| | | | | | | | October 2025 Welcome to the October 2025 quarterly issue of Disability Law News. This month, we begin with a look at recent leadership changes at the Social Security Administration (SSA), including Commissioner Frank Bisignano’s recent appointment at the IRS, and the implications of the federal government shutdown on agency operations and court deadlines. We also report on SSA’s announcement of a new hearing site in Nyack, and provide updates on the 2026 cost-of-living adjustment (COLA). This issue covers emerging concerns about data privacy and interagency information sharing, including a class action challenging USCIS’s use of the SAVE system and a whistleblower’s account of vulnerabilities in SSA’s data infrastructure. We also highlight SSA’s revised walk-in policy, new guidance on overpayment recovery, and regulatory changes on the horizon. In State news, we cover the veto of a bill that would have restored retroactive State Supplemental Payment (SSP) benefits for closed periods. This issue also includes summaries of recent administrative decisions, updates from the Second Circuit, and an interview with Andrea Sasala on her retirement from DAP. | | | |  | | | In the latest of many unusual structural changes made at the Social Security Administration (SSA) and across the federal government this year, the Commissioner of Social Security, Frank Bisignano, was recently appointed Chief Executive Officer of the Internal Revenue Service (IRS) earlier this month. The dual appointment – unprecedented in SSA’s 90-year history – has sparked concern among advocates and policy experts about the implications for the operations of two massive, complex, and under-resourced government agencies, and the integrity of sensitive data shared between them. Bisignano, a former Wall Street executive, will now oversee day-to-day IRS operations as the seventh leader for the IRS this year while continuing to lead SSA. Treasury Secretary Scott Bessent remains the acting IRS Commissioner. Advocates warn that the consolidation of leadership will compromise privacy protections and exacerbate existing resource shortfalls at SSA, which has been operating with diminished staffing since early 2025. Government Executive reports that the creation of the IRS CEO role, which bypasses the Senate confirmation process required for IRS commissioners, has also drawn criticism from oversight experts who warn it undermines statutory safeguards and consolidates executive power. The appointment follows a wave of resignations at the IRS, including multiple acting commissioners, general counsel and other senior officials who reportedly left after refusing to compromise taxpayer data to DHS for immigration enforcement – developments that coincide with ongoing concerns about data governance at SSA, where whistleblower Charles Borges—former Chief Data Officer—recently resigned after alleging that sensitive Social Security data had been improperly transferred to a vulnerable cloud environment by the Department of Government Efficiency (DOGE) personnel. | | | In an internal email, Borges described a culture of fear and exclusion within SSA, and warned that the agency’s data practices posed serious risks to public trust and privacy. Borges disclosure is discussed in another article in this issue. In recent weeks, SSA has announced further changes to its structure. This newsletter previously reported in January and July on the rapid turnover and restructuring at SSA, including the elimination of key offices and the reassignment of career staff. A September 3 press release from SSA marked the first formal acknowledgment of sweeping internal changes that had been unfolding for months. The announcement introduced a new executive leadership team and referenced the formation of several new units under the banner of “Disability Support.” However, the agency’s official organizational chart remains sparse, listing only the Commissioner by name. The shakeup follows the elimination of longstanding offices—including Congressional Affairs—and the reassignment or departure of numerous career staff, many of whom had decades of institutional knowledge. These changes, which had not been publicly detailed prior to the press release, reflect a broader restructuring effort driven by the DOGE and have raised alarms among advocates and agency insiders. | | | | | | | |  | | | On October 1, 2025, the federal government entered a shutdown after Congress failed to pass funding legislation for the new fiscal year. With many agencies facing lapses, the question on many minds is: What does this mean for Social Security benefits and services? The good news: For individuals who are already receiving benefits from the Social Security Administration (SSA), such as retirement, disability (SSDI), or Supplemental Security Income (SSI), their payments will continue without interruption and on their normal schedule. This is because these programs are funded through mandatory spending, not annual appropriations, so they are insulated from the immediate effects of a lapse in funding. While benefit checks are safe, many ancillary services at local SSA offices are limited. According to the SSA’s contingency plan, field offices remain open but with reduced services. Services that are still being offered: applying for benefits, appeals/hearings, changing direct deposit/address, replacing lost payments/cards, reporting death/citizenship changes. | | | Notably, overpayment processing is paused. Benefit-verification letters are also paused and SSA is directing the public to use my Social Security for this whenever possible. Other services that may be temporarily suspended or delayed are the issuance of replacement Medicare cards and non-urgent administrative requests. Updates to the annual cost-of-living adjustment (COLA), which affect benefit amounts for the coming year, were delayed due to the shutdown but have since been announced; see the article in this issue for more details on the 2026 COLA increase. Representatives have reported varied reactions when contacting the field office or hearing office for assistance. Offices seem to be inconsistently interpreting what is permitted under the contingency plan for communication with representatives. | | | | | | | | | | In some good news for Disability Advocacy Program (DAP) clients in the Hudson Valley, the Social Security Administration (SSA) has announced that its recently renovated West Nyack field office will now house a hearing room for in-person disability hearings. This marks the first return of in-person hearing capacity to the region since SSA permanently closed the White Plains Office of Hearings Operations (OHO) earlier this year. The announcement was made on October 31, 2025, by Commissioner Frank Bisignano and Congressman Mike Lawler (NY-17) at a press conference held at the Nyack office. The new hearing room is located within the SSA field office at 240 West Nyack Road, which, as reported by The Journal News, reopened in August following more than a year of renovations. SSA officials clarified that while most disability hearings continue to be conducted virtually, the Nyack location will now offer in-person hearings before administrative law judges for claimants in a seven-county region: Westchester, Rockland, Putnam, Dutchess, Orange, Ulster, and Sullivan. In-person hearings are expected to begin in mid-November. | | | This move follows intense public opposition to the closure of the White Plains OHO, which had long served as the only hearing office in the Hudson Valley. As previously reported in our April 2025 issue, SSA declined offers from local officials to relocate the White Plains hearing office to County-owned space, stating that the space was not needed because the agency planned to reassign claimants to surrounding OHOs. Under SSA’s realignment plan, individuals served by the Peekskill and New Rochelle field offices were reassigned to the New Haven OHO, those in Yonkers to the New York OHO, and the remainder to the Bronx OHO. To accommodate these shifts, SSA also reassigned several NYC claimants previously served by the Bronx and New York OHOs. | | | | | | | | | | Recent investigations, media coverage, and a new lawsuit are all calling attention to the Social Security Administration’s (SSA’s) ongoing customer service issues. While agency leadership claims that service has improved, there is broad consensus – among oversight bodies, advocates, and journalists – that significant problems remain unresolved and that transparency about the agency’s performance is lacking. In late August 2025, at the request of Senator Elizabeth Warren (D-MA), the SSA Office of Inspector General formally announced an expedited audit of SSA’s customer service operations—especially call center wait times, staffing practices, and the accuracy and availability of service performance data. On September 5, 2025, Senator Warren released a report detailing the data and consumer information that has been removed from the Social Security website since Bisignano took office (i.e. the agency no longer provides real-time information on wait times on its website). While SSA subsequently revised portions of its website, to re-add some of the performance metrics that were previously removed, hold or callback time are still not listed. The OIG aims to finish the audit by the end of 2025, however with the ongoing federal shutdown, it is unclear how that may impact the publication and findings. | | | Adding to the growing scrutiny, a lawsuit filed last month by Democracy Forward against SSA complains about the agency’s failure to respond to Freedom of Information Act (FOIA) requests for information related to SSA’s customer service metrics. The suit, filed in the U.S. District Court for the District of Maryland, alleges that SSA unlawfully withheld records that would illuminate widespread service disruptions and internal policy changes affecting millions of beneficiaries. Among the requested documents were internal communications and data concerning workforce reductions, cuts to telephone services, and the removal of key customer service metrics from SSA’s public website. These metrics—once used to track wait times, service availability, and field office performance—were reportedly eliminated during a broader restructuring effort. The lawsuit seeks to compel SSA to release all non-exempt records, grant fee waivers, and restore public access to information critical for evaluating the agency’s service delivery. | | | | | | | | | | The Social Security Administration (SSA) has announced a cost-of-living (COLA) increase earlier this month that will affect over seventy million Americans, albeit two weeks delayed this year due to the government shutdown. Recipients of Supplemental Security Income (SSI), totaling around 7.5 million, will see a 2.8% increase in benefits beginning in January 2025. For an individual living alone, the new monthly federal benefit rate will be $967. This COLA increase reflects that of last year’s, which was 2.5 %. Personal notifications will be released beginning in December of 2025 via mail, while those with my Social Security accounts can view the notice online if their account was created prior to November 9, 2025. Please be sure to notify your clients. See SSA’s Fact Sheet for more information on the new amounts. | | | | | | A class action lawsuit filed on September 30, 2025 in the U.S. District Court for the District of Columbia challenges the Trump administration’s consolidation of sensitive personal data across multiple agencies – including against the Social Security Administration (SSA), Department of Homeland Security (DHS), Internal Revenue Service (IRS), and Health and Human Services (HHS) -- into at least two systems operated by United States Citizenship and Immigration Services (USCIS): the Systematic Alien Verification for Entitlements (SAVE) system, and a separate interagency “Data Lake.” The complaint alleges that both systems unlawfully pool sensitive data, including Social Security numbers, biometric data, tax records, wage and employment histories, and medical and disability information. We previously reported on this expanded use of SAVE in our July newsletter. The SAVE system was originally designed to help state and federal government agencies verify immigration status of noncitizens living the U.S. This new use now links the system to SSA data and allows searches by Social Security numbers. | | | According to NPR reporting, this effectively transforms SAVE into a “citizenship lookup tool” that can now be used to produce information about U.S. citizens. Plaintiffs argue this expansion violates the Privacy Act of 1974 and the U.S. Constitution, particularly given its use to purge voter rolls. NPR has reported that a number of states had in fact started to run their entire state voter rolls through SAVE to check for noncitizens. The lawsuit, League of Women Voters v. US Department of Homeland Security, further alleges that the SAVE system’s expansion was implemented "in secret, without the notice required by law and comment from the public or Congress, and without assessing the privacy implications or risks of error posed by repurposing the data in this way." Plaintiffs warn that the repurposing of sensitive data—especially SSA records—without safeguards increases the risk of security breaches and erroneous disenfranchisement. | | | | | | | |  | | | A formal whistleblower disclosure filed on August 26, 2025 by Charles Borges, former Chief Data Officer at the Social Security Administration (SSA), has exposed alarming lapses in the security and governance of SSA’s most sensitive data. Borges alleges that officials affiliated with the Department of Government Efficiency (DOGE) uploaded a live copy of the Numident database—which contains core identity records for over 300 million Americans—to a cloud server lacking appropriate oversight and security controls. The full text of the complaint can be found here. The disclosure, submitted to the U.S. Office of Special Counsel and multiple Congressional committees, outlines what Borges describes as systemic violations of federal privacy laws and internal SSA protocols. He asserts that DOGE’s actions violated several laws, including the Privacy Act of 1974, Federal Information Security Modernization Act, the Computer Fraud and Abuse Act, the Inspector General Act, and may have circumvented a federal court order restricting access to SSA systems. According to the complaint, DOGE personnel bypassed standard review procedures to transfer the data—which includes names, birthdates, citizenship status, Social Security numbers, and disability-related information—into a cloud environment vulnerable to unauthorized access. | | | The timeline described in the complaint shows escalating access: from a court-ordered revocation in March, to the creation of a cloud-based replica of the Numident database in June, to a self-authorized “Provisional Authorization to Operate” in July—without independent oversight. Borges resigned from SSA on August 29, 2025, describing his departure as a “constructive discharge.” He cited retaliation, exclusion from decision-making, and a hostile work environment after raising concerns internally and externally. In an internal email he sent on his last day, and that SSA staff report disappeared shortly after being sent, Borges stated, “As a result of these events, I am put the intolerable situation of not having visibility or oversight into activities that potentially violate statues and regulations which I, as the CDO, may legally or otherwise be held accountable for should I continue in this position,” he said. “I cannot verify that agency data is being used in accordance with legal agreements or in compliance with federal requirements.” | | | | | | | | ![]() | | | As discussed in our July 2025 issue, beginning September 30, 2025, the Social Security Administration (SSA) and the U.S. Department of the Treasury ended the use of paper checks for nearly all federal benefit recipients. This transition, now in effect, represents the final step in a long-running effort to modernize benefit delivery and require electronic funds transfer (EFT) for Social Security, Supplemental Security Income (SSI), and other federal payments. SSA issued a statement on September 10, 2025 that did little to explain how it would handle the transition. Public messaging about the phase-out of paper checks has shifted repeatedly and lack of transparency have left both beneficiaries and advocates uncertain about who qualifies for exemptions, how to apply, and what the true timeline for enforcement will be. The confusion is exacerbated by the timing of the government shutdown that started on October 1, 2025. | | | Although more than 99% of Social Security beneficiaries already receive their payments electronically, the remaining small group—often older adults, rural residents, or unbanked individuals—may face significant challenges adapting to this change. Those still receiving paper checks had to choose one of two options before the September 2025 deadline: direct deposit to a bank or credit union account, or enrollment in the Direct Express® prepaid debit card program designed for beneficiaries without bank accounts. In extremely rare circumstances, the Treasury may grant exceptions to the electronic payment mandate. Individuals are directed to call Treasury at 1-855-290-1545 for more information or to request a waiver. Individuals are also able to print and fill out a waiver form and return it to the address on the form, but it is unclear how it is handled, tracked, or approved. | | | | | | | | | | On October 17, 2025, Governor Kathy Hochul vetoed 2025 N.Y. Assembly Bill A.1817 (Rosenthal); 2025 N.Y. Senate Bill S.7741 (May), which would have allowed New Yorkers to receive retroactive State Supplement Program (SSP) benefits for periods when they were eligible for Supplemental Security Income (SSI) even if they were only eligible for a closed period of time. The bill aimed to reverse regulations adopted by the New York State Office of Temporary Assistance (OTDA) that limit SSP retroactive payments only to individuals in active receipt of SSI.See 18 NYCRR § 398-11.3. The vetoed legislation proposed to amend Social Services Law § 208 to allow for eligibility for closed periods. Closed periods of SSI occur commonly during the five-month waiting period for Social Security Disability Insurance (SSDI), but can also occur due to periods of ineligibility due to technical reasons. Advocates strongly supported A.1818/S.7741 because it would restore a small but important supplement to a person’s income—typically $23 or $87 per month—that could help stabilize finances after years of waiting for disability determinations. For some, the loss amounts to hundreds of dollars they would have received with their retroactive SSI. The memorandum by Empire Justice Center in support of the bill can be viewed here. | | | Prior to the New York takeover of SSP in 2014 from the Social Security Administration (SSA), SSA issued retroactive SSI payments to recipients as one monthly benefit payment. Advocates argue that these changes undermine the promise made when New York assumed SSP administration—that vulnerable individuals would not be negatively impacted. DAP advocates at Legal Aid Society of Northeastern New York and Legal Assistance of Western New York led successful challenges through Article 78 litigation, but OTDA codified its policy of withholding those payments by issuing the current regulation in 2021. In her veto message, Governor Hochul acknowledged SSP’s importance but stated that its purpose is to supplement current SSI benefits, not to serve as a standalone benefit. She cited significant unbudgeted costs and said the proposal should be considered in the context of the state budget process. While the restrictive regulations remain in place, advocates hope the legislation can succeed in the future, when the state’s budget outlook is improved. In a conversation with Spectrum News, Sponsor Rachel May called to address this in next year’s budget. | | | | | | Rules & Regulations _______________________________________________________________________________________________________ | |  | | | | | The Social Security Administration (SSA) finally released its Spring 2025 Regulatory Agenda on September 4, 2025, previewing two major proposed rules that could radically reshape the disability programs administered under Title XVI (SSI) and Title II (SSDI). While the public-facing descriptions of the proposals are sparse, reporting by The Washington Post and recent analyses by the Center on Budget and Policy Priorities (CBPP) and the Urban Institute provide insight into what may be coming. As reported by The Washington Post, SSA appears poised to pursue changes that experts warn could result in substantial reductions in benefits and loss of eligibility for hundreds of thousands of low-income and disabled individuals. Despite repeated assurances from the White House that Social Security benefits would not be cut, experts estimate that hundreds of thousands face benefit reductions or total loss. The Urban Institute has concluded that one of the proposals, if finalized, would represent the largest cut to SSDI benefits in the program’s history. Rescinding SNAP Inclusion in the Public Assistance Household Rule One proposed rule, Rescission of Changes to the Definition of a Public Assistance Household, would rescind a regulation finalized in 2024 that expanded the definition of a public assistance (PA) household to include the Supplemental Nutrition Assistance Program (SNAP) as a qualifying public income maintenance (PIM) program. | | | We reported on the issuance of the rule in the April 2024 and October 2023 editions of this newsletter. Under the agency’s rules governing in-kind support and maintenance (ISM), a person’s monthly SSI benefits may be reduced by up to one-third (about $300/month) if they receive help with food or shelter. The reductions do not apply when the SSI recipient lives in a household receiving a qualifying PIM payment. 20 C.F.R. § 416.1142(a). Under the current rule, SSI recipients living in a SNAP household would also not be subject to SSA’s deeming rules, under which income from an ineligible spouse or parent is deemed to an SSI recipient. 20 C.F.R. § 416.1160 . This is because application of SSA’s deeming rules is also linked to the types of PIM payments listed in 20 CFR416.1142(a). The rule also expanded the definition of a PA household from a household in which every member receives some kind of PIM payment to a household in which any member receives a PIM payment. | | | | | | | | | | The Social Security Administration (SSA) has issued Emergency Message (EM) 24059 Revision 2, revising its policy on walk-in visits at field offices nationwide. The update, released August 6, 2025, builds upon prior guidance issued in December 2024 and marks a significant shift toward appointment-based service, while reaffirming that certain individuals must still be accommodated for same-day, walk-in assistance. Transition to Appointment-Focused Service As reported in our January 2025 issue, SSA field offices and Social Security Card Centers (SSCCs) are transitioning to an Appointment-Focused Service (AFS) model. This initiative, which began in late 2024, is designed to improve efficiency, reduce lobby congestion, and allow staff to better manage workloads by prioritizing scheduled appointments. | | | While most in-person visits now require an appointment, SSA emphasizes that offices must not refuse service to individuals who are unable to make an appointment or who fall within clearly defined exceptions. The change applies broadly to workloads including initial claims, post-entitlement issues, and Social Security number (SSN) services. Walk-In Exceptions Remain in Place Despite the emphasis on scheduled appointments, EM 24059 REV 2 confirms that walk-in service remains available in certain situations. | | | | | | | | | | The Social Security Administration (SSA) issued Emergency Message (EM) 25029 REV on August 28, 2025, which revises its prior internal instructions for implementing the default withholding rate of 50% of a person’s monthly benefit for Title II overpayments. This rate was first adopted in April 2025, as we reported in our April newsletter article, and applies to overpayments issued April 25, 2025 or later. This EM follows a period of confusing policy reversals earlier this year. In March, SSA briefly reinstated 100% withholding for new Title II overpayments, only to reverse course weeks later and return to the 50% rate via EM-25029. | | | The revised emergency message provides additional guidance to SSA technicians on how to process reconsideration and waiver requests, especially for notice language and procedures for handling cases involving multiple overpayments. | | | | | | | | | | The Social Security Administration (SSA) has recently issued two important Emergency Messages (EM)—EM-25046 and EM-25048. Together, these directives affect how SSA verifies financial resources for Supplemental Security Income (SSI) recipients and how it documents emergency or immediate payments for individuals facing financial hardship. EM-25046, released August 1, 2025, expands the SSA’s use of the Access to Financial Institutions (AFI) system to verify bank account balances and identify undisclosed financial accounts for SSI applicants and recipients, particularly those age 65 and older. Under this directive, SSA may now perform automated verification of financial data by querying institutions in geographic proximity to a claimant’s residence. This represents a significant shift away from reliance solely on self-reported financial information. While the stated goal is to improve accuracy and reduce improper payments, the change raises important considerations regarding privacy, due process, and potential administrative delays. Practitioners should also anticipate an increase in field office requests for resource verification and prepare clients for this additional level of scrutiny. | | | EM-25048, also effective August 1, 2025, focuses on improving the documentation process for Emergency Advance Payments (EAP) and Immediate Payments (IP). These payments are typically issued when claimants or beneficiaries face urgent hardship and cannot wait for standard benefit processing. In the past, SSA staff often used Form SSA-795, the general “Statement of Claimant or Other Person,” to record Immediate Payments. EM-25048 discontinues that practice and introduces a standardized, revised form—Form SSA-8102, titled “Advance Payment or Immediate Payment Receipt and Notice.” This single form will now serve as the official documentation for both Emergency Advance Payments under Title XVI and Immediate Payments under Titles II and XVI. The goal is to create consistency and ensure claimants receive clear written notice and receipts for emergency disbursements. The Program Operations Manual System (POMS) indicates that this form is available electronically to Field Offices through the inForm application. While the POMS online has a link to the form, that link is not live. | | | | | | | | Administrative Decisions _______________________________________________________________________________________________________ | | | | Advocates appearing before the Social Security Administration’s (SSA) Albany Office of Hearing Operations (OHO) are seeing one administrative law judge (ALJ) independently scrutinizing the testimony of a particular vocational expert (VE). In three favorable decisions issued in August 2025, the ALJ found the VE’s testimony unreliable and unpersuasive. In the first case, the ALJ checked the VE’s job numbers and found they did not match data on JobBrowser. The ALJ found two jobs identified by the VE – photo mask cleaner and telegraph service rater – were essentially obsolete. The VE stated there were respectively 316,000 and 68,000 positions nationally, but Job Browser Pro indicates no active positions nationally. She identified patch worker and election clerk worker as having respectively 97,000 and 423,000 jobs, when Job Browser Pro reported 264 and 5,790. And she identified 389,000 housekeeper positions nationally but follow-up queries yielded only 191,000 nationally, which the ALJ noted was less than half the number provided by the VE. Finally, the VE mis-identified another job as unskilled, when the Dictionary of Occupational Titles actually lists it as semiskilled. | | | The ALJ found the VE’s “testimony and stated methodology is so inconsistent with other sources of job numbers recognized by [SSA] that her testimony is deemed unreliable and wholly unpersuasive” and that SSA had “failed to provide competent and adequate evidence” to show a sufficient number of jobs to support finding that the claimant could do other work. The claimant was represented by Allison Zaloba of the Legal Aid Society of Northeastern New York (LASNNY) and the ALJ made this ruling following testimony via interrogatories. The ALJ did not proffer the interrogatories; Allison had requested a supplemental hearing if a fully favorable could not be issued. In another case, the VE identified a job as light which the DOT categorizes as sedentary. She also mis-identified another job as SVP 2 when the DOT categorizes it as SVP 3. The ALJ found that the VE failed to explain whether the occupations she identified were “actually performed in the numbers she cited in the manner she described, or whether they were defined in the manner she described. | | | | | | | | DAP Hearing: Details Matter for SGA | | Attorney Molly Sullivan from the Legal Aid Society of Northeastern New York (LASNNY) recently put in a lot of work to make sure her client made it past Step One of the Sequential Evaluation due to substantial gainful activity (SGA). For the pre-hearing brief, Molly and her colleagues went through the client’s pay and made an argument that her personal, vacation, vaccine incentive pay, and COVID sick pay should be subtracted from her gross income. On top of that, they had to average her wages for a three-year period! The hard work paid off as ALJ Kelly was appreciative of the detailed analysis and calculations. ALJ Kelly cited Ms. Sullivan’s brief in detail and agreed with the calculations and legal argument. Without the efforts of LASNNY to argue the SGA exceptions, the client would have only been eligible for Social Security Disability benefits as of late 2023, instead of the ultimately awarded October 2021 onset date. Congratulations! AC Remands For ALJ to Reconcile Opinion with RFC Continuing on their successful roll, kudos to the Legal Aid Society of Northeastern New York (LASNNY) for their recent success before the Appeals Council (AC). | | | In a decision received last month by LASNNY, the Appeals Council found that the evaluation of medical opinion evidence was insufficient to support the residual functional capacity (RFC) finding. The Council noted that while the ALJ found the opinion of Jackline Ngalame, DNP, PMHNP-BC, persuasive, the decision failed to reconcile Dr. Ngalame’s assessment of the claimant’s significant functional limitations with the finding that the claimant could perform unskilled work such as marker, mail clerk, and dispatcher/router. The Appeals Council directed the ALJ to provide a detailed function-by-function RFC analysis, reevaluate Dr. Ngalame’s opinion, and obtain additional medical evidence or clarification as needed. The ALJ may also seek supplemental vocational expert testimony to better assess the impact of the claimant’s limitations on potential employment opportunities. The Appeals Council emphasized the need for a comprehensive review of the record and a new decision based on the expanded evidence. Way to go to the folks at LASNNY who worked on the case, and good luck at the next hearing. | | | | | | | | | | Send Us Your Decisions! Have you had a recent ALJ or court decision or SSA update that you would like to see reported in an upcoming issue of the Disability Law News? We would love to hear from you! Contact Katherine Courtney, [email protected] or Emilia Sicilia, [email protected] | | | | | | | | | _______________________________________________________________________________________________________ | | This "Bulletin Board" contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit. The Second Circuit summaries, as well as earlier decisions, are also available here. Synopses of non-precedential summary orders issued by the Second Circuit are available here. We will continue to write more detailed articles about significant decisions as they are issued by these and other Courts, but we hope that these lists will help advocates gain an overview of the body of recent judicial decisions that are important in our judicial circuit. | | | | U.S. v. Vaello Madero, 142 S. Ct. 1539 (April 22, 2022) In an 8-1 decision, the Supreme Court held that the exclusion of residents of Puerto Rico from the Supplemental Security Income (SSI) program does not violate the United States Constitution. The Court applied the rational basis test to find it permissible to treat residents of territories such as Puerto Rico differently than if they lived in a state because of the different tax status applicable to territories, an outcome authorized by the Territories Clause of the Constitution. The Court declined to rebuke the Insular Cases, a line of case law that sanctioned the colonial relationship of the U.S. to the territories, and that determined the full scope of the Constitution did not apply. A lone dissent by Justice Sonia Sotomayor described the majority decision as “especially cruel given those citizens’ dire need for aid.” Carr v. Saul, 141 S.Ct. 1352 (Apr. 22, 2021) The Supreme Court held that a claimant is not precluded from raising a legal issue for the first time in U.S. District Court if it was not raised before the Administrative Law Judge (ALJ). The underlying issue in question in Carr and its companion cases was whether the ALJ was properly appointed under the Appointments Clause of the U.S. Constitution. In the aftermath of Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018) challenging the constitutionality of SEC ALJs, Carr and other plaintiffs challenged the legitimacy of the ALJs who had denied their disability claims and sought new hearings. The Commissioner argued the plaintiffs had forfeited their Appointments Clause challenges because they had not raised them before SSA during the administrative appeals process. The Supreme Court resolved a conflict in the circuits by holding that given the non-adversarial nature of SSA hearings, issue-exhaustion is not required. Smith v. Berryhill, 139 S.Ct. 1765 (2019) The Supreme Court held that an Appeals Council dismissal of a request for review is a final decision subject to judicial review. The Court unanimously held that where the Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits, the dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of 42 U.S.C § 405(g). It distinguished its earlier ruling in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), by emphasizing that as opposed to the denial of a request for reopening in Sanders, there had been a decision by an ALJ on the merits of the plaintiff’s claim. Biestek v. Berryhill, 139 S.Ct. 1148 (2019) In a 6-3 decision, the Court declined to adopt a categorical rule that a vocational expert’s supporting data must be provided in order for the testimony to constitute substantial evidence. But the majority acknowledged that in some cases it may be possible to draw an adverse inference against a VE who refuses to provide supporting data. | | | | Flinton v. Commissioner of Social Security, 143 F.4th 90 (2d Cir. July 2, 2025) The Second Circuit vacated the district court’s decision and remanded for a new hearing before a different, properly appointed ALJ. The court held that the plaintiff, whose 2018 hearing was conducted by an ALJ not constitutionally appointed under the Appointments Clause, had not received the remedy required by Lucia v. SEC, 585 U.S. 217 (2018). The Commissioner’s later ratification of that ALJ’s appointment did not cure the defect, as Lucia mandates reassignment to a different ALJ to preserve structural constitutional protections. The court emphasized that such reassignment is not a mere formality but a necessary remedy when a hearing is tainted by an unconstitutional appointment. The decision—referred to as the “Flinton Rule”—requires new hearings before different ALJs in similar cases involving pre-July 2018 appointments. Rubin v. Martin O’Malley, 116 F.4th 145 (2d. Cir. 2024) The Court of Appeals remanded for consideration of the C criteria of Mental Impairment Listing 12.04, finding that the ALJ had failed to provide any rational for why the plaintiff did not meet the criteria. The court also offered what could be helpful language on the limited value of Mental Status Exams (MSEs) that can often derail claims. And it acknowledged that a psychiatrist’s opinion can be based on and supported by the totality of the medical evidence from the whole treatment team, not merely his own limited notes. It rejected, however, the plaintiff’s argument that the ALJ erred in denying the claim without the support of a medical opinion that she could work. But because the ALJ had found the psychiatrist’s opinion and those of the non-examining consultants only partially persuasive and because the claimant had failed to attend a consultative examination, the ALJ’s decision was not supported by substantial evidence. The court remanded for a consultative examination and fuller consideration of the evidence of record. Rucker v. Kijakazi, 48 F.4th 86, 2022 WL 4074410 (2d Cir. Sept. 6, 2022) The court remanded under the pre 2017 opinion evidence regulations that applied to this case, finding the ALJ had not identified substantial evidence to support her conclusion that the plaintiff could work alone except for normal supervision. She also failed to provide good reasons for rejecting the limitations identified by the treating psychiatrist, erroneously rejecting it because it was based on the plaintiff’s own reports. Nor was the plaintiff’s periodic lack of complaints of symptoms sufficient given her lack of insight. The ALJ should not have relied on the plaintiff’s ability to attend therapy as an indication of ability to work. Nor did some positive progress notes and mental status exams justify rejecting the treating source. The ALJ also relied too heavily on a consultative exam. Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. Apr. 6, 2022) The court affirmed the District Court decision under the pre 2017 opinion evidence regulations that applied in this case. It found the ALJ properly accorded lesser weight to the opinions of two treating physicians because one was conclusory and vague and the other, rendered in check-box format, was not supported by the medical evidence. And according to the court, both opinions as to the plaintiff’s tremors and sensory deficits were inconsistent with the medical evidence, which identified only mild tremors, and the plaintiff’s testimony. The court also agreed with the ALJ’s assessment that the opinion of the consultative examiner was entitled to even less weight. It rejected plaintiff’s argument that the ALJ could not make an RFC finding because she had declined to accord controlling weight to any of the medical opinions; the ALJ is entitled to weigh all available evidence to make RFC findings and her conclusion need not perfectly correspond with opinions of record. Finally, the court found that the ALJ’s failure to articulate the so-called Burgess factors for evaluating treating source opinions to be harmless error as it was evident she had applied the substance of the treating physician rule. Fields v. Kijakazi, 24 F.4th 845 (2d Cir. Jan. 28, 2022) The Court of Appeals held that the District Court erred in reducing attorney fees requested by plaintiff’s attorney, Binder & Binder, under 42 U.S.C. § 406(b), as a windfall. The Second Circuit, relying on its decision in Wells v. Sullivan (“Wells II”), 907 F.2d 367, 372 (2d Cir. 1990), and the Supreme Court in Gisbreath v. Barnhart, 535 U.S. 789, 808 (2002), held that to reduce a contingency fee solely on the grounds that the amount requested is a windfall, the court must be clear the fee was not earned by counsel. Here, the appeals court found that the plaintiff’s very experienced attorney represented him professionally, efficiently, and ultimately successfully in four ALJ hearings, several Appeals Council petitions, and two district court appeals. His request for a fee of $40,170, which was 25% of the plaintiff’s retroactive award, was not a windfall even though it constituted an hourly rate of $1,556.98 based on the 25.8 hours expended on representation in the federal court phases of the claims. Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022) The court remanded, finding the ALJ erred in failing to accord controlling weight to the opinion of the treating physician under the pre 2017 opinion evidence regulations that applied in this case. The court held the ALJ failed to find good reasons under the old regulations for discounting the opinion of a concussion specialist that the plaintiff would be off task 33% of the day and absent more than four days per month due to her headaches and other impairments. The ALJ also erred in discounting the opinion because it was presented in “check box” form; the opinion was supported by voluminous treatment notes. The court criticized the ALJ for “cherry-picking” particular instances of improvement to create inconsistencies with the treating source opinion. And it criticized the ALJ for relying too heavily on the opinions of consulting physicians, particularly where the consulting opinions did not address or dispute the crux of the treating source’s opinion. Alexander v. Saul, 5 F.4th 139 (2d Cir. July 8, 2021), cert. denied, 142 S.Ct. 1461 (Apr. 4, 2022) The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g). Sczepanski v. Saul, 946 F.3d 152 (2d Cir. Jan. 7, 2020) The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer. Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019) The Second Circuit remanded, finding the ALJ committed procedural error in failing to “explicitly” apply the factors laid out in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008), for evaluating treating source opinions. The court reiterated its mandate, rooted both in regulation and precedent, for ALJs to follow specific procedures and adequately explain their reasoning when assigning weight to opinions, citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013), Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004)(per curiam). It found the ALJ “cherry picked” the evidence, particularly mental status exam results, without attempting to reconcile longitudinal inconsistencies in this mental health claim. And it criticized the ALJ for relying too heavily on the opinion of the consultative examiner, citing Selian. Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019) The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not met his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching. Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015) The Court of Appeals remanded for consideration of a retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.” Greek v. Colvin, 802 F.3d 370 (2d Cir 2015) The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. "After all, SSA's regulations provide a very specific process for evaluating a treating physician's opinion and instruct ALJs to give such opinions 'controlling weight' in all but a limited range of circumstances. See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128." (Emphasis supplied.) McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014) The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s nonexertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ's hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations. The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling. Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013) The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand. In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed explicitly. Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013) The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records. The Court also held the ALJ’s RFC determination was not supported by substantial evidence. It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.” Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain nor depression was significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible. | | | | | |  | | | Andrea Sasala, said goodbye to the Disability Advocacy Program (DAP) recently after a respectable tenure at Long Island Legal Services. We spoke with the long-time DAPper to learn more about her time with DAP as she settled into her well-earned retirement. 1. What first drew you to DAP, and what motivated you to stay in this field throughout your career? I am an Amityville Dominican Sister who provided direct services (food, financial assistance, referrals) to the poor with generous, caring volunteers on Long Island. Nassau/Suffolk Law Services (now Legal Services of Long Island) was the resource for the multitude of legal problems my clients had. I am very grateful that my Congregation sent me to lLaw sSchool and that I was hired to work in the DAP Unit after graduation from Catholic University’s Columbus School of Law in D.C. in 1997. 2. In what ways do you feel you've grown or evolved as an advocate over the years? I came to DAP advocacy very familiar with agencies that help our clients and was comfortable with “begging” or making a case to get what our clients need. | | | That helped forge relationships with people responsible for providing medical appointments, medical records, medical treatment, and information to help me move client’s cases. Witnessing the genuine goodness of people in their response to requests to help has encouraged me and is the key to successful advocacy. I’ve also grown in my ability to understand and sometimes explain to clients their options for treatment of their medical problems. Medical problems are not experienced in isolation. Our clients need shelter, food, transportation and support during the confusing time of waiting for Social Security Benefits. So many of our clients have applied more than one time without understanding they can appeal a denial. | | | | | | | | End Note ________________________________________________________________________________________________________ | | ![]() | | | Does it ever feel like there are just so many lawyer jokes? Are you inundated with countless punchlines at your expense that never seem to go out of style? Well, it turns out that it’s not all in your head! Psychologist John Charles Simon provided Psychology Today with a two-part series explanation of why the legal profession often becomes a prime target for humor. There are several factors that make lawyer jokes ripe for the picking, but some key ingredients involve “familiarity” and the fact that nearly everyone knows a lawyer and can relate. Another ingredient is the “adversarial nature of lawyers.” | | | Legal work brings about the idea of opponents and competition, which opens the door for jokes as does the idea of “ethical complexity.” This belief is that the intersection of rules, morality, and power creates the right amount of complexity that fuels humor. Lastly, Simon argues, the idea that being a lawyer is often associated with a “high status” in society, which can even be an invitation for jokes! Suffice to say, maybe don’t feel bad the next time you find yourself to be the punchline of yet another lawyer joke. This just means you are considered familiar, high-profile, and often deal with complex situations – a source of admiration with a side of teasing. | | | | | | | | | | Disability Law News© Disability Law News© is published four times per year by: Empire Justice Center 1 West Main Street, Suite 200 Rochester, NY 14614 Phone: (585) 454-4060 The newsletter is written and edited by: Emilia Sicilia, Esq. Katherine Courtney, Esq. Ann Biddle, Esq. October 2025 issue. Copyright© 2025, Empire Justice Center All rights reserved. Articles may be reprinted only with permission of the authors. Available online at: www.empirejustice.org | | | | | | | | | |