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Congress did not intend to block federal courts from awarding interim disability benefits while a case involving Supplemental Security Income payments is pending, according to a New York Southern District judge. Cutting against the decisions of two other circuits and invoking his authority in equity, Judge Alvin K. Hellerstein awarded interim benefits to a learning disabled boy in a case that had dragged on for almost four years. “A court’s equitable jurisdiction serves to allay the injustice of time,” Hellerstein wrote in Rivera v. Apfel, 99 Civ. 3945. Nelly Rivera claimed in 1996 that her son, Joshua Brignoni should receive SSI benefits because he suffered from attention deficit disorder, depression and other problems. At the time, Joshua was 9 years old, but was still in second grade and working at a first grade level. When the Social Security Administration (SSA) denied the request in 1997, Rivera appealed to an Administrative Law Judge. In 1998, the ALJ agreed that the boy suffered from attention deficit disorder but said his symptoms were “not of such intensity and frequency to impose marked and severe limitations.” The decision became final in February 1999, when Commissioner Kenneth S. Apfel denied Rivera’s request for review. Joshua was at that point 12 years-old and his case had been pending for more than 26 months. Hellerstein first found, and both sides agreed, that the ALJ had failed to fully develop the record in Joshua’s case. He said that the ALJ “relied on out of date and incomplete records, relied on secondary and preliminary characterizations when primary records were available, failed to obtain current information, and questioned witnesses in a perfunctory manner.” Under 20 C.F.R. �416.924(d), Hellerstein said, a claim for SSI is to be accepted if the applicant’s condition “meets, medically equals, or functionally equals” an impairment listed in the regulations. Among the impairments listed are attention deficit hyperactivity disorder and mental retardation. And the listings say that a child is considered mentally retarded if their intelligence quotient is between 60 and 70 and they have a marked impairment in their ability to concentrate or function. Joshua has an IQ of 71, Hellerstein said, so he might have a chance to succeed on the merits and he could face “irreparable injury” if he does not receive interim benefits “when it may do him the most good.” The U.S. Supreme Court held that if administrative determinations are slow, the courts may not order the hastening of those determinations by imposing judicially-mandated deadlines in Heckler v. Day, U.S. 104 (1984). But Hellerstein said he disagreed with the two circuits that have “stretched that caution into holding that district courts also lack the right to order interim payments to petitioners for disability payments.” Doughty v. Bowen, 389 F.2d 644 (10th Cir. 1988) and Taylor v. Heckler 769 F 2d. 201 (4th Cir. 1985). Doughty and Taylor, he said, dealt with interim benefits in cases where the SSA was seeking to terminate disability payments already being made. Both circuits found that, because Congress had provided that interim payments should be made in that scenario, it must have intended that interim payments should not be made in other circumstances. Hellerstein disagreed with that logic, saying there was nothing in the legislative history that “manifested a Congressional intent to divest courts of normal equitable powers with regard to interim disability compensation….” Noting that “equity begins when the remedy at law is inadequate,” he went on to cite the Chancery Courts in medieval England, Genesis 18:25 and Deuteronomy 16:18, and, ultimately, the Talmud, where he quoted a modern commentator on the secular reception of ancient Jewish law as saying, “There exists the general truth of legal rules and the individual truth of specific cases.” Calling the SSA’s administrative procedures “unreasonably long” and “deficient and wasteful,” Hellerstein ordered interim benefits to be paid to Joshua until a final determination is made on remand. James M. Baker of the Center for Disability Advocacy Rights represented Rivera and Joshua. Assistant U.S. Attorney Susan D. Baird represented the government.

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