Proposed New Regulation

The Social Security Administration has published a Notice of Proposed Rule-Making (NPRM) on Medicare Part B Income-Related Monthly Adjustments. Here is the NPRM's description of the proposed regulation:

We propose to add to our regulations a new subpart, Medicare Part B Income-Related Monthly Adjustment Amount, to contain the rules we would follow for Medicare Part B income-related monthly adjustment amount determinations. The monthly adjustment amount represents the amount of decrease in the Medicare Part B premium subsidy, i.e. the amount of the Federal Government’s contribution to the Federal Supplementary Medical Insurance Trust Fund. This new subpart would implement section 811 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (the Medicare Modernization Act or MMA) and would contain the rules for determining when, based on income, a monthly adjustment amount will be added to a Supplementary Medical Insurance (Medicare Part B) beneficiary’s standard monthly premium. These proposed rules describe: what the new subpart is about; what information we would use to determine whether you would pay an income-related monthly adjustment amount and the amount of the adjustment when applicable; when we will consider a major life-changing event that results in a significant reduction in your modified adjusted gross income; and how you can appeal our determination about your incomerelated monthly adjustment amount.

State By State Stats

Social Security has released a set of state by state Social Security statistics, showing the numbers of people receiving benefits and the aggregate amounts received.

7th Circuit Reverses on 12.05(c)

The 7th Circuit Court of Appeals remanded in Mendez v. Barnhart because of strong evidence that Ms. Mendez met listing 12.05(c) for mental retardation. Social Security has interpreted this listing in increasingly stringent ways in recent years.

SSA Proposes To Make Optometrists Acceptable Medical Sources

Social Security has published a Notice of Proposed Rule-Making (NPRM) that would declare that optometrists are "acceptable medical sources" for disability determination. It will probably surprise many that optometrists were not already on this list.

Nwe Medical Equivalence Regulations

Social Security has published new regulations effective March 31, 2006 on medical equivalence, that is medical equivalence to the listings of impairments. The listings contain criteria for determining whether a claimant is clearly disabled by a particular disease or condition based solely upon medical evidence. Despite the often controversial nature of medical equivalence determinations, the new rules appear relatively non-controversial, even trivial, and attracted few public comments. As a result of the new rules, AR 00-2(7), which acquiesed to Hickman v. Apfel, 187 F.3d 683 (7th Cir. 1999), has been rescinded.

Upcoming Meetings and CLE

• March 2-3, 2006 Institute Of Continuing Legal Education in Georgia CLE, Atlanta, GA
• March 8, 2006 Philadelphia Trial Lawyers Association CLE, Philadelphia, PA
• March 24, 2006 NC Academy of Trial Lawyers CLE, Winston-Salem, NC
• March 24, 2006 Social Security Advisory Board Meeting, Washington, D.C.
  
• April 2-5, 2006 National Association of Disability Representatives Educational, Boston, MA
  
• April 5-8, 2006 National Organization of Social Security Claimants Representatives (NOSSCR) CLE, Boston, MA
• April 27, 2006 National Business Institute CLE, Milwaukee, WI
  
• May 16-19, 2006 National Association of Disability Examiners Meeting, Virginia Beach, VA
• May 16-19, 2006 National Association of Disability Examiners (NADE) Meeting, Jackson, MS
• May 17, 2006 Indiana CLE Forum, Indianapolis, IN
  
• May 19-20, 2006 Stetson University CLE, Tampa, FL
• August 10-11, 2006 Retirement Research Consortium, Washington, DC
• August 11, 2006 8th Circuit Social Security CLE, Omaha, NE
  
• September 16-21, 2006 National Association of Disability Examiners, San Diego, CA
  
• October 11-14, 2006 National Organization of Social Security Claimants Representatives (NOSSCR) CLE, Phoenix, AZ
• October 16-19, 2006 National Council of Social Security Management Association Meeting, Milwaukee, WI
• May 20-23, 2007, National Association of Disability Examiners Meeting, Stowe, VE
  

If you know of others, please e-mail me.

Interesting Eighth Circuit Decision

The Eighth Circuit Court of Appeals has issued an interesting decision in Maresh v. Barnhart, concerning SSA's mental retardation listings. If a claimant meets a listing, normally he or she will be found disabled. Social Security's interpretation of the mental retardation listing has become controversial in recent years. The Court held in Maresh that:

... the requirements in the introductory paragraph [of Listing 12.05] are mandatory. The overall introduction to the mental disorders section states: "Listing 12.05 contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing." Id at § 12.00.1 The cases Maresh cites are not to the contrary, because they do not discuss whether the introductory paragraph is mandatory. See Chunn v. Barnhart, 397 F.3d 667 (8th Cir. 2005); Jones v. Barnhart, 335 F.3d 697 (8th Cir. 2003); Sird v. Chater, 105 F.3d 401 (8th Cir. 1997). Under the plain language of the regulations a claimant must demonstrate or support onset of the impairment before age 22.

However, this court disagrees with the Commissioner that the Listing's introductory paragraph requires a formal diagnosis of mental retardation. The plain language of the Listing does not so state, and the Commissioner cites no supporting authority. This court also rejects the Commissioner's assertion that Maresh is not entitled to benefits, applying the definition of mental retardation in the Diagnostic and Statistical Manual of Mental Disorders–Fourth Edition (DSM-IV). In revising the Listings of Impairments in 2002, the Commissioner rejected a proposal that the DSM's definition be used for Listing 12.05. See 67 Fed. Reg. 20,022.

Thanks to Eric Schnaufer for his excellent up to date listing of Circuit Court decisions.

The End of February Is Here -- And No Regs

In December 2005, the Commissioner or those around her were confidently predicting to Nancy Shor, the executive director of the National Organization of Social Security Claimants Representatives (NOSSCR), that the final regulations on the Commissioner's proposal to revamp disability determination at SSA would be done "by the end of February, if not earlier." The end of February has arrived and no final regulations have appeared in the Federal Register. Of course, it is possible that SSA will deliver the final regulations to the Office of Federal Register by the end of the day or, at least, very soon. There is no way of knowing if the delay is due to the difficulties of sorting out all of the issues raised by the comments made on the proposal or whether the delay has to do with budget problems.