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Disability Law News - December 2015


 

Articles in this Issue

SSA Pays "un-COLA" for 2016
January 12, 2016
The Social Security Administration (SSA) uses the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) to annually adjust benefits paid to Social Security beneficiaries and Supplemental Security Income (SSI) recipients. As there was no increase in the CPI-W from the third quarter of 2014 to the third quarter of 2015, SSA announced a “diet COLA” (cost-of-living-adjustment) for 2016 with no increase in monthly benefits. Read More

Questions for DDD?
January 12, 2016
The inner workings of New York’s Division of Disability Determinations (DDD), the division of OTDA with which the Social Security Administration (SSA) contracts to make initial disability determinations, can seem mysterious. Read More

SSA Improves Non-Disability Form
January 12, 2016
Advocates and claimants know all too well the frustrations of tracking non-disability appeals. Requests for waivers of overpayments, requests for reconsiderations of overpayments, living arrangements, or resource determinations, for example, seem to languish in district offices interminably. And suspensions of benefits pending appeal are often instituted, despite timely requests for continued benefits. Read More

SSA Studies Possible Changes to Grid
January 12, 2016
In the September edition of this newsletter, we reported on the Social Security Administration’s (SSA’s) ANPRM (Advanced Notice of Proposed Rulemaking). SSA sought comments on how it should consider the vocational factors of age, education, and work experience in determining disability. Read More

Workers' Comp Offset Continues Until Full Retirement Age
January 12, 2016
Until recently, the offset (reduction) of Social Security Disability Insurance (SSDI) benefits paid to a claimant who is also receiving Workers’ Compensation benefits ended when the claimant reached age 65, and SSD benefits converted to retirement benefits. Read More

SGA Does Not Bar SSI Approval
January 12, 2016
What happens when you discover your client had earnings over the substantial gainful activity (SGA) level during at least five of the many months she was waiting for her SSI hearing? Read More

Are VTC Hearings on the Rise?
January 12, 2016
It is no secret that the Social Security Administration (SSA) wants to increase the number of hearings held by video teleconferencing (VTC). As reported in the September 2014 edition of this newsletter, SSA issued new regulations limiting a claimant’s right to object to VTC. Read More

Appeals Council Issues Fully Favorable Decision
January 12, 2016
If at first you don’t succeed, try and try again. That was apparently the mantra of Rochester attorney Jere Fletcher in a case where the Appeals Council—on reviewing the second denial by the ALJ subsequent to a stipulated sentence six remand from the Second Circuit—finally saw the light. Read More

ALJ Applies Collateral Estoppel to Approve Claim
January 12, 2016
Collateral estoppel is not just an arcane theory you had to learn during law school in Civil Procedure class. Victoria Esposito of the Legal Aid Society of Northern New York successfully relied on it to win back her client’s SSI benefits. Read More

Read That Appeals Council Remand Order Carefully
January 12, 2016
When cases are remanded from the federal district court and a new hearing is held before an Administrative Law Judge (ALJ), the ALJ's decision: Read More

Searching for VE Tips?
January 12, 2016
Cross-examining a vocational expert (VE) is one of the most challenging parts of our work. Administrative Law Judges (ALJs) always seem to be learning new tricks. Read More

ALJ Productivity Drops
January 12, 2016
According to SSA’s Office of the Inspector General (OIG), ALJ productivity dropped between 2010 and 2015. After reaching an average high of 2.42 dispositions per day in Fiscal Year (FY) 2011, daily dispositions dropped to 2.07 in 2014, with a slight rise to 2.10 in FY 2015. Read More

Second Circuit Strikes Again
January 12, 2016
In September, we reported with glee on a favorable treating physician decision from the Second Circuit—Greek v. Colvin, 802 F.3d 370 (2d Cir. 2015). Now, thanks to the same Geneva law firm of McDonald & McDonald, we have another helpful precedential decision. Read More

Court Issues Two Remand Orders
January 12, 2016
The Court of Appeals issued two helpful, if non-precedential summary orders. Vocational experts (VEs) appear far more routinely than they used in disability appeals. But there are still those increasingly rare cases where the AJ relies on the Medical-Vocational Guidelines (the “grid”) to deny a claim without vocational testimony. Read More

Held Lawsuit Appealed
January 12, 2016
Held v. Colvin, filed as a nation-wide class-action lawsuit in the United States District Court for the Central District of California, challenged SSA’s continuing to issue benefits as if the recipients were single even after the Windsor decision struck down the Defense of Marriage Act (DOMA). Read More

Kid's SSI Case Remanded for Further Proceedings
January 12, 2016
Congratulations to Michael Hampden of the Partnership for Children’s Rights in NYC. He recently obtained a remand in Garcia o/b/o S.H.S. v. Colvin, 2015 WL 7758533 (S.D.N.Y. Dec. 1, 2015). Mike hopes the decision will be useful in future kids’ cases in a number of ways. Read More

District Court Remands to Correct Erroneous Severity Finding
January 12, 2016
DAP Attorney Shubh Nigam McTague recently left the Legal Aid Society of Northeastern New York (LASNNY) to pursue other legal work. Before she left, she wrote a federal court brief that paid off big dividends in an excellent decision from Judge Hurd, Melendez v. Colvin, reported at 2015 WL 5512809 (N.D.N.Y. Sept. 16, 2015). Read More

Pro Se Claimants Get Second Chance in District Court
January 12, 2016
We recognize the good work private attorneys do in Social Security cases. One of these, Mark Schneider from Plattsburgh, recently prevailed in two federal court cases where the claimants had appeared pro se at the administrative hearing. Read More

EAJA Rates Updated
January 12, 2016
Successful litigators no longer have to wait for the Office of General Counsel to update the federal EAJA (Equal Access to Justice Attorney Fee) rates. Thanks to Gene Doyle of People Organized for Our Rights, Inc. (P.O.O.R.), we now have ready access to the current rates, adjusted for inflation. Read More

SSA Studies Childhood CDR Rates
January 12, 2016
A recent study by the Social Security Administration’s (SSA) Office of Retirement and Disability Policy concludes relatively few former childhood recipients return to the SSI roles later within ten years of a cessation of benefits. As a result, more CDRs (Continuing Disability Reviews) are in order. Read More

Web News - December 2015
January 12, 2016
New CMS Site Helps with Medicare Enrollment Words Matter: Resource for Better Communication How Does Your Internet Speed Compare? Read More

End Note - December 2015
Sorry I'm Late...
January 12, 2016
Do you suffer from planning fallacy? This may be one excuse for those of us who are chronically late. According to recent articles in the Wall Street Journal, that little known concept is described as a strong tendency to underestimate task completion. And it is a difficult behavior to change, despite the many disincentives and punishments out there for being late. Read More

Bulletin Board
September 27, 2010
The "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. Read More

Bulletin Board
October 31, 2017
Astrue v. Capato; Shalala v. Schaefer; Lesterhuis v. Colvin; Talavera v. Astrue Read More

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