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SSAB Encourages SSA to Use Data to Access Equity

Posted on October 31st, 2022

The Social Security Advisory Board (SSAB) is a bipartisan, independent federal government agency established in 1994 to advise the President, the Congress, and the Commissioner of Social Security on matters of policy and administration of the Old-Age, Survivors, and Disability Insurance and the Supplemental Security Income programs. The Board has seven members, appointed by the President, Senate, and House of Representatives. Among its functions is analyzing the Social Security Administration’s (SSA’s) retirement and disability programs and making recommendations, including recommendations on the quality of services that SSA delivers to the public. In that role, the SSAB recently encouraged SSA to measure the impacts of service changes on different populations to inform program administration. See Using Evidence to Improve Service Equity (September 2022).


In its three-part paper, the SSAB reviewed federal management initiatives in the context of SSA. It described administration and agency priorities across customer experience, evidence, and equity. In December 2021, the Biden administration released an executive order (EO) on prioritizing customer experience. The EO required SSA to analyze all services that require original or physical documentation or an in-person appearance and recommend reforms where statutorily feasible. SSA was also directed to develop a mobile-accessible, online process so someone applying for or receiving services from SSA can upload any form, documentation, evidence, or correspondence without traveling to a field office. These changes should give SSA new and better data on how people interact with the agency over time. The Board encouraged SSA to examine the differences between people’s perceptions of the agency’s services and its performance metrics.


The paper also emphasized the Office of Management and Budget’s (OMB) 2021 emphasis on “learning agendas” to identify and prioritize strategies for answering critical policy questions relevant to the agency’s mission and operation. SSA published its learning agenda in March 2022, with six of its ten priority questions supporting the agency’s strategic goal to optimize customer service. The SSAB also reviewed the President’s and OMB’s executive orders (EO) to incorporate a comprehensive approach to equity in all planning. [President Biden’s EO and SSA’s reaction have been discussed in prior editions of this newsletter.]


In the second part, citing challenges faced by SSA during the COVID-19 pandemic, the SSAB noted significant downward trends in the numbers of people receiving benefits.  Disability (DI) awards fell 15 percent in 2021 after falling 11 percent in 2020. Supplemental Security Income (SSI) awards have fallen even more sharply – 27 percent in 2021 after falling 18 percent in 2020. [See the January 2021 edition of this newsletter for more on the decline in SSI applications.]  The SSAB encouraged SSA to review how barriers to non-in-person service affected access, quality, and perceptions among various population groups.  It recommended that SSA review, expand, and make public its research to examine how SSA’s program administration exacerbates or reduces existing disparities in its service delivery.


SSA needs to understand service channel preferences among the various populations served by the agency. Those channel preferences include on-line services such as mysocialsecurity, in-person field office service, 800 number and field office phone service, video services, mail services, and direct and third-party outreach. Each category presents challenges to some claimants, including lack of internet access or literacy, for example. SSAB recommended that before SSA implements any changes in service delivery, it should ensure it has collected the appropriate data to evaluate whether the service change affects how different people access and use its services.


Finally, the SSAB addressed opportunities SSA has to measure whether the intended impact of  its services is equitably distributed among the public. It acknowledged that assessing whether SSA provides services equitably is difficult when the agency does not comprehensively collect or publish program data by race, ethnicity, and other population characteristics that correlate with underserved populations. [See prior editions of this newsletter for further discussions of lack of SSA data.] While acknowledging that SSA is making slow progress with data exchanges and voluntary information to collect the data, it recommended that SSA also examine the share of service variations across socioeconomic groups that cannot be associated with observable applicant and case characteristics, such as individual LGBTQ+ communities and smaller racial and ethnic groups.


The SSAB made seven specific recommendations to SSA that are available in the report.


Spotlight on Marriage Penalties

Posted on October 31st, 2022

A recent article in The New York Times highlighted the barriers many recipients of Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) face if they want to marry. The article features a couple that met on-line, fell in love, and became engaged, only to endlessly postpone their marriage because Lori receives Childhood Disability Benefits (CDB) based on a diagnosis at age fifteen of disabling ankylosing spondylitis.


Current laws prevent disabled individuals eligible for CDB – also known as Disabled Adult Children or  DAC – from receiving benefits if they marry. A “child” may be eligible for benefits based on the account – or earnings record – of a dead, disabled, or retired parent in several circumstances, including if able to prove disability before age 22.  A long-time recipient of SSI, for example, may become eligible for Social Security Title II benefits without an earnings record of their own when a parent dies or retires. The claimant must, however, have become disabled before age 22 and be unmarried. See 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.351; POMS DI 10115.001.


What if the claimant was married but the marriage ended by divorce or annulment before the application for CDB? Under the Social Security Administration’s (SSA) byzantine rules, the claimant would be eligible. See POMS RS 00203.020. But the claimant would not be eligible if she had previously received benefits under the same wage earner’s account as, for example, a minor whose benefits terminated at age 18, became disabled before age 22, but married and divorced in between.  If, however, the marriage was annulled or void, entitlement might be possible. See POMS RS 00203.015. But if the claimant married another CDB recipient, she could be or remain eligible for CDB. See POMS RS 00203.035.


These exceptions, however, do not apply to the majority of current 1.1 million CDB recipients who, like Lori, want to get married. She and her fiancé cannot afford to lose her monthly benefits, or the Medicare coverage that is attached to her continued eligibility. Lori contacted Representative Jimmy Panetta, a Democrat in California’s 20th Congressional district. Earlier this year, he introduced the Marriage Equality for Disabled Adults Act, which includes a provision nicknamed “Lori’s Law” that would remove the marriage restriction. But according to Ayesha Elaine Lewis, a staff attorney with the Disability Rights Education and Defense Fund, while change at the federal level is “a real possibility…it will be a long and challenging journey.”


SSI recipients face similar challenges if they want to marry. Under SSI’s strict income rules, any income of their spouses would be “deemed” to them, which could make them ineligible for benefits. [See the April edition of this newsletter for SSA’s deeming guide.] And disabled SSI recipients in relationships are at risk of losing their benefits, and possibly their Medicaid, even if not married under SSI’s “holding out” provisions. Individuals are considered married for SSI purposes and thus subject to deeming rules if legally married or “living together in the same household and holding themselves out as a married couple to the community in which they live.”  See POMS SI 00501.150.


Remaining single remains the only viable option for many couples in these situations.


SCOTUS Amends the FRCP for Social Security Appeals

Posted on October 31st, 2022

The Supreme Court of the Unites States (SCOTUS) recently adopted amendments to the Federal Rules of Civil Procedure (FRCP) that will apply to appeals of Social Security claims. The new supplemental rules, which take effect on December 1, 2022, govern all stages of a federal court action under 42 U.S.C. § 405(g) and are meant to create a simplified, uniform procedure for the district courts to follow.


The current procedure allows each district court, all ninety-four of them, to establish local rules or standing orders governing Social Security appeals. The district courts decide the form of complaints, service, answers, motions, briefing and the timing for each stage. But a study by the Administrative Conference of the United States, a federal agency whose mission is to make government “work better,” showed a lack of relative uniformity throughout the United States. Instead, the districts’ rules vary widely.


Where the new rules conflict with local rules or standing orders, district courts will need to amend. For example, Rule 5 eliminates joint statements of fact “as the means of review on the administrative record,” which some district courts have required. Supplemental rules six through eight establish deadlines to file the plaintiff’s brief (within thirty days of the answer), the commissioner’s brief (within thirty days of the plaintiff’s brief), and the reply brief (within fourteen days of the commissioner’s brief). This change will effectively cut in half the timeframes established by some district courts, including in New York.


The new rules were proposed by the Judicial Conference of the United States. The Judicial Conference is comprised of the Chief Judge of the United States, chief judges from each circuit court of appeals, a district judge from each of the twelve geographic circuits, and the chief judge of the United States Court of International Trade. The Conference, created by Congress in 1922, promulgates policy regarding the administration of federal courts in the United States.


Based on the Administrative Conference’s recommendations, the Judicial Conference proposed supplemental rules that apply exclusively to Social Security appeals. According to the Conference’s Committee on Rules of Practice and Procedure, two questions needed to be answered: whether adopting uniform rules as opposed to allowing district courts to write their own rules was appropriate, and whether the benefit of uniform rules outweighed the presumption of trans-substantivity, i.e., the uniform treatment of all cases under the FRCP.


The Committee decided the benefits of uniform rules for Social Security cases outweighed local autonomy and trans-substantivity and, in August 2020, proposed supplemental rules for public comment. The Judicial Conference reported “modest” response to this request for comment; most district court and magistrate judges supported the new rules. The Conference noted, however, that the Department of Justice (DOJ) opposed based on the theory of trans-substantivity. Instead, the DOJ recommended the development of a model local rule. The National Organization of Social Security Claimants’ Representatives (NOSSCR) submitted comments to the Judicial Conference, emphasizing the need for local discretionary control instead of setting Social Security cases apart. NOSSCR noted there would be less of a need to file an appeal in federal court if SSA complied with their own policies at the administrative levels.


The rules were unanimously approved (the DOJ abstained from voting), adopted by the Supreme Court, and transmitted to Congress. See FRCP Amendments.


Jennifer Karr, Senior Statewide Attorney for DAP, participated in the Western District of New York(WDNY) committee that proposed changes to their Local Rule 5.5 to conform with the new supplemental rules. Other district courts throughout the Second Circuit are presumably making their own changes. Advocates are advised to check their local rules.


Will these changes result in an increase in requests for additional time to meet the new, strict filing deadlines? Please keep us informed of whether your district courts duly grant these requests, or of other challenges faced under the new rules.


Historic COLA Increase for 2023

Posted on October 31st, 2022

The Social Security Administration (SSA) announced a record-breaking cost-of-living adjustment (COLA) increase to Social Security and Supplemental Security Income (SSI) benefits for 2023. Monthly benefits will increase an astonishing 8.7 percent, the largest since 1981. Last year’s COLA increase was also a record-breaker at 5.9 percent.


The monthly SSI benefit rate will increase $73, from $841 to $914, compared to last year’s $47 increase. The SSI rate for couples will increase from $1,261 to $1,371. The SSI resource limits remain unchanged at $2,000 for individuals and $3,000 for couples. The New York State supplement (SSP) will continue at $87 for individuals and $104 for couples living alone; the living with others supplements remain at $23 and $46, respectively. We will post the 2023 New York State SSI benefit chart when it becomes available.


Social Security’s disability thresholds are also increasing. Substantial Gainful Activity (SGA) for Non-Blind workers will increase from $1,350 to $1,470 per month. The SGA for Blind workers increases from $2,260 to $2,460 per month. The Trial Work Period (TWP) threshold increases from $970 to $1,050 per month, and the Quarter of Coverage amount will increase to $1,640. The maximum taxable earnings for OASDI (old-age, survivors, and disability insurance) purposes will increase to $160,200 for 2023.


There is more good news for Medicare recipients. The Medicare Part B premium rate will decrease, from $170.10 in 2022 to $164.90 in 2023. Specific information about 2023 Medicare changes is available at www.medicare.gov.


These changes will take effect in January 2023, except for SSI recipients, who normally receive their benefits on the first of the month. Because January 1, 2023, is both a holiday and a weekend, they will receive their benefits two days early, on December 30, 2022! See SSA’s Fact Sheet on 2023 Social Security Changes.


New Faces Join DAP Statewide Support

Posted on October 31st, 2022

The Disability Advocacy Program (DAP) is welcoming new faces this fall, including new Senior Statewide Support Attorney Jennifer (Jenna) Karr of Empire Justice Center (Empire Justice).  Jenna started this September to replace Kate Callery.


As one of three Statewide Support Attorneys, Jenna 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 complex litigation.  More about the scope of all the services provided by the DAP State Support team is in the article below.


Jenna brings deep knowledge of Social Security law and subject matter expertise to her new role.  She has been providing direct representation to clients as part of the DAP Practice Group at Empire Justice since 2015.  Her prior legal work included DAP advocacy at the DAP unit of the Legal Aid Society of Northeastern New York from 2008 to 2012.  Her direct services work includes many federal court appeals.  As a supervisor at Empire Justice, Jenna has provided trainings to advocates internally and elsewhere, and she brings leadership on critical issues facing our clients. She is well-known to the DAP community, and has taken key roles in multiple initiatives, including the launch of a reentry outreach project, and a best practices workgroup with other DAP supervisors across the state.


Jenna will remain based in Western New York, in the Rochester office of Empire Justice. She joins fellow DAP Statewide Support Attorneys Emilia Sicilia of Empire Justice’s Yonkers office and Ann Biddle of the Urban Justice Center (UJC) in New York City.


Ann is a familiar face in the DAP community, well known as a DAP coordinator based at Legal Services NYC.  She now becomes a DAP Statewide Support Attorney through UJC.


As an organization, UJC is new to the Statewide Support side of DAP.  In July, UJC began providing state support services to DAP providers as a subcontractor to Empire Justice.  However, the organization has a long history of providing direct representation to DAP clients with mental health impairments, with significant impact litigation in the realm of disability benefits.  This includes a role as lead counsel in Amin v. Colvin, a lawsuit pending against the Social Security Administration (SSA) for its failure to docket non-disability appeals.  Prior impact litigation includes Padro v. Astrue, a class action against SSA for systematic denial of due process, and two class action lawsuits successfully challenging SSA’s policy of automatically denying and suspending benefits based only on a warrant: Martinez v. Astrue and Clark v. Astrue.


Looking ahead, DAP Statewide Support will also provide more opportunities for staff at DAP-funded programs to take on training roles, a development intended to increase inclusivity and diversity of DAP presenters, and to provide professional growth opportunities to advocates across the state.  We will continue to build community statewide, offering statewide trainings and meetings as well as occasional regional meetings.


DAP State Support at Empire Justice will add another new face this fall with the creation of a new Program Coordinator position.  Hiring remains underway for the position, hopefully before the end of the year.  This new position will be focused on data reporting and trainings.


Letter to OTDA Commissioner with Recommendations to Improve Fair Hearing Demonstration Project

Posted on September 14th, 2022

Empire Justice Center, The Center for Elder Law & Justice, New York Legal Assistance Group, Neighborhood Legal Services, Legal Aid Society of New York City, & Bronx Legal Services submitted a Letter to Commissioner Daniel W. Tietz with recommendations to improve the Fair Housing Demonstration Project on June 14, 2022.


Read the letter below or download PDF HERE.

VIA EMAIL on June 14, 2022
Daniel W. Tietz, Commissioner
New York State Office of Temporary and Disability Assistance
40 North Pearl Street, Albany, New York 12243


Re: Recommendations to Improve the Fair Hearing Demonstration Project


Dear Commissioner Tietz:

Thank you for meeting with us on March 30 to discuss OTDA’s remote fair hearing Demonstration project and the concerns and suggestions we sent in August 2021 and in our January 25, 2022 correspondence. Thank you also for sending the documents on April 13. As you requested, we write to provide a summary of our specific recommendations thus far.



Attached please find proposed edits to the notices listed below. We recommend that OTDA review all notices for reading level and edit the notices to be in plain language as much as possible. We did not make this change in the attached documents but we also ask that all notices be in an accessible format such as 14 font size and 1.15 spacing, using a sans serif format.1

  1. Fair Hearing Request Form – Fax or Mail
  2. Acknowledgment of Fair Hearing Request and Confirmation of Aid Status Notice
  3. Notice of Fair Hearing – We recommend creating two notices: one for a telephone hearing, and one for an in-person hearing.
  4. Notice of Telephone Hearing


Model Opening Statement

Attached please find our proposed edits to the model opening statement for telephone hearings.


Other Recommendations

  1. Increase capacity for the phone lines to ensure that callers more consistently reach staff and staff process hearing and aid continuing requests timely
  2. Train staff at the call center and all staff that process fair hearing requests.2
  3. Promptly clear the backlog of delayed fair hearings. Issue all decisions within 90 days of the fair hearing request3 or within 60 days of a SNAP fair hearing request.4
  4. Waive overpayments.
    1. In any fair hearing where aid continuing has been granted and the decision issued is not favorable to the appellant, the recovery of all aid continuing shall be waived if the fair hearing decision was issued more than 90 days from the date of a fair hearing request or more than 60 days from the date of a SNAP fair hearing request.
    2. In accordance with recent Food and Nutrition Service (FNS) guidance5:
      i. submit a waiver request to FNS to administratively waive pandemic-period agency error or inadvertent household error overpayments (including pandemic-period claims previously adjudicated);
      ii. revise the claims threshold for pandemic-caused over-issuances where the claims are not waived entirely;
      iii. fully implement the regulatory authority to terminate and write off claims for pandemic-period over-issuances; and
      iv. fully implement the regulatory authority to compromise unwaived claims based on financial hardship.
  5.  Create an affirmative opt-in to telephonic hearing for all hearing requests.a. Appellants who request a hearing by phone should be asked for their hearing venue preference (i.e., in person, telephone, video).
    b. Add an option to the online form to allow Appellants to select which hearing venue (i.e., in person, telephone, video) they prefer.
    c. Refer to our attached edits to the Fair Hearing Request Form – Fax or Mail.
  6. Implement a system that allows all ALJs to securely send, receive, exchange, and otherwise share documents in real-time with appearing parties for all phone and video hearings.
  7. Reissue 20 GIS TA/DC 097 and remind ALJs of the requirement that they must transmit Appellants’ documentary evidence to the Agency via encrypted email during the hearing. Also remind ALJs that it is not the responsibility of the Appellant to supply the Agency’s evidence packet to the ALJ.
  8. Add the option for a video hearing as allowed under OAH Transmittal 20-05/20 TA/DC097, dated October 16, 2020.
    1. Provide information on the video options that are currently being developed or considered and allow for advocate input.
  9. Provide training to ALJs on remote fair hearings. In our April 5, 2022 email we requested Word documents of trainings provided to ALJs regarding remote fair hearings. We are in receipt of the public transmittals sent on April 13, 2022. We urge OTDA to develop trainings for ALJs on remote fair hearings with the input of advocates. We suggest that these trainings include how to conduct a remote fair hearing with an interpreter and issues relating to credibility determinations in this context. Please also refer to our proposed edits to the model opening statement.
  10. In furtherance of OTDA’s Transparency Initiatives, provide data or reports produced by OTDA for monitoring the progress of the Demonstration and publish all data on OTDA’s website.6
  11. Provide the following data from March 12, 2020 through the present, and publish all reporting on OTDA’s website:7
    1. Number of hearings requested by county and issue
    2. Number of hearings conducted via telephone by county and issue
    3. Number of hearings conducted via telephone by county and issue
    4. Number of hearings conducted via video by county and issue
    5. Number of hearings conducted in person by county and issue
    6. Number of telephone hearings that have been defaulted by county and issue
    7. Number of in-person hearings that have been defaulted by county and issue
    8. Number of video hearings that have been defaulted by county and issue
    9. Number of telephone hearings in which the Appellant submitted evidence by county and issue
    10. Number of in-person hearings in which the Appellant submitted evidence by county and issue
    11. Number of video hearings in which the Appellant submitted evidence by county and issue
    12. Number of telephone hearings in which an interpreter was present by county and issue
    13. Number of in-person hearings in which an interpreter was present by county and issue
    14. Number of video hearings in which an interpreter was present by county and issue
    15. Number of telephone hearings in which the Appellant was unrepresented by county and issue
    16. Number of in-person hearings in which the Appellant was unrepresented by county and issue
    17. Number of video hearings in which the Appellant was unrepresented by county and issue

12. Improve hearings for LEP individuals by doing the following:

    1. Schedule all hearings for LEP individuals in-person and allow LEP Appellants to affirmatively opt-in to a phone hearing based on their preference.
    2. Provide advocates with any guidance OTDA or OAH has created specifically for interpreters at phone hearings so that advocates can make suggestions for improvements. If no guidance has been issued, create a working group to develop such guidance.
    3. Develop systems to ensure the interpreter is provided with the documents in advance of the hearing.
    4. Require agencies to translate common documents so LEP Appellants can respond to the agency’s evidence.
    5. Improve ALJ Phone Script: Please refer to the edited attached Model Opening Statement.

13. Provide a liaison to advocates on urgent and emergent fair hearing issues.

14. Continue to engage with advocates and stakeholders in developing and improving remote hearing practices and policies.

1 New York State Office of Temporary and Disability Assistance (OTDA) Annual Report (2021), available online at https://otda.ny.gov/resources/reports/OTDA-Annual-Report-2021.pdf.
2 This recommendation relates to a spate of recent cases where fair hearing requests were processed incorrectly, and aid continuing was wrongly denied by front line staff and later corrected by a supervisor.
3 18 N.Y.C.R.R. § 358-6.4; 42 C.F.R. § 431.244(f)(1)
4 7 C.F.R. § 273.15(c)
5 U.S. Department of Agriculture, Food and Nutrition Service, SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM (SNAP): RECIPIENT CLAIMS ADMINISTRATION CHALLENGES AS A RESULT OF RESPONDING TO THE COVID-19 PUBLIC HEALTH EMERGENCY, Nov. 10, 2021, available at https://fns-prod.azureedge.us/sites/default/files/resource-files/SNAP-claims-administration-flexibility-memo.pdf
6 Office of Temporary Disability Administration, GOVERNMENT TRANSPARENCY INITIATIVES REPORT, October 2021, available at https://otda.ny.gov/news/attachments/OTDA-Transparency-Initiative-Report.pdf.
7 This request models the fair hearing data provided in OTDA’s Annual Report, and supplements it with data related to the Demonstration. Office of Temporary Disability Administration , 2021 ANNUAL REPORT, available at https://otda.ny.gov/resources/reports/OTDA-Annual-Report-2021.pdf


We thank for you again for the opportunity to engage in these discussions. The telephonic hearing process and the ongoing delays in scheduling, issuing decisions and compliance are causing unacceptable harm to appellants throughout New York State. We continue to hear of ways in which the current system fails to uphold the due process rights of public benefit recipients and applicants. The initial recommendations set out in this letter are the first steps in remedying defects that have existed in the “temporary” system that has now been in place for over two years. Should OTDA move forward with any of these recommendations, this should not be construed as acceptance on behalf of the undersigned organizations that all issues with the demonstration project have been identified or resolved. OTDA must continue to engage with advocates and involve stakeholders in developing and improving remote hearing practices and policies.



Belkys Garcia, Staff Attorney
The Legal Aid Society
199 Water Street, 3rd Floor
New York, New York 10038

Susan C. Antos, Senior Attorney
Jessica Radbord, Senior Attorney
Empire Justice Center
119 Washington Avenue, Suite 301
Albany, NY 12210

Kelly Barrett Sarama, Supervising Attorney
Robert Neill, Staff Attorney
Center for Elder Law & Justice
438 Main Street, Suite 1200
Buffalo, New York 14202

Fiona Wolfe, Senior Attorney
Alexia Mickles, Staff Attorney
Empire Justice Center
One West Main Street, Ste. 200
Rochester, New York 14614
(585) 295-5736

Elizabeth Jois, Senior Staff Attorney
Abby Biberman, Senior Supervising Attorney
Rebecca Wallach, Supervising Attorney Evelyn Frank Legal Resources Program
New York Legal Assistance Group
7 Hanover Square, 18th Floor
New York, New York 10004

Paula Arboleda, Director of Health Advocacy
Jack Newton, Director of Public Benefits
Legal Services NYC
349 East 149th Street, 10th Floor
Bronx, New York 10451

GAO Finds SSA’s Treatment of Critical Cases Inconsistent

Posted on July 31st, 2022

The Government Accountability Office (GAO) has issued a report finding fault with the Social Security Administration’s (SSA’s) implementation of its policies for the expediting critical cases at the hearing level. See GAO-22-104191. The GAO found that SSA flags appeals as critical after determining the claimant’s health or financial circumstances, such as terminal illness or dire financial need, meet SSA’s criteria as set forth in HALLEX I-2-1-40. But the cases are not always identified or expedited.


“Critical” cases include “TERI” cases, or those where a claimant’s illness is identified as terminal; VAPT, or Veteran 100 Percent Permanent and Total; MC/WW, or Military Casualty/ Wounded Warrior Case; CAL, or those cases identified as Compassionate Allowances per POMS DI 11005.604; DRND, or Dire Need Cases, where a claimant may be without food, education, or shelter; or Potentially Violent, where there is an indication the claimant is suicidal, homicidal, or potentially violent. Hearing offices flag critical cases for expedited processing based on evidence that the above criteria are met. Receiving a flag does not ensure that the claim will be approved, only that it should receive expedited processing.


The GAO found that while hearing offices consistently processed critical cases faster than non-critical cases between 2010 and 2020, the wait times varied depending on when the case was first flagged. Cases that arrived at hearing offices already flagged were processed more quickly than those first flagged at the hearing office – a median of 201 days versus 351. The GAO also found that although SSA may have initially identified a case as dire, such designations do not always trigger expedited processing unless and until it is also “flagged” by the hearing office as fitting into one of the HALLEX categories. For example, only 28.5 percent of cases with a homelessness designation also had a critical case flag and selected for expedited processing. Finally, the GAO found that even though SSA policy does not require claimants to provide documentation of dire financial need, some hearing offices required documentation before expediting claims.


The GAO recommended that SSA review the requirements for documentation of dire need for consistency and examine its handling of cases indicating critical need to ensure they are expedited in accordance with policy. SSA agreed with these recommendations.


EMs Issued on Same Sex Marriages

Posted on July 31st, 2022

The Social Security Administration (SSA) has issued two Emergency Messages (EMs) implementing court decisions requiring payment of benefits to survivors of same-sex relationships who were unable to marry prior to the number-holder’s death due to an unconstitutional state law prohibiting same-sex marriage.


EM-21007 REV 2 provides instructions for handling claims, appeals, and reopening requests based on the decision in Thornton v. Commissioner of Social Security, 2:18-cv-01409-JLR (W.D. Wash.). A nation-wide class action, it prohibited SSA from denying benefits without determining whether the survivors of same-sex relationships would otherwise be eligible for widow(er)’s benefits but were prevented from marrying prior to November 25, 2020. The EM provides a series of questions, as well as examples, to help adjudicators establish whether the couple would have been married but for the unconstitutional state law.


EM-20046 REV 5 implements Ely v. Saul, No. CV-18-0557-TUC-BGM (D. Ariz.), which prohibits SSA from denying benefits to the surviving spouse of a same-sex ceremonial marriage who would otherwise be entitled to widow(er)’s benefits but for the nine-month marriage requirement of 42 U.S.C. § 416(c)(1). SSA must consider whether the couple would have been married sooner but for an unconstitutional state law that prohibited same-sex marriage. This EM also provides guidance for evaluating the circumstances that prevented the couple from meeting the nine-month duration requirement, including examples.


Lambda Legal, along with local firms, litigated the claims that resulted in these EMs, which have had a profound effect on surviving spouses who would otherwise be without these important benefits. The New York Times profiled Helen Thorton, one of the plaintiffs, who had been with her spouse for thirty years but was unable to marry her before she died in 2006, six years before Washington State made same-sex marriage legal in 2012. Ms. Thorton, who had struggling financially on just her own retirement benefits, had her income nearly double when the litigation was settled. And she received a retroactive award of $72,000 for the years that SSA had denied her application. Similarly, Anthony Gonzalez was finally able to marry his partner in New Mexico in 2013, as soon as same-sex marriage was legalized. But his spouse died six months later. In financial straits, Mr. Gonzalez applied for but was denied widower’s benefits based on the nine-month marriage requirement. His experience was cited in the Ely. He is now receiving survivor’s benefits and received a substantial retroactive payment.  


Lambda Legal encourages surviving same-sex partners to apply for benefits if they might be eligible. It has posted information to guide applicants.


Ukrainian Refugees May Be Entitled to SSI

Posted on July 31st, 2022

President Biden signed the Additional Ukrainian Supplemental Appropriations Act on May 21, 2022, which allows citizens, nationals, or residents of Ukraine paroled to the United States between February 24, 2022, and September 30, 2023, to receive Supplemental Security Income (SSI) benefits if otherwise eligible for seven years. Sponsor deeming will not apply.  These provisions comport with SSI eligibility provisions for refugees and asylees.


See the Immigrant Eligibility for Public Benefits in New York State chart that maps out noncitizen eligibility for a number of federal and New York State benefits, prepared and updated by the Empire Justice Center and New York Immigrant Coalition. See also the April edition of this newsletter for details on potential SSI eligibility for Non-Special Immigrant Parolees from Afghanistan under Section 2502 of the Afghanistan Supplemental Appropriations Act, 2022.


SSA Updates Guidance Regarding Transgender Individuals

Posted on July 31st, 2022

The Social Security Administration (SSA) has issued guidance for processing requests for Social Security numbers (SSNs) by transgender individuals. According to a press release issued on March 31, 2022, by Acting Commissioner Kilolo Kijakazi, the agency anticipates that SSA will allow people to self-select their sex on SSNs application in the fall of 2022. SSA’s systems, however, do not accommodate a sex designation other than M or F. Therefore, applications for original SSNs still must include a binary designation (M or F). The agency is exploring possible future policy and systems updates to support an “X” sex designation for the SSN card application process.


In the meantime, people who want to update their sex markers will need to apply for replacement SSN cards, even though SSN cards do not include sex markers. They will still need to show a current document to prove their identity, but they will no longer need to provide medical or legal documentation of their sex designation once the policy change becomes effective.  Emergency Message (EM)-22005 provides instructions for acceptance of evidentiary documents with a non-binary or unspecified sex designation, such as an X, instead of M for male and F for female in requests for Social Security numbers (SSNs). According to the EM, documents should not be rejected solely because of a non-binary or unspecified sex designation.


In late January 2022, SSA also issued POMS GN 00203.008 – Interviewing Transgender Individuals. In addition to providing general background on transgender identity and gender transition, the POMS reminds interviewers to “provide sensitive service to all individuals, and treat them with dignity and respect.” Interviewers should protect confidentiality of the individual; ask only questions necessary to complete the transaction; use the name and pronouns appropriate to the individual’s self-identified gender, even if the person has not changed his or her name or updated his or her records; and be aware that the individual’s gender transition is a personal matter. Questions or comments regarding a person’s medical treatment and appearance are inappropriate.