Social Security Disability Advice CONNECT

Off-topic :: RE: Alaska's investigative report re Gov. Palin due today.

MikeWalters — Sat, 11 Oct 2008 02:25:13 GMT

Author: MikeWalters
Posted: Sat Oct 11, 2008 02:25 am (GMT 0)

Pdf of the report: http://graphics8.nytimes.com/packages/pdf/politics/20081010_TROOPER.pdf

Disability Law :: RE: Green Card eligibility

Fri, 10 Oct 2008 22:50:22 GMT

Author: anonymouse
Posted: Fri Oct 10, 2008 10:50 pm (GMT 0)

he could apply for citizenship, then SSI

Off-topic :: Alaska's investigative report re Gov. Palin due today.

David Traver — Fri, 10 Oct 2008 18:29:57 GMT

Author: David Traver
Subject: Alaska's investigative report re Gov. Palin due today.
Posted: Fri Oct 10, 2008 06:29 pm (GMT 0)

If you can pull your bloodshot eyes away from your dwindiling life savings for a few minutes today, dry your tears and watch for this report:

Quote:

ANCHORAGE, Alaska (CNN) – Alaska lawmakers convened Friday to receive an investigator's report on Gov. Sarah Palin's firing of her public safety commissioner, who says he was sacked after refusing to fire the governor's ex-brother-in-law.

The bipartisan Legislative Council went into executive session to discuss the report from former Anchorage Prosecutor Stephen Branchflower. A portion of the report is scheduled to be made public after the executive session, said Sen. Kim Elton, the Legislative Council's chairman.

A second part of the report contains "confidential" information and will be kept under wraps, said Elton, a Democrat who has been under fire from Palin's supporters. Rep. Peggy Wilson, a Republican member of the council, said the total report ran about 1,000 pages.

CNN Political Ticker: All politics, all the time Blog Archive - Alaska lawmakers meet to receive trooper probe report « - Blogs from CNN.com, at http://politicalticker.blogs.cnn.com/2008/10/10/alaska-lawmakers-meet-to-receive-trooper-probe-report/ (last visited Oct. 10, 2008).
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: Green Card eligibility

MikeWalters — Fri, 10 Oct 2008 16:41:47 GMT

Author: MikeWalters
Posted: Fri Oct 10, 2008 04:41 pm (GMT 0)

First, a respectful suggestion. When asking a question like this, specify whether the question is about Title II or SSI.

Based on your description of the client, I will assume the question is about SSI. SSI alien eligibility is one of the most complicated issues in the field of Social Security law. You asked for a CFR cite, here it is:
http://tinyurl.com/3zases (see 20 CFR 416.1600-416.1619).

The CFR will not only not help, it will actually mislead you. You could assume from reading the CFR that any alien lawfully admitted for permanent residence is eligible for SSI. Not true. And, it's not true because Congress has enacted provisions in Federal law (not the Social Security Act) that trump the Act (that is also why you won't find much in the SSA CFR on the subject). For an example of the Federal law:
http://www4.law.cornell.edu/uscode/8/1611.html

My opinion is the best overview is found in POMS, but that is probably because I am most comfortable with POMS:
https://secure.ssa.gov/apps10/poms.nsf/lnx/0500502000

For an example of one lawyer's attempt to explain this mess, see the linked outline from our website. I didn't prepare this outline. Although it deals with Ohio Medicaid, the rules don't vary much with respect to SSI:
http://www.proseniors.org/Law_Library/Health/Alien%20Medicaid/Alien_Eligibility.pdf

To put it as simply as I can, if an alien was admitted for permanent residence prior to 08/23/96, then citizenship isn't necessary. After 08/22/96, absent a few narrow exceptions (such as refugees) it is very difficult to receive SSI if the applicant is not a citizen.

Disability Law :: Green Card eligibility

Fri, 10 Oct 2008 00:08:09 GMT

Author: astro5169
Subject: Green Card eligibility
Posted: Fri Oct 10, 2008 12:08 am (GMT 0)

I have a client who is 24 and graduated from U.S. high school. He has a green card. He is disabled. He is of german decent. He applied and was informally told he did not qualify. What CFR am I looking for?

Disability Law :: RE: Important 7th Circuit Decision on SSR 00-4p

JOA — Thu, 09 Oct 2008 17:31:14 GMT

Author: JOA
Posted: Thu Oct 09, 2008 05:31 pm (GMT 0)

Mr. Duncan:

I can follow your comments about what we might call best practices for questioning a VE. But I can not follow the reasoning in the last paragraph of your post. At the very least, it seems to me that your reasoning is incomplete.

You say of Overman that "I don't think it protects the decision in the least and does not preclude post-hearing issues." There are two parts to this:

1. Overman doesn't "protect[] the decision in the least."
2. It also "does not preclude post-hearing issues."

For no. 1, how can this "in the least" statement be made to fit with the language from the 7th CCA (quoted in my post above) that you were obligated to argue "that the conflicts were obvious enough that the ALJ should have picked them up without any assistance"? Does every inconsistency meet this standard, no matter when it is discovered? Surely it cannot be the case that the very existence of an apparent inconsistency is enough to make it apparent, even when the existence of this apparent inconsistency comes to light later on. ALJs cannot be held responsible for seeing the future.

If I'm right that the 7th CCA was looking to you to demonstrate sufficient obviousness, then the burden on you to carry out this demonstration, in your words, "protects the decision." At least somewhat, anyway.

That's for no. 1. For no. 2, I'm not seeing that it says anything useful to state that post-hearing issues are not precluded. "Not precluded" isn’t the same as "not restricted." And if post-hearing arguments must demonstrate that there was an obvious-enough inconsistency right there in front of the ALJ, then this sure seems to be a restriction.

Which still leaves the troubling question I mentioned above about the status of post-decision evidence of an apparent inconsistency. If the apparent inconsistency was sufficiently obvious without this new evidence, then the new evidence is irrelevant. But what if the apparent inconsistency was not sufficiently apparent prior to the new evidence?
_________________
I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.

Disability Law :: RE: Important 7th Circuit Decision on SSR 00-4p

David Traver — Thu, 09 Oct 2008 16:33:20 GMT

Author: David Traver
Posted: Thu Oct 09, 2008 04:33 pm (GMT 0)

http://germaniapublishing.com/ Here is where you can go to get an SCO.

Disclaimer, I run the company. Second disclaimer, it is more of a pain in the butt than profitable. I run it as a public service to help fight bullshit testimony by VEs.

So if you get an SCO, please take the time to use it as suggested by Dana.
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: Important 7th Circuit Decision on SSR 00-4p

danawduncan — Thu, 09 Oct 2008 16:25:44 GMT

Author: danawduncan
Posted: Thu Oct 09, 2008 04:25 pm (GMT 0)

Thank you. Yes, I have many hours in this issue. This was one of several cases where I made this argument to no avail in the District Court. I glad the Seventh Circuit applied the law correctly

In response, the key to this is two fold. First, you must cross-examine the VE. Don't take his word for anything. Pull out your DOT and SCO and ask questions. Once that is done, if you have raised an issue that the VE may be wrong or some issue is in dispute, that is enough to make the issue in apparent conflict. For example, I had a hearing Monday where PRW was at issue. The ME limited the claimant to no hazardous machinery. The DOT described the PRW as requiring the use of a large knife with chains and hooks (he worked in a meat packing plant -- it was a mental only claim). I cross-examined the VE and said that was hazardous machinery. He agreed finally, but if he had not, that would be enough of an apparent conflict to raise issue on post-hearing brief and appeal.

Remember, the decision says that the issue of conflict cannot be waived, affirming the McKinney decision. Moreover, the decision notes that at step 5 as this case was, the Commissioner has the burden of proof, and if he relies on flawed testimony the decision is flawed. I don't think it protects the decision in the least and does not preclude post-hearing issues. The key, however, is to cross-exam the VE and to object to the testimony if it appears that a problem may exist.

Off-topic :: RE: Presidential Polls

David Traver — Thu, 09 Oct 2008 16:21:21 GMT

Author: David Traver
Posted: Thu Oct 09, 2008 04:21 pm (GMT 0)

This is a duplicate of a posting that I put up elsewhere on Connect. I just wanted to make sure that everybody knows about http://www.fivethirtyeight.com/

Notice the use of regression analysis and the weighting of various polls based upon the prior accuracy of the polls and other factors such as cultural and geographical proximity to other polled states and the demographics of the state. This takes the liberal spin out of CNN polls and the conservative spin out of Fox polls, eg.

This week on Colbert, one of the partners running the site explained that even if the pollster, such as CNN or FOX is neutral to the best of its ability, the use of the pollster's name in the communication with the surveyed individual is enough to taint the results due to polarization of the electorate.

These guys started off handicapping sporting events. They a very interesting pair of super-nerds. Lovely stuff.

This is a good place to start the day for Democrats: http://www.fivethirtyeight.com/

Conservatives may find the final days of Republican press briefings from the White House to be a nice way to enjoy the morning cup of coffee: http://www.whitehouse.gov/news/briefings/
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: Digg, StumbleUpon and other icons now in every posting.

David Traver — Thu, 09 Oct 2008 14:30:33 GMT

Author: David Traver
Subject: Digg, StumbleUpon and other icons now in every posting.
Posted: Thu Oct 09, 2008 02:30 pm (GMT 0)

Now that my book update is happily sitting on my publisher's desk in California, I'm beginning to do a little cleanup and wish-list work.

I've added a bunch of new buttons to the bottom of every posting for your entertainment and for sharing. With a click on one of these buttons, off you will go to a community bookmark sharing page such as http://digg.com, which is one of the many social networking sites with story submission and voting systems. http://en.wikipedia.org/wiki/Digg

When you arrive the form you find there should be pointing back to the topic URL on Connect. It should also dump the topic title into a form. Simply fill in the rest of the form, explain why the topic is important to your audience, click submit, and you will share the topic with countless thousands of others who had never heard of Connect before.

There is an additional button which will take you to the Connect RSS feed. That's an easy way to add Connect to your RSS reader. It is also has the best link for keeping up to speed with postings from your iPhone, Web enabled cell phone, or a PDA. There is no form to complete on the RSS page.

I subscribe to Digg, StumbleUpon, and an RSS reader. I checked those buttons and they work well. Could you please pound on all of the buttons a little and let me know if they work? If there is a problem please let me know and I will try to fix it.

If I am missing one of your favorite social networking sites please let me know and I will try to add a button for your convenience.

Finally, I'd be grateful if you would please start Digging, Sumbling and otherwise linking back to Connect like a flock of crazed pigeons in a Skinner box. It's fun to share.

What's a Skinner box? http://en.wikipedia.org/wiki/Skinner_box (no, I did not call you a pigeon! I called all of us a flock of pecking pigeons.)

Dave
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: RE: Important 7th Circuit Decision on SSR 00-4p

JOA — Thu, 09 Oct 2008 13:22:07 GMT

Author: JOA
Posted: Thu Oct 09, 2008 01:22 pm (GMT 0)

Mr. Duncan must surely have many hours invested in the issues for Overman. I've spent a few minutes with what the 7th CCA had to say. With this disclaimer, I will say that it wa this in particular struck my eye about Overman:

Quote:

[T]he failure of Overman’s counsel to identify the
conflicts at the time of the hearing is not without consequence.
Overman now has to argue that the conflicts were
obvious enough that the ALJ should have picked up on
them without any assistance, for SSR 00-4p requires only
that the ALJ investigate and resolve apparent conflicts
between the VE’s evidence and the DOT.

On a first brief reading, I saw this approach as operating to restrict the kinds of after-the-fact challenges that VE evidence was inconsistent with the DOT. A second thought raises this question: when inconsistencies are not apparent at the time the ALJ issues his or her decision, what is the status of after-the-fact evidence suggesting apparent inconsistencies? Does Overman take look-what-I-found arguments citing the DOT off the table for appeal?
_________________
I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.

Off-topic :: RE: Last night's Presidential debate . . . and the loser is . .

Insider (Ret) — Thu, 09 Oct 2008 12:48:36 GMT

Author: Insider (Ret)
Posted: Thu Oct 09, 2008 12:48 pm (GMT 0)

Incredible stuff, I'd say. For polling info, I think it's the best, period. I like Real Clear Politics for getting a good feel for what the 'chattering class' is up to.

Off-topic :: The problem of evil

David Traver — Thu, 09 Oct 2008 00:35:44 GMT

Author: David Traver
Subject: The problem of evil
Posted: Thu Oct 09, 2008 12:35 am (GMT 0)

http://en.wikipedia.org/wiki/Problem_of_evil

Gov. Palin was able to elicit some shouts of "'terrorist!" and "kill him" while whipping up some crowds this week with some artful anti-Obama glee. The Secret Service is investigating the "kill him" shout, which was a felony in the context. That is, the Secret Service is applying a pre-determined standard of propriety to the event with the aim of triggering sanctions to punish outbursts of murder aimed at a candidate for federal office.

So, was Gov. Palin and her crowd right? Is Senator Biden right to denounce it? Is the Secret Service right to investigate it? Does it depend upon where you sit?

Taken in a broader context, isn't this a recent and provocative example of relativistic morality? Or, is one side "right" per se, while the other side is "evil?" If so, which is which?

Extending this further, we might ask, isn't evil simply a definitional relativism that depends entirely upon point of view and perhaps an esteemed or delusional perspective? Does evil exist as a separate force that is almost as powerful as God? Why can't God triumph over evil? Why the holocausts? Why cancer?

Why the prolonged misery of a complex life? Why does Divinity postpone absolute bliss?

If God does not exist, does evil exist? If evil exists, does God?

Is there any good or evil that is not relative to a definition?

And so on.

In Zen fashion we might ask, "Does everybody smoke in Hell?" (Which I remember as a paraphrase on a book title. It is not original to me.)

Of course, nobody has the "correct" answer to such questions. Unless of course, they do.
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: RE: Last night's Presidential debate . . . and the loser is . .

David Traver — Wed, 08 Oct 2008 22:32:40 GMT

Author: David Traver
Posted: Wed Oct 08, 2008 10:32 pm (GMT 0)

Notice the use of regression analysis and the weighting of various polls based upon the prior accuracy of the polls and other factors such as cultural and geographical proximity to other polled states and the demographics of the state. This takes the liberal spin out of CNN polls and the conservative spin out of Fox polls, eg.

This week on Colbert, one of the partners running the site explained that even if the pollster, such as CNN or FOX is neutral to the best of its ability, the use of the pollster's name in the communication with the surveyed individual is enough to taint the results due to polarization of the electorate.

These guys started off handicapping sporting events. They a very interesting pair of super-nerds. Lovely stuff.

This is a good place to start the day for Democrats: http://www.fivethirtyeight.com

Conservatives may find the terminal Republican press briefings from the White House to be a nice way to enjoy the morning cup of coffee: http://www.whitehouse.gov/news/briefings/
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: RE: Last night's Presidential debate . . . and the loser is . .

Insider (Ret) — Wed, 08 Oct 2008 21:58:29 GMT

Author: Insider (Ret)
Posted: Wed Oct 08, 2008 09:58 pm (GMT 0)

Neat website, thanks!

Disability Law :: Important 7th Circuit Decision on SSR 00-4p

David Traver — Wed, 08 Oct 2008 19:38:44 GMT

Author: David Traver
Subject: Important 7th Circuit Decision on SSR 00-4p
Posted: Wed Oct 08, 2008 07:38 pm (GMT 0)

I received this very nice decision today from Wisconsin Attorney Dana Duncan. Congratulations Mr. Duncan, this is a great win for claimants.

Quote:

I received the attached yesterday. I argued successfully that the ALJ's must do more than simply ask VE's whether their testimony is consistent with the DOT; they have to address issues if the conflict is apparent and if the VE has been cross-examined on it. Moreover, the Court agreed that when VE testimony is flawed -- e.g., the VE testifies that a job is "light" when it is medium -- and the ALJ relies on that flawed testimony at Step 5, the Commissioner fails to meet his burden of proof.

I hope this case significant implications for all hearings and all appeals.

If anyone wants more information or copies of my briefs, please given me a call at 715-423-4100 or email me.

Sincerely,

Dana W. Duncan

Overman v. Astrue, -- F.3d --, No. 07-2968 (7th Cir. Oct. 7, 2008). http://tinyurl.com/3rhd27

See also:
Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008).
http://tinyurl.com/3fs5yh

Prochaska v. Barnhart, 454 F.3d 731 (7th Cir. 2006).
http://tinyurl.com/5x4lrc

Donahue v. Barnhart, 279 F.3d 411 (7th Cir. 2002).
http://tinyurl.com/4w4rjf
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Off-topic :: Last night's Presidential debate . . . and the loser is . .

David Traver — Wed, 08 Oct 2008 16:58:44 GMT

Author: David Traver
Subject: Last night's Presidential debate . . . and the loser is . .
Posted: Wed Oct 08, 2008 04:58 pm (GMT 0)

Quote:

I apologize if I sound like a broken record. But once again, Obama won the debate according to essentially every objective metric. And recall that, even if the debate were a tie, this would not have helped John McCain; he needed a clear win tonight. Instead, he's continued to dig himself into a deeper electoral hole.

The sense I had tonight was that McCain was overcoached -- that he was trying too hard. I don't think that he made any significant tactical errors. But he came across as nervous and awkward. And he is longer really fighting on a level playing field. In order to win this election, McCain needed to keep the Republican brand at arm's-length. He had largely managed to do that until the Lehman Brothers collapse scared the Hell out of Main Street and reminded everyone of the failures of the status quo. McCain needed to empathize on the economy; his "fundamentals" comment made that very difficult. He needed to find some way to position himself in opposition to Senator Obama on the bailout, but he had boxed himself in with his gambit about suspending his campaign. McCain lost tonight, but the reasons for his failure stem from long before this eveni

ng.

--FiveThirtyEight.com: Electoral Projections Done Right: Post-Debate Thoughts, or Lack Thereof, at http://www.fivethirtyeight.com/2008/10/post-debate-thoughts-or-lack-thereof.html (last visited Oct. 8, 2008).

Some comments from readers:

Quote:

C.S.Strowbridge said...

"My friends" drove me nuts. It was like he was a used car salesman trying to con me into buying a lemon.
October 8, 2008 12:35 AM
Jackie said...

That is probably an accurate analogy.
October 8, 2008 12:36 AM

--FiveThirtyEight.com: Electoral Projections Done Right: Post-Debate Thoughts, or Lack Thereof, at http://www.fivethirtyeight.com/2008/10/post-debate-thoughts-or-lack-thereof.html (last visited Oct. 8, 2008).
_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
North Prairie, WI 53153-0188
262-594-2096
http://ssaconnect.com
http://traverlaw.com
https://germaniapublishing.com
http://www.jamespublishing.com/books/ssr.htm

Disability Law :: Attorney fee questions

Lola — Wed, 08 Oct 2008 15:30:42 GMT

Author: Lola
Subject: Attorney fee questions
Posted: Wed Oct 08, 2008 03:30 pm (GMT 0)

We have two atty fee issues that are new to us & we're not sure how to proceed:
#1: Claim allowed at hearing and atty fee agreement approved.
Subsequent award ltr with large T-2 retro to client and max atty fee to us. We recently rec'd an atty fee ck in the amt of $2,500, rather than $5,221. The ODO explanation is that the day after the hearing, the client sent a ltr to the ALJ & to the Reg CALJ's office stating that she did not want any fee paid to us as: we had done very little work on her claim, the atty said nothing during the hearing, and (I love this one) told her prior to the hearing that he hadn't looked at her case and so knew nothing about it (all untrue statements). Of course, a client can protest the amt of the fee to be paid, but shouldn't we have been advised of her protest before the $2,500 fee was issed? Can we file a protest now? The ODO reasoning is that it's ODO's jurisdiction to make a decison regarding the amt of the atty fee to be paid when the client protests. Wrong, I suspect.

#2: Claim allowed at hearing with an Order approving the fee agreement. With the hearing decision came our 1696/fee agreement and the same from another atty. According to the client, he retained the other atty when he filed his Recon, never had any contact with him after the initial contact, sent him a fired ltr when he rec'd his Recon denial and then retained us (never mentioned the previous atty as he didn't think it was important). I don't know where the other atty's 1696 had been lurking as it is not in client's SSD file; there is absolutely nothing in the SSD file regarding the other atty.
We've discussed this with the other atty who states that he was not fired, did a lot of work on the case and will file a fee petition. All med evidence in the file prior to the time we came on board with the 501 is evidence solicited by DDS. Is a fee petition our only recourse?
I've looked for procedure regarding both of these issues and have not been able to find anything so far. Thank you in advance for any suggestions.

Disability Law :: RE: Judicial review without a hearing.

Insider (Ret) — Wed, 08 Oct 2008 00:49:34 GMT

Author: Insider (Ret)
Posted: Wed Oct 08, 2008 12:49 am (GMT 0)

JOA's subtle hint/point is well taken. Do not overlook/ignore the AC on this issue. It's one they're very much inclined to enforce.

Disability Law :: RE: How to force a precedent opinion?

Tue, 07 Oct 2008 22:59:26 GMT

Author:
Subject: Re: How to force a precedent opinion?
Posted: Tue Oct 07, 2008 10:59 pm (GMT 0)

Craig Jarvis wrote:

I am handling a survivor benefits claim for two children adopted in Liberia whose adopting father died ten days after the adoption occurred in Liberia but before they immigrated to the US. POMS GN 00306.155 instructs what to do in these cases to establish the valitidy of the adoption. Becasue of the odd circumstances of this case, the family does not have and cannot get the paperwork that would satisfy the criteria of that POMS section. Without the paperwork the POMS requires that the case be submitted to the Regional Chief Counsel for a precedent opinion.

The case is at reconsideration now. It was clearly not submitted to RCC for a precendent opinion when originally filed. The only precedent opinion I can find as to Liberia is PR 01325.208 which does not address the situation of these particular children, and in fact does no more than restate the policy in GN 00306.155 before that section was adopted in its present form. The claim has been languishing now at a payment center for approaching to a year without any indication that it will be or has been submitted for a precedent opinion.

How would one press the issue to get the precedent opinion? I have considered a writ of mandamus, but it seems that there should be some easier way than this. I am having no luck trying to talk to anyone beyond the field office, who is also having difficulty getting any responses about the status.

If anyone knows someone to contact to move this along, you can respond privately to my e-mail at jarvis[at]bfslaw.com.

I am in the Boston Region.

First, keep in mind that just because there isn't a LPO posted to the public POMS doesn't mean that there wasn't one made at the initial level. It can take over a year for the agency to finally get around to posting a LPO decision even to its own intranet. And, the agency generally won't release them or make them a part of the file, either (it considers them sensitive information, if you can believe that) -- the earliest point you might actually see it is when they finally get around to posting it.

I'm not surprised that the PSC isn't responding. After the reconsideration reviewer position was eliminated, non-disability issue recons have tended to gravitate to the absolute bottom of the workload stack. And, if they are having to request an LPO, there isn't any telling what kind of turf hoops they will have to jump through to actually get it.

The quickest way to try to light a fire under their asses is to request your Congressional reps (from both Senate and House - the more, the merrier) to make formal inquires as to status. That gets the PSC management weenies on your side, 'cause for some reason they don't like to have to write responses defending their lack of action to a Congressman. They'll push somebody to take some action, or maybe will refer it for special handling. It might still result in a denial, but at least that gets you to a point where you can get your client in line to have a hearing before the ALJ.

Disability Law :: RE: Judicial review without a hearing.

JOA — Tue, 07 Oct 2008 19:56:47 GMT

Author: JOA
Posted: Tue Oct 07, 2008 07:56 pm (GMT 0)

If memory serves, there have been Connect posts arguing that the AC is more willing to enforce HALLEX than are the courts. I offer no comment on this. But here's a link to what HALLEX says is the required documentation for a waiver of hearing by an unrepresented claimant (see F. 1-3):

http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-45.html
_________________
I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.

Disability Law :: RE: Judicial review without a hearing.

David Traver — Tue, 07 Oct 2008 19:14:02 GMT

Author: David Traver
Posted: Tue Oct 07, 2008 07:14 pm (GMT 0)

Did the ALJ dismiss the claim or did the ALJ issue a decision on the merits based upon the evidence of record? The applicable statute calls for the appealing claimant to be a "party" to a hearing. The claimant need not be a participant at the hearing to obtain jurisdiction under the statute. http://ssaconnect.com/content/view/113/173/ If the ALJ issued a "hearing" decision on the evidence of record then I would strongly suspect the final decision of the agency could be reviewed by a district court.

If the case were dismissed without a hearing such a dismissal would not usually be reviewed by a district court under 42 U.S.C. 405 (g). In that instance you could ask the ALJ to reconsider, which she should given the facts, or take it to the AC, which you did, under the facts you gave. I suspect you cannot do both at the same time and pick the result you like.

Also, you may wish to consider the language used in the following ruling as analogous to the situation you described. If you did not bring such arguments to the attention of the AC there may still be time to do so. http://www.ssa.gov/OP_Home/rulings/oasi/33/SSR95-01-oasi-33.html

See also http://www.ssa.gov/OP_Home/hallex/I-02/I-2-4-25.html

See also this search: http://tinyurl.com/3zgomz

"Read the source Luke!"

_________________
David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 188
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Disability Law :: RE: Judicial review without a hearing.

MikeWalters — Tue, 07 Oct 2008 18:52:23 GMT

Author: MikeWalters
Posted: Tue Oct 07, 2008 06:52 pm (GMT 0)

I don't typically litigate so take this with a large grain of salt. But, I don't think the provision in 20 CFR 404.948 (b) allowing a party to waive an "oral" hearing has the same meaning as the jurisdictional provision in 42 USC 405(g) requiring a "hearing" as a prerequisite to judicial review. What your client received was a decision, not a dismissal, correct?

I have never seen anything that would indicate waiving a right to an oral hearing waives the right to judicial review. I think you are probably interpreting 405(g) too narrowly.

Disability Law :: Judicial review without a hearing.

NDP — Tue, 07 Oct 2008 17:12:20 GMT

Author: NDP
Subject: Judicial review without a hearing.
Posted: Tue Oct 07, 2008 05:12 pm (GMT 0)

I was recently contacted by a claimant following his denial at the hearing level. The claimant never attended a hearing and was unrepresented. The ALJ decision states that he "knowingly and voluntarily" waived his right to appear and testify.

Because the claimant was unrepresented, the development in his case consisted of only a handful of documents from state agency physicians as well as a brief consultative examination.

I was recently able to obtain some records that indicate that the claimant is mentally retarded, leading to some question as to his ability to actually knowingly and voluntarily waive his right to a hearing. Other new evidence indicates that the claimant experiences intermittent paralysis from the chest down.

Due to my lack of faith in the Appeals Council, I fully expect them to deny review of this case. The only difficulty is finding a jurisdictional basis for federal court review. From my understanding of 405(g), an actual hearing is a prerequisite for judicial review. Has anybody else had success in obtaining federal court review of a case without a prior hearing?

-NDP

Disability Law :: How to force a precedent opinion?

Craig Jarvis — Tue, 07 Oct 2008 15:57:05 GMT

Author: Craig Jarvis
Subject: How to force a precedent opinion?
Posted: Tue Oct 07, 2008 03:57 pm (GMT 0)

I am handling a survivor benefits claim for two children adopted in Liberia whose adopting father died ten days after the adoption occurred in Liberia but before they immigrated to the US. POMS GN 00306.155 instructs what to do in these cases to establish the valitidy of the adoption. Becasue of the odd circumstances of this case, the family does not have and cannot get the paperwork that would satisfy the criteria of that POMS section. Without the paperwork the POMS requires that the case be submitted to the Regional Chief Counsel for a precedent opinion.

The case is at reconsideration now. It was clearly not submitted to RCC for a precendent opinion when originally filed. The only precedent opinion I can find as to Liberia is PR 01325.208 which does not address the situation of these particular children, and in fact does no more than restate the policy in GN 00306.155 before that section was adopted in its present form. The claim has been languishing now at a payment center for approaching to a year without any indication that it will be or has been submitted for a precedent opinion.

How would one press the issue to get the precedent opinion? I have considered a writ of mandamus, but it seems that there should be some easier way than this. I am having no luck trying to talk to anyone beyond the field office, who is also having difficulty getting any responses about the status.

If anyone knows someone to contact to move this along, you can respond privately to my e-mail at jarvis[at]bfslaw.com.

I am in the Boston Region.