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.

Brooklyn SSA Employee Arrested

From the Stamford Advocate:

A Social Security employee and three accomplices were awaiting arraignment yesterday in Brooklyn on charges alleging they formed an identity theft ring and stole tens of thousands of dollars in benefit payments from more than a dozen elderly and disabled beneficiaries.

The defendants used personal information from the Social Security Administration's computer system to steal the payments and other money from the beneficiaries between January 2004 and this month, officials said.

New Workload For SSA?

Senator Arlen Specter, the chairman of the Senate Judiciary Committee, has been working on an immigration bill that is expected to receive serious consideration this year. The "guest worker" provisions of the bill have attracted the most attention but the bill would also require employers to check an employee's name and Social Security number against a Social Security database. There are other signs that such a plan is coming. The House Social Security Subcommittee is holding a hearing on this issue of March 2. Social Security is looking for contractors to handle a name and Social Security number database, which it hopes to have available by May or June of this year, even though it is unlikely that it will be mandatory until at least next year.

If it is mandatory that employers check their employees' names and Social Security numbers against this database, Juan Rodriguez cannot work under a Social Security number that he picks at random, if that number belongs to someone not named Juan Rodriguez. The problem is that while there are millions of Juan Rodriguez's working under assumed Social Security numbers, there are tens of millions of Jane Smiths working under the Social Security numbers of Jane Jones, but Jane Smith and Jane Jones are the same person. Jane just never got around to informing Social Security that her name changed when she got married. Straightening out one of these cases is easy enough. Straightening out tens of millions of them in a short time period is a potential nightmare for the Social Security Administration.

Social Security Attorneys as Debt-Relief Agencies?

Often, bankruptcy is a reasonable consideration for Social Security disability claimants, because they are desperately poor and have huge medical bills hanging over their heads. However, the National Law Journal reports that the new bankruptcy act defines anyone who provides any bankruptcy assistance as a debt-relief agency. Debt-relief agencies are subject to dramatic limitations under the bankruptcy law. For instance, debt-relief agencies cannot counsel a debtor to incur additional debt -- and counseling a Social Security disability client to continue seeing their doctor would be to counsel a debtor to incur additional debt. Bankruptcy attorneys are warning that attorneys in other fields of the law who counsel their clients to consider bankruptcy may unwittingly become debt-relief agencies and subject to potentially dramatic penalties.

NOSSCR CLE Schedule Released

The National Organization of Social Security Claimants Representatives (NOSSCR), the largest organization of attorneys and others who represent Social Security claimants has posted the schedule for its Continuining Legal Education (CLE) Conference in Boston from April 5-8, 2006.

New ALJs Coming

People posting on the ALJ Improvement Board report that Social Security is going to hire a class of Administrative Law Judges (ALJs) this year and that the process has begun.

Problems At SSA As Congress Presses To Make It Even Harder For Aliens To Get Social Security Cards

The House Social Security Subcommittee has scheduled yet another hearing on Social Security's issuance of Social Security numbers. This hearing is set for March 2, 2006. The concern is that it should be more difficult for illegal immigrants to obtain Social Security cards. By making it more difficult to obtain Social Security cards, it would become more difficult for illegals to obtain work and remain in the U.S.

Meanwhile, new Social Security card procedures already put in place are causing serious problems. The National Council of Social Security Management Associations (NCSSMA) represents Social Security's front line managers. NCSSMA has recently written Linda McMahon, SSA's Deputy Commissioner for Operations, complaining of alarming problems at local Social Security offices with issuing new and replacement Social Security cards:

We are writing you today about many issues that have arisen in Field Offices concerning the new requirements for SS-5 [Social Security card] issuance. Although we understand and support the need for increased security with this process, there is no doubt that these changes have already added a significant workload to Field Offices. In many offices we are now seeing half the members of the public visiting us come in to obtain a new or replacement Social Security card. We are finding about one-third of those applicants need to return with additional documents. This is a key reason why walk-in traffic is up around 25% this year. We believe this impact will accelerate unless we take steps to improve the situation. ... Many managers and almost all Field employees dealing directly with the public on enumeration have noticed more anger and hostility from the public regarding the SS-5 documentation issues than all other workloads we handle including denied claims, overpayments, and cessation of benefits combined.