Author: Catherine M. Callery (Kate)| Louise M. Tarantino

It only took six years, but David Ralph – an attorney from the Elmira office of LAWNY who is well know to be nothing less than persistent – finally convinced an ALJ that his client’s benefits should have not have been discontinued because she was participating in the “Ticket to Work” program.

David’s client had her benefits terminated in 2004, following a reconsideration hearing before a Disability Hearing Officer (DHO). (See 20 C.F.R. §416.1414-1418 regarding reconsideration hearings in Continuing Disability Review – or CDR – proceedings.)  David argued that the benefits should not have been discontinued, regardless of whether or not the client’s condition had improved, because she was participating in a vocational rehabilitation program under the Ticket to Work and Work Incentives Improvement Act of 1999.  See 20 C.F.R. §§411.100 et seq.

Under 20 C.F.R. §§411.165 and 411.175(a) & (b), Social Security cannot begin, or in certain circumstances, continue a CDR during the period in which a beneficiary is using a Ticket to Work.  Alternatively, even if there were a question as to whether the client had begun – or “assigned” – her Ticket to Work prior to the initiation of the CDR, David argued that her benefits should be continued under Section 301 of the Social Security Amendments of 1980 (Pub.L 101-508, §5113), which allows for the continuation of benefits if the beneficiary is participating in a rehabilitation program. See also 20 C.F.R. §416.1338.

The DHO acknowledged David’s point, but ruled that he was without jurisdiction to rescind the cessation.  Despite the DHO’s recommendation that the claim  be referred for review of benefit continuation under the provisions of Section 301, it went instead to an ALJ.  The ALJ completely ignored David’s arguments, and issued a decision finding medical improvement.  David then persuaded the Appeals Council of the error of the ALJ’s ways.  In the summer of 2007, the Appeals Council remanded the claim back to the ALJ with instructions to investigate if and when the claimant was in a rehabilitation program.  (David’s progress up to this point was previously  reported in September 2007 edition of the Disability Law News.)

Finally, on remand, the ALJ also saw the errors of his ways, and issued a short and to the point decision finding that the claimant’s benefits had been erroneously ceased during a period in which she was participating in an appropriate program of vocational rehabilitation.  He even thanked David in his decision for his compliance with the ALJ’s request for additional evidence, and noted that his appreciation was reflected in the timely issuance of his decision.  Timely?!?  Maybe the ALJ issued his most recent decision in a timely fashion vis a vis the date of the last hearing.  It took more than four years, however, to correct his mistake in the first place!

Luckily, the claimant had David on her side.  David’s knowledge of the intricacies of these various programs saved the day for his client.  For more information on SSI’s various incentive earnings programs, see http://www.nls.org/work_incentives.htm.  You can also purchase the 2009 version of the Benefits Management for Working People with Disabilities:  An Advocates Manual.  For more information about the manual and to read excerpts as well ordering information, visit http://www.nls.org/benefits_management_manual.htm.