Remand to AC for payment of benefits & subsequent app

LaAttorney · Joined: 16 Jan 2008 Posts: 2

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First time poster, I'm hoping someone can offer suggestions for me to resolve my client's situation.

Client was unrepresented until after receiving an unfavorable ALJ decision, in August 2006. I represented to the AC, and then filed an appeal to district court. Straight Title XVI claim.

While the AC request for review was pending, client filed a subsequent application. This was denied, and we filed a request for hearing (prototype state, no recon) in May 2007.

In December 2007, the government filed an Unopposed Motion to Remand, agreeing with my argument in brief that the claimant met the grid rule. The Motion called for the Commissioner to "make a finding that plaintiff is disabled beginning March 2004" and that "the Commissioner will pay plaintiff all appropriate back-due benefits as well as future payments". The judgment that was signed to grant the motion was styled as a fourth sentence reversal and remand to the Commissioner for the purpose of conducting further proceedings.

Since that time, the matter has been at the AC. However, the subsequent application, denial, and request for hearing is still pending at the local ODAR office. And they keep wanting to set the case for a hearing. Three times now I have tried to explain, and have supplied documentation, showing that this really should be deferred until the AC acts on the court remand, because the court remand should take care of the payment of benefits on the subsequent app. I really don't want to go to a hearing, especially not with the judge assigned to the case.

I can't seem to get an answer from the AC. The local ODAR office just wants to set a hearing. I'm now thinking I should just ask for an OTR on this claim, and maybe have a chance at getting my guy's benefits started. Yet, I still don't really want them to schedule a hearing. It would seem that without instructions from the AC as to payment of the future benefits, the ALJ would be free to make a determination on the subsequent app without regard to the court's remand.

Any thoughts about possible action I can take would be much appreciated. Thanks in advance,

Margherita McWilliams
Staff Attorney, Legal Services North Louisiana

JOA · Joined: 13 May 2004 Posts: 1693

You should consider faxing a description of your problem to the Ombudsman. Summarize your prior contacts with Office of Appellate Operations (OAO), if you've had any. If you haven't already sent a copy of the USDC's order directly to OAO, send it with your fax.

This first paragraph might be a little puzzling to an outsider. Background is that the Appeals Council is part of the Office of Appellate Operations. It's headed by the Executive Director. Day to day stuff gets handled by the Director of Operations. These folks are up on the 14th floor. So is OAO's Ombudsman. I'm not quite clear on whether the Ombudsman reports to the Executive Director or the Director of Operations. But the bottom line is that a status inquiry to the Ombudsman is a status inquiry that goes to a staff person for OAO's senior management.

I don't have the Ombudsman's fax number right at hand. Even if I did, wouldn't post it. I have a strong preference not to post OAO phone numbers on the net. But although I don't want to post it, this fax number is not a secret. Both NOSSCR and NADR have the number, and so do lots of others. So if no one has helped you out with it by tomorrow, I'll send it to you by private message.

Going to deeper background, internal workflow for cases situated as you describe can't fairly be called Byzantine. But it's not simple, either.

OAO is divided into branches more or less like the program service centers are divided in mods. OAO branches come in several flavors. Two of these flavors are court branches and disability branches. The court branches do just about all the case control and support staff work for cases being litigated. The disability branches do most of the substantive stuff, like drafting decisions and those Appeals Council remands after court remand that are actually going to get a wet signature. Sometimes the court branches help out with the decisions and wet signature remands. Sometimes not. Cases usally get passed back and forth properly. Sometimes not.

So it's hard to say whether your case is hung up in a court branch, a disability branch, or in between. The Ombudsman is often well situated to figure these things out. This doesn't mean the Ombudsman has any authority. Except in the rarest of cases, the Ombudsman must rely on cooperation from the branches. She is not Froggy and she cannot pluck her magic twanger.

Likely, everything here after the first paragraph counts as Too Much Information.

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