to obtain a signed attestation stating that the use or disclosure is not for a prohibited purpose.

In the context of Disability Advocacy Program (DAP) representation, this attestation requirement applies when the request is for PHI for judicial and administrative proceedings.  

The US Department of Health and Human Services has issued a model attestation for requested use or disclosure of protected health information potentially related to reproductive health care. A PDF version may be found here. To satisfy this new rule, the best practice going forward may be to have all clients, regardless of gender identity, complete this attestation whenever completing a HIPAA release.

In a Dear Colleague letter, dated December 19, 2024, the Social Security Administration (SSA) announced the expansion of its Representative Call Center (RCC) services. Originally, the RCC served as a dedicated phone line for representatives to address claimant payment issues and expedite case actions pending only within Processing Center 7 (PC 7). The expansion is to now include all processing centers.   

Going forward, representatives can call the RRC at 877-626-6363, and the calls will be automatically routed to the appropriate PC based on the claimant’s age and Social Security Number range. To maintain security, technicians will authenticate all callers by reviewing Forms SSA-1696 and SSA-3288 and verifying responses to at least seven identifying questions.

Technicians on the line should be able to issue notices of award, process attorney payments, and release past-due benefits. Calls that require further development will be documented and sent to the appropriate processing division for follow-up. 

SSA’s customer service problems have included extremely long wait times when calling the agency, a problem impacted by both tech limitations and understaffing. This expansion represents an effort to improve on the agency’s technology by transitioning to Amazon Web Services Connect platform for automated call routing, Interactive Voice Response, and better call transfers. Hopefully, SSA will also ensure the line is appropriately staffed to ensure fast and efficient service delivery. 

IRS Raises ABLE Limits for 2025 

The Internal Revenue Service (IRS) has announced an increase in the annual contribution limit for Achieving a Better Life Experience (ABLE) accounts for the year 2025. The new limit is set at $19,000, up from the previous year's limit of $18,000.  

ABLE accounts are designed to allow individuals with disabilities to save for qualified expenses without affecting their eligibility for government benefits. The annual contribution limit is aligned with the federal gift tax exclusion, which has been adjusted for inflation. 

In addition to the standard contribution limit, employed beneficiaries who do not participate in an employer-sponsored retirement plan may contribute additional funds from their earnings.

New SSA EM Disallows Changes to Gender Markers 

On January 31, 2025, the Social Security Administration (SSA) issued Emergency Message (EM) 25014 instructing SSA staff to stop processing requests by individuals to change their gender marker. The EM states the new policy is effective immediately, and done in accordance with the Executive Order issued by President Donald Trump on January 20, 2025, aimed at defining sex.

Pursuant to EM-25014, SSA will no longer process changes to the sex data field in SSA’s NUMIDENT system, where SSA maintains data collected when issuing a Social Security Number. 

The Social Security Administration (SSA) issued in November extensive new subregulatory rules on overpayments in their Program Operating Manual System (POMS) – that huge compendium governing operations.  Along the way, SSA simplified the Supplemental Security Income (SSI) waiver POMS by folding them into the general POMS, moving section SI 02260.000 largely into GN 02250.000 and GN 02270.000.   

What is an overpayment?  

An overpayment is the total amount an individual received for any period which exceeds the total amount which should have been paid for that period.   

Why does it matter?

Once a determination of overpayment is made, the overpaid amount is a debt owed to the United States Government.  POMS §§ GN 02201.001; SI 02201.005. See also 20 C.F.R. § 416.537.  And the government wants it back. 

Can a person be excused from paying it back? 

Yes, and that process is called the waiver process.  SSA will waive recovery of an overpayment pursuant to a two-part standard:  first, the claimant must be without fault;  and second, either recovery would “defeat the purpose of the Social Security Act” or recovery would “be against equity and good conscience,”  20 C.F.R. §§ 404.506-.512; 416.550-.556, or, for SSI, recovery would impede the efficient administration of the program, 20 C.F.R. § 416.555. 

Recent additions to the POMS focus on all the pieces of the waiver request, providing more opportunities to satisfy the criteria.  Below, we look at the highlights. 

The Social Security Administration (SSA) issued SSR 24-3p: Titles II and XVI: Use of Occupational Information and Vocational Specialist and Vocational Expert Evidence in Disability Determinations and Decisions in December with an effective date of January 6, 2025. This ruling rescinded SSR 00-4p, the Ruling that required an ALJ to identify and resolve conflicts between vocational expert (VE) testimony and the Dictionary of Occupational Titles (DOT). 

The Ruling will apply to all new applications filed on or after January 6, 2025, and to claims that are pending on or after January 6, 2025. Cases that were heard before the rule went into effect but have not yet been decided will have the new rule applied in the decision. Cases in federal court will use the rule in effect at the time of the agency decision; however, any case remanded from federal court will be subject to this Ruling for the entire period at issue. 

Advocate Requirements: At the hearing level, SSA expects all representatives “to raise any relevant questions or challenges” about the VE's testimony during the hearing and “to assist in developing the record through appropriate questions” to the VE. 

SSA cites to the conduct regulations as the authority for this requirement, noting that raising challenges when the VE is ready and available to answer them furthers the efficient, fair, and orderly conduct of the administrative decision-making process. 

Overall, that is a fair statement and it makes clear that now a baseline level of cross examination is required at each hearing (and the failure to do any might be malpractice). There may be times that you will need to request a supplemental hearing in order to complete cross examination (cite to this Ruling that you must make your challenges to the VE during the hearing!). At the same time, these are informal proceedings and a post-hearing memo is still a possibility – but be sure to lay the groundwork in cross examination. For example, a post-hearing memo can still be used to address VE errors or raise other issues after you are able to do more research, including checking VE testimony against other Department of Labor sources. 

As a follow-up to our previous article on electronic signature changes in the October 2024 issue of this newsletter, the Social Security Administration (SSA) has again recently implemented updates to its electronic signature policies. Effective immediately, EM-25010 has replaced EM-20022 (the previous electronic signature policy). It is a welcome change for Disability Advocacy Program (DAP) advocates as it will reduce the extra step, and time delay, of authentication calls for appointments of representation (SSA Form 1696) that were signed electronically.   

The Agency will now accept the following forms without attestation, if they are signed electronically via a commercial product that conforms with their Commercial Product Alternative Signature Process (CPAS): 

• SSA-1696 

• SSA-1693 and other written fee agreements 

• SSA-16 (Application for Disability Insurance Benefits)  

This includes the online version of the SSA-16 application sent to the claimant with the SSA-L2 cover letter after a third party completes and submits the DIB/SSI internet claim 

• SSA-8000 & SSA-8001 (Application for SSI) 

• SSA-820 & SSA-821 (Work Activity Report) 

Key Changes to Vocational Sources.  SSA continues to recognize the DOT as a valid and reliable source of occupational information.  Even better, SSA acknowledges that it is not the only reliable source and does not want to discourage use of other reliable occupational information.   

On January 6, 2025, the United States District Court for the Western District of New York (WDNY) issued General Order No. 168, addressing the assignment of Social Security cases to magistrate judges in instances where parties have not consented to such disposition.  

This order builds upon the Social Security Plan adopted by the WDNY on April 25, 2018, which was implemented to manage a significant increase in Social Security appeals within the district. The plan, effective from July 1, 2018, established procedures for assigning civil actions seeking review of final administrative decisions by the Commissioner of Social Security under 42 U.S.C. § 405(g) and related statutes.  

General Order No. 168 specifically pertains to cases where parties have not provided consent for a magistrate judge to handle the disposition (for example those that have withdrawn from the prior memo of understanding/consent for magistrate judges).

The order outlines the protocol for assigning these cases to magistrate judges, aiming to streamline the judicial process and manage the caseload effectively. However, the Report and Recommendation timeline that flows from assignment to a magistrate is different and may take longer to adjudicate. Advocates will have to track that additional deadline and file objections when necessary.  

For more detailed information, including the full text of General Order No. 168 and related standing orders, please visit the WDNY's official website. 

On January 5, 2025, President Joe Biden signed into law H.R. 82, the Social Security Fairness Act of 2023, a significant legislative measure aimed at enhancing retirement benefits for public sector employees, including teachers, firefighters, and police officers.  

This law repeals two provisions that previously reduced Social Security benefits for individuals receiving public pensions from non-Social Security-covered employment: 

• Windfall Elimination Provision (WEP): This provision reduced Social Security benefits for retirees who also received a pension from employment not covered by Social Security. 

• Government Pension Offset (GPO): This provision reduced spousal or survivor Social Security benefits for individuals who received a government pension from non-Social Security-covered employment. 

It is anticipated that this will impact over 2 million public sector retirees, increasing their monthly Social Security payments. The Congressional Budget Office (CBO) estimated in September 2024, that eliminating the windfall elimination provision would boost monthly payments to the affected beneficiaries by an average of $360 by December 2025.

Ending the government pension offset would increase monthly benefits in December 2025 by an average of $700 for 380,000 recipients getting benefits based on living spouses, according to the CBO. The increase would be an average of $1,190 for 390,000 or surviving spouses getting a widow or widower benefit. 

On December 31, 2024, the Social Security Administration (SSA) issued a final rule for its information exchange with Equifax, a payroll data provider, to reduce improper payments.  

What can Social Security claimants and advocates expect from this? This data sharing should hopefully reduce the number of overpayments because currently, delays in processing earnings information often lead to very large overpayments that are based on inaccurate information or calculations. Delays also make it difficult to obtain evidence and details relevant to the overpayment. Automation should reduce the burden on both claimants and the agency. So long as the person provides authorization, the data is available for payroll information of a beneficiary, recipient, or anyone whose income will be deemed to them for purposes of financial eligibility, such as the parent of a child who receives Supplemental Security Income (SSI).

Many advocates, including the Empire Justice Center and the Urban Justice Center, submitted comments when the rule was proposed commending the effort as one that may help reduce large overpayments based on delayed and inaccurate information, but still urging SSA to ensure due process by requiring verification prior to SSA taking an adverse action toward a recipient or beneficiary. In issuing the final rule, SSA responded to concerns by stating that additional procedures would result in delays. Also, there were other safeguards in place to prevent individuals from being harmed, including procedures to appeal inaccurate information, and the ability to revoke an authorization to share data. 

NYLAG submitted a Freedom of Information (FOIA) request to SSA seeing records related to this process and shared the key takeaways on its website. 

Congratulations to Disability Advocacy Program (DAP) attorney Mary Grace Ferone from Legal Services of the Hudson Valley on a recent successful Federal Court remand from the Southern District of New York. Lennette E. v Comm’r of Social Security; 1:24-cv-01831(November 25, 2024) that hit on many of the most common administrative law judge (ALJ) errors. Magistrate Judge Gary R. Jones ruled remand was necessary for proper consideration of the medical opinion evidence regarding plaintiff’s physical and mental limitations.  

Indeed, ALJ Vincent Cascio was found to have not performed an assessment of plaintiff’s work-related physical abilities on a function-by-function basis. MJ Jones affirms that the ALJ is a layperson and could not arbitrarily substitute his own judgment for a competent medical opinion. Here, all the treating and examining providers assessed significant limitations in plaintiff’s ability to engage in prolonged standing and walking but the ALJ found plaintiff capable of a reduced range of light work, without making an explicit finding to those abilities. He also neglected to consider the consistency between all the opinions.

Further, MJ Gary opined that the ALJ placed undue emphasis on plaintiff’s “conservative care” simply because surgery was not recommended. Highlighting another “greatest hit” of ALJ errors, MJ Gary stated the ALJ should have developed the record further after discounting the opinions as vague or insufficient.  

Similarly, the mental residual functional capacity (RFC) assessment was found to be deficient. MJ Gary found the ALJ considered the medical opinions in isolation, without accounting for the significant consistency between the treating and examining opinions. The Magistrate Judge also called out the ALJ for being inconsistent in his consideration of the opinions because he discounted one opinion for not having subsequent review of records but found persuasive another opinion that did not either. MJ Gary noted he ALJ overrated the plaintiff’s ability to maintain attendance and her affect at brief, infrequent mental health encounters.

We often hear the advice to “take a deep breath,” but is there a best way to do that? Meditative breathing techniques can take many forms, but “box breathing” is a simple and well-known technique for managing the breath to de-stress and stay calm. According to the Cleveland Clinic, it is so common and effective that it is used by the U.S. Navy SEALS as well as “stressed out people everywhere.” 

With its origins in the yogic practice of pranayama, box breathing refers to the four sides of a box and involves breathing while slowly counting to four for a total of four times: four counts of breathing in, four counts of holding the breath, four counts of exhaling, and four more counts of holding after exhaling.  

In times of stress, breath work can activate the parasympathetic nervous system to move out a “fight-or-flight” state, helping the body to relax. Studies show regulating the breath can lower cortisol and possibly lower blood pressure.  

Studies have also noted the importance of stress management as essential to building resilience and avoiding burnout, which the World Health Organization classifies not as a disease but as an occupational phenomenon. It is characterized by three dimensions: exhaustion; disconnection or cynicism; and reduced efficacy. Burnout can be prevalent in high stress professions such as healthcare. The same can be said of legal services. Social justice and human rights activists are also susceptible.  

Like many skills, breath work and self-care can take practice, and there are many other tools and supports out there to help. That includes apps such as Calm and Headspace to help practice self-care daily through meditation, mindfulness, and better sleep. Bar associations, including the New York State Bar Association, offer wellness resources, as do organizations such as NAMI and others, some of which offer tips on coping in times of crisis and uncertainty.