Russell: I see your point, but have a different take on it. Golian is a 2001 appellate case in which the defendant was well aware of the plaintiff’s disability and assisted her in applying for benefits. In reaching its holding, the court stated, "In the circumstances of this case..." It was fact-specific; I don't read it as globally. However, in the 2004 Burns appellate case the court stated, “We concur with the rulings of the courts … that a child support order may be entered against a parent who is an SSI recipient where the court concludes that the parent is earning or has the ability to earn additional income.” In that regard, Burns and Crespo (2007) are consistent. That said, when I deal with these type of cases in court, if the obligor is receiving SSD or SSI and the obligee is aware of the disability and the obligor's inability to work, then I agree with your take on it. However, if the obligee has no knowledge of the obligor's condition or ability to work, then it is incumbent upon the obligor to present the doctor's letter.
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Mitch Steinhart, Esq.
Bergen County Board of Social Services
Rochelle Park, NJ
Original Message:
Sent: 06-08-2016 15:42
From: Russell Gale
Subject: disability
Mitchell,
The problem with the Gilligan decision is that Judge Jones chose to simply ignore the App Div's decision in Golian in which they stated that "… the SSA adjudication of disability constitutes a prima facie showing that plaintiff is disabled and , and therefore unable to be gainfully employed, and the burden shifts to defendant to refute that presumption." Golian is still good law and no other App Div panel or the Supreme Court has said otherwise. While I agree with your suggestion that it is helpful to have a statement from the client's treating doctor indicating the nature of client's disability and his/her ability to work, IMO, Gilligan was wrong and based on an unsupported assumption that anyone receiving SSD or SSI benefits has the ability to do some kind of work and they should therefore have to prove that they cannot do any kind of work. This not only flies in the face of Golian, but ignores the SSA's definition of disability which requires an individual to prove that they have a severe impairment and that, not only can they not perform the duties of their former employment, but that there is no job in the national economy that they are able to do. 42 USCA 423(d)(2)(A) and 42 USCA 1382c(a)(3)(A).
Russell Gale, Esq.
Managing Attorney
CENTRAL JERSEY LEGAL SERVICES
313 State Street, Suite 308
Perth Amboy, NJ 08861
Phone – (732) 324-1613 Ext. 2310
Fax – (732) 324-6253
Email – [email protected]