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Disability Law News - June 2013 Issue

 

Articles in this Issue

How Will DOMA's Demise Affect SSA?
July 15, 2013
On June 27, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which denied married same-sex couples over 1,000 federal rights and privileges available to opposite-sex married couples under federal law. The majority opinion, authored by Justice Anthony Kennedy, held DOMA unconstitutional as a violation of the Fifth Amendment’s Due Process Clause, which applies equal protection guarantees against the federal government. Read More

Foreclosure Guidance Provided
July 15, 2013
Millions of homeowners are still struggling to avoid foreclosure. Added to the stress of refinancing, or worse yet, moving out of one’s home after foreclosure, are questions about how the foreclosure or move might affect a client’s continued receipt of SSI benefits. Is the home still an excluded resource? Will it be counted as a resource if the client has to move? Will the client be charged with the dreaded ISM (in-kind support and maintenance) if he or she continues to live in the property but is no longer making payments on the mortgage? Read More

DSM-5 Released
July 15, 2013
The long awaited fifth revision of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders has finally been published. Years in the writing and mired in controversy even before its release, the DSM-5 is the latest version of the “bible” of the psychiatric field. Read More

New VTC Restrictions Proposed
July 15, 2013
In the last edition of this newsletter, we celebrated the demise of the “Secret ALJ” policy, under which the name of the Administrative Law Judge assigned to a case was not revealed until the moment the hearing began. Read More

SSA Issues POMS on Transgender Matters
July 15, 2013
Effective June 13, 2013, two new POMS sections announce SSA’s latest policies for serving transgender individuals. POMS GN 00203.00 defines a transgender individual as an individual who has a gender identity that is different from the sex identified in his or her original birth certificate. Read More

Final Garnishment Rule Issued
July 15, 2013
Five federal agencies, the Department of the Treasury, SSA, Department of Veteran’s Affairs, Office of Personnel Management and the Railroad Retirement Board, jointly issued a final rule governing the garnishment of certain Federal benefit payments that are directly deposited to accounts at financial institutions. 78 Fed. Reg. 32099 (May 29, 2013). Read More

Growth Impairment Listing Changes Proposed
July 15, 2013
SSA announced proposed rules to change several listings related to growth impairment or weight loss in children. 78 Fed. Reg. 30249 (May 22, 2013). Read More

Visual Disorders Listings Revised
July 15, 2013
The Social Security Administration (SSA) issued final rules revising the Visual Disorders Listings (2.00) on March 28, 2013, with an effective date of April 29, 2013. The revised rules are expected to be in effect for five years unless SSA changes them sooner. Read More

Who's Calling, Please?
July 15, 2013
Newly promulgated regulations sanction the use of telephonic testimony at hearings. As part of SSA’s “continual efforts to handle workloads more effectively and efficiently,” Administrative Law Judges (ALJs) may determine how any person who is not a party to a hearing will appear, whether in person, by video teleconferencing (VTC), or by telephone. “Person” includes medical and vocational experts. Read More

Criminal Background Checks for Rep Payees Required
July 15, 2013
Criminal background checks will soon be part of SSA's process for reviewing rep payees and payee applicants. Read More

Priced Out in 2012: SSI Recipients Cannot Afford Housing
July 15, 2013
Priced Out in 2012 is a study released by the Consortium for Citizens with Disabilities (CCD) Housing Task Force and the Technical Assistance Collaborative (TAC) that details the current affordable housing crisis plaguing the nearly 4.8 million individuals with disabilities who rely on SSI benefits. In 2012, the average SSI recipient would have to pay about 104% of his or her monthly income in order to rent a modest one bedroom apartment and about 90% to rent a studio or efficiency unit. Read More

Pediatricians Support SSI Program
July 15, 2013
Children’s SSI has long been the subject of attacks by the media and some members of Congress. Now two concerned pediatricians have come to the defense of the program. James Perrin, a professor at Harvard Medical School, and Ellen C. Perrin, a professor at Tufts Medical Center, argue that “SSI for children is one of the best-suited programs to help respond to the rise in disability among children.” Read More

SSA "Waterfall" Chart Available
July 15, 2013
Think you have been seeing lots of affirmances these days at all levels of review? You are probably not imagining things, given the figures published in SSA’s “Fiscal Year 2012 Workload Data: Disability Decisions.” Read More

U.S.Supreme Court Denies Certiorari in Cage
July 15, 2013
The Supreme Court recently refused to review Cage v. Commissioner of Social Security, 692 F.3d 118 (2d Cir. 2012), cert denied, 570 U.S. --- (U.S. June 24, 2013). The Court of Appeals for the Second Circuit had ruled in Cage that the claimant has the burden of proving materiality in claims involving drug and alcohol addiction (DAA). It also found that the ALJ’s decision was based on substantial evidence despite that fact that there was no medical opinion as to materiality. Read More

Court Orders Benefits in Childhood Diabetes Case
July 15, 2013
U.S. District Judge David Larimer of the Western District of New York recently ordered the calculation of benefits in a case involving the childhood diabetes listing. He determined that substantial evidence did not support the ALJ’s finding that the child’s diabetes did not meet Listing 109.08(B). Read More

Despite Objections, Court Reverses SSA and Awards Kids' SSI
July 15, 2013
You would never know that only three percent of Federal Court decisions result in outright reversals for payment of benefits. (See chart on page 10). In another excellent decision, this time from the Northern District of New York, the Court ordered a remand for calculation of benefits. Read More

New Evidence Warrants Federal Court Remand
July 15, 2013
In another children’s SSI case, District Court Judge Matsumoto from the Eastern District of New York agreed that new evidence submitted to the Appeals Council required a remand for the Administrative Law Judge (ALJ) to consider such evidence. The District Court found that the evidence satisfied the test of being new and material, and the plaintiff showed good cause for failing to present the evidence during earlier proceedings. Read More

Senior Attorney Adjudicator Program Reviewed
July 15, 2013
A report by SSA’s Office of the Inspector General (OIG) issued on June 28, 2013, reviews the effect the Senior Attorney Adjudicator (SAA) Program has had on productivity and timeliness of hearing-level workloads. Read More

Perseverance Pays Off
July 15, 2013
Ellen Rita Heidrick, Supervising Attorney at the Bath office of LawNY, does not give up easily. Her recent “on-the record” victory in a longstanding appeal demonstrates her powers of perseverance. Read More

ALJ Agrees That Claimant Meets Listing 12.04
July 15, 2013
LJ Fisher, an attorney with the Empire Justice Center in Rochester, convinced an ALJ that her client’s depression met Listing 12.04 as of her alleged onset in 2010, despite the fact that the client did not begin seeing a mental health provider until April 2013. Read More

ALJ Training Materials Available
July 15, 2013
Advocates have noticed that ALJs have been quick these days to limit vocational testimony, particularly as to local numbers of available jobs. Why the change? The ALJs went back to school. Read More

Web News - June 2013
July 15, 2013
SSA Help Desk Gets Underway; Health and Consumer Information Available in Spanish; List of Pooled SNTs Online; New App Simplifies Health Care Searches Read More

End Note - June 2013
Got Those Caffeine Jitters?
July 15, 2013
Who hasn’t experienced sleepiness, crankiness, or headaches after missing a morning dose of caffeine? And conversely, who hasn’t had the jitters from too much coffee? OK, maybe there are some purists – or decaf zombies – among us. But for the rest, you might have been experiencing a mental health disorder. Read More

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