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Disability Law News - April 2017 Issue


Articles in this Issue

New SSRs Issued, Others Rescinded
April 28, 2017
In the past several months, the Social Security Administration (SSA) has promulgated a flurry of new regulations, ranging from new mental impairment, neurological, and HIV listings, to new rules for evaluating opinion evidence. Read More

No More Barcodes?
April 28, 2017
Advocates registered with Appointed Representative Services (ARS) know the advantages of being able to access clients’ file through Electronic Records Express (EXE). They probably also know the frustration of getting bar codes from ODAR hearing offices – and labeling and uploading records. Read More

Limited SSI Applications Now On-Line
April 28, 2017
The Social Security Administration (SSA) has allowed Title II claimants to file applications for benefits on-line for several years. It has finally extended this privilege to Title XVI – or Supplemental Security Income (SSI) applications – but only in limited situations and effective March 25, 2017. Read More

NICS Background Check Regs Rescinded
April 28, 2017
In light of the new administration’s threats to claw back Obama era regulations, advocates wondered how SSA’s year-end flurry of new regulations would fare. Most of the regulations issued at end of Acting Commissioner Colvin’s term have survived, for better or worse. Read More

Five-Day Rule Coming Soon
April 28, 2017
The January 2017 edition of this newsletter summarized SSA’s “program uniformity” rules, published on December 16, 2017. The new regulations, among other things, close the hearing record five days before the hearing and require seventy-five days’ notice of the hearing. Read More

Recent POMS Changes May Affect Vets
April 28, 2017
Several years ago, SSA made substantial revisions to POMS governing evaluation of past relevant work (PRW). See POMS DI 25005.000, et seq. SSA recently revised POMS DI 25005.020 - Past Relevant Work (PRW) as the Claimant Performed It. Read More

HALLEX Guidance on Bench Decisions Issued
April 28, 2017
In November 2017, presumably as part of the Office of Disability Adjudication and Review’s (ODAR) efforts to reduce its growing hearing backlog, SSA revised HALLEX provisions governing the issuance of “bench decisions.” See HALLEX I-2-8-19 - Oral Decisions on the Record (Bench Decisions). Read More

New Medical Evidence Regs Corrected
April 28, 2017
As noted elsewhere in this newsletter and described in detail in the January edition, SSA published new regulations regarding the evaluation of opinion evidence on January 18, 2017, effective on March 27, 2017, in claims filed on or after that date. Read More

Washington Post Article Refuted
April 28, 2017
The Washington Post recently joined the chorus of critics of the Social Security disability program. It published an article entitled “Disabled or Desperate?” about the dilemma faced by many working-age adults in rural communities who, according to the article are foregoing work—albeit it scare—to apply for disability benefits in record numbers. Read More

Treating Physician Rule Still Reigns
April 28, 2017
The treating physician rule was the basis for the Second Circuit’s recent summary order in Gavazzi v. Berryhill, 2017 WL 1400456 (2d Cir. Apr. 19, 2017). The case was commenced before the treating physician regulations were decimated. Read More

Comparative Standard Reiterated
April 28, 2017
The Second Circuit, in the summary order Hathaway v. Berryhill, 2017 WL 1380549, at *1 (2d Cir. Apr. 18, 2017), discussed the Continuing Disability Review (CDR) standard under 42 U.S.C. § 421, where an individual may be determined to be no longer entitled to disability benefits. Read More

Appeals Council Guilty of "Bait" and "Switch"
April 28, 2017
Timeliness of an appeal was addressed by the Court of Appeals for the Seventh Circuit in Casey v. Berryhill, 2017 WL 398309 (7th Cir. Jan. 30, 2017). The Social Security Administration (SSA) had denied the plaintiff’s request for a waiver of an overpayment, so he requested review from the Appeals Council. Read More

Court Order Remand to Different ALJ
April 28, 2017
Attorney Ruth Alexrod, of Axelrod & Gottlieb in New York City, convinced U.S. Magistrate Judge Paul Davison that Administrative Law Judge (ALJ) Seth Goldman’s conduct warranted remand to a different ALJ. DeMota v. Berryhill, 2017 WL 1134771 (S.D.N.Y. March 24, 2017). Read More

Court Rejects Boilerplate Credibility Assessment
April 28, 2017
In a recent decision from the Western District of New York, U.S.D.C. Judge Charles Siragusa rejected the ALJ’s use of the “oft-criticized” phrase that claimant’s “statement concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” Read More

Claimant Prevails in CDR Appeal
April 28, 2017
Advocates may be seeing in uptick in the number of claimants facing Continuing Disability Reviews (CDRs). Despite decreased funding for other essential work, Congress has continued to fund “program integrity,” which includes CDRs. Read More

Advocate Focuses on Human Factors to Win Claim
April 28, 2017
Jessica Woodhouse, an attorney with the Bath office of LawNY, not only won her first appeal, but won it with an “on the record” (OTR) decision. Read More

What Does It Take To Get A Decision?
April 28, 2017
Advocates and claimant know well the frustration of waiting years for hearings to be scheduled and decisions issued in disability claims. Advocates representing claimants in non-disability claims face similar frustrations – usually waiting to get a decision at all. Read More

When Is A Couple Not A Couple?
April 28, 2017
Many individuals living together as couples are improperly categorized as “holding out as married” by SSI under 20 C.F.R. § 416.1806. As a result, some claimants are considered ineligible for benefits if the couple’s combined income exceeds the statutory limit. Read More

SNT Found To Be Exempt
April 28, 2017
Michelle Spadafore of NYLAG worked her magic in another non-disability claim involving a 59 year old man with an intellectual disability who faced a termination of his SSI benefits and a substantial overpayment when SSI discovered a Special Needs Trust (SNT) in his name. Read More

SSA OIG Issues Report
April 28, 2017
The Social Security Administration’s (SSA) Office of the Inspector General (OIG) issued a report in February 2017 to determine whether the Office of Disability and Adjudication and Review (ODAR) timely processed its pre-effectuation reviews (PER) of favorable hearing decisions. Read More

Web News - April 2017
April 28, 2017
Guidance for Same Sex Couples Seeking SSA Benefits; New Website for Veterans and Volunteer Attorneys Available; Benefits Checklist for Older Adults in NYS Updated; NY Attorney General Issues Tenant Rights Information Read More

End Note - April 2017
I'm Sorry, But...
April 28, 2017
You might say “I’m sorry” countless times a day without really thinking about it, but it is not so easy when it comes to actually apologizing. 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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