Thursday, January 05, 2006

disability - obesity - Listing 9.09 v. SSR 00-3p

Branson v. Barnhart -- ED Pa. - December 29, 2005

The court ordered this case to be remanded. Plaintiff's claim had been filed while the Listing 9.09 was still in effect, i.e., prior to the effective date of the new SSR 00-3p. The court found merit in Plaintiff's argument that the SSR should not be applied retroactively to pending claims, citing conflicting cases from other circuits. The court found "persuasive those cases which reason that the Adminstration does not have the authority to engage in retroactive rulemaking….without express congressional authorization" and rejected the language of the SSR which states that it applies to cases filed before October 25, 1999, and still pending on that date. The court held that the claim should have been evaluated under Listing 9.09 and remanded the case.

Donald Marritz
MidPenn Legal Services