On the Move

Next month our office will be moving to a new larger office located at 2401 Broad Street, Chattanooga, TN.


Patrick A. Cruise Named to Million Dollar Advocates Forum

Million Dollar Advocates Press Release

Social Security Disability: Mild Mental Retardation

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05.  Section 12.05 provides that the required level of severity for mental retardation is met with “a valid verbal, performance, or full scale IQ of 59 or less.” “The Secretary . . . expressly singled out individuals with Mild Mental Retardation for special treatment in determining entitlement to disability benefits.”  Brown v. Secretary of Health and Human Services, 948 F.2d 268 (6th Cir. 1991).  Per Listing 12.05, the claimant must prove that he exhibited significantly sub average general intellectual functioning with deficits in adaptive functioning that initially manifested during the developmental period (before age 22).  However, “there is a presumption that mental retardation is a condition that remains constant throughout life.”  Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001).  Thus, a claimant “need not present evidence that she manifested deficits in adaptive functioning prior to age 22 when she had offered evidence of low IQ test scores after age 22.” Id.   The requirement that mental retardation or low IQ beginning before age 22 is met when nothing in the record reflects an incident in which the claimant suddenly became mentally retarded.  Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992).  In other words, the claimant is entitled to a presumption that his intellectual limitations began before age 22.

If a claimant satisfies the listing criteria he is to be found disabled per se.  Todd v. Apfel, 8 F.Supp.2d 747, 754 (W.D. Tenn. 1998); Johnson v. Sec’y of Health & Human Services, 794 F.2d 1106 (6th Cir. 1986).  A claimant who is not currently engaged in substantial gainful activity who has an impairment that meets or equals a listing is entitled to disability benefits.  Durham v. Apfel, 34 F.Supp.2d 1373, 1381 (N.D. Ga. 1998).  Even if the claimant worked previously with the severe impairment that meets or equals a listing, he/she is still entitled to a finding of disability.  Id.

“A claimant whose impairment meets a listing is disabled when not working, even if he or she worked in the past with the impairments, and even if he or she could return to his or her past work.”  Ambers v. Heckler, 736 F.2d 1572, 1576 (11th Cir. 1985).  As succinctly stated by the 6th Circuit, “if a claimant is not engaged in substantial gainful activity and also validly meets a listing, the Secretary must find claimant disabled without regard to residual work capacity, age, education, or experience.  It is not correct under the regulatory scheme to find that a claimant satisfies a listing but is nonetheless able to work.”  Johnson v. Secretary of Health and Human Services, 794 F.2d 1106 (6th Cir. 1986).

If you need assistance with your disability claim, call Patrick Cruise at The Hamilton Firm.

How does an LTD Carrier Recover an Overpayment?

Can a long term disability carrier bring suit against a claimant to recover an overpayment through ERISA?  The answer to this question has been the subject of many cases, with conflicting results.  The normal fact pattern that brings about this situation is as follows:  The claimant applies for and receives long term disability benefits.  Thereafter, the claimant receives Social Security disability benefits.  Most, if not all, long term disability (LTD) plans have a provision for offsetting the LTD benefits by the amount of Social Security disability benefits the claimant receives.  In other words, once that claimant receives Social Security disability benefits in a lump sum amount for past due benefits, the LTD carrier has an overpayment claim.  The issue is how the LTD carrier can collect the overpayment.  Obviously, the LTD carrier will ask the claimant to pay back the overpayment.  Often, the claimant will comply. If the claimant does not comply and the carrier is still paying LTD benefits, the carrier will normally stop paying monthly LTD benefits until such time as the overpayment is recovered. Basically, the carrier credits the amount owed against the overpayment balance.  Some carriers have tried other approaches, such as bringing suit under ERISA or bringing a counterclaim for reimbursement under ERISA if the claimant brings suit to challenge a decision of the carrier.  In one relatively recent case, the Court held that because the carrier could not specifically identify whether or not the claimant still had the overpayment proceeds in her possession, the LTD carrier could not recover the overpayment directly from the claimant, but instead, could withhold benefits to collect to the overpayment.  Epolito v. Prudential Ins. Co. of Am., 737 F. Supp. 2d 1364, 2010 U.S. Dist. LEXIS 91010 (M.D. Fla. 2010).

Vocational Testimony and the DOT

During a hearing, the vocational expert will sometimes testify as to matters not covered by the Dictionary of Occupational Titles (DOT) and/or at variance with the DOT.   An ALJ is required to ensure that the vocational expert’s testimony is consistent with the DOT, and if not, such conflicts must be resolved.  SSR 00-4p “emphasizes that before relying upon VE…evidence to support a disability determination or decision, our adjudicators must identify and obtain a reasonable explanation for any conflicts between occupational evidence by VEs…and information in the DOT…and explain in the…decision how any conflict that has been identified was resolved.”

If you need assistance with your Social Security Disability Claim, click here.