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  1. #1
    bobdep is offline Junior Member
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    Wink SSA Appels Council - Shirking Duty?

    What is the name of your state (only U.S. law)? California
    I am not a lawyer, but helped a friend of mine with his SSI Disability claim. He challenged the ALJ's decision (a denial by ALJ #1) to the Appeals Council (AC). The AC sent a letter denying review, stating my friend had not submitted the additional evidence he said he would.
    He had, however, sent a doctor's statement asking for an extension of time to submit medical evidence. He pointed this out to the AC.
    The AC then sent a second letter, stating he had been granted an extension of time and that no action would presently be taken on his case. The medical evidence was submitted, and the AC sat on the case for over a year doing nothing. My friend filed a new SSI claim, using the original onset date, and was immediately approved--but beginning with the date of the second SSI claim.
    He appealed the onset date by filing a Request for Reconsideration. After 17 months, the decision was that the back period covered by Claim #1 was already decided--res judicata--and it could not be reopened.
    Appealing that decision to a hearing, after many more months the ALJ (ALJ #2) agreed with the Reconsideration decision, relying on the first letter of the AC, and disregarding the second one.
    It was only after many more months that the US District Court overturned ALJ #2 and sent the case back to the Appeals Council for appropriate action.

    Instead of reviewing ALJ #1's decision, the AC sent it back down to the Hearings Office, where ALJ #3 decided to hold a brand new hearing on the entire period including SSI Claim #1 and Claim #2.
    He decided my friend was not disabled for Claim #1, but could not undo the approval for Claim #2. My freind is continuing to get paid on Claim #2.

    Now is my friend not entitled to have ALJ #1's claim reviewed? That decision was marred by many things, including improper use of the grids, failure to use a vocational expert, failure to consider lay evidence, rejecting treating physician's opinion without reason, etc.

    For example, in Lester v. Chater (81 F.3d 82 (9th Cir. 1995) footnote 28 says:

    [28] The remaining question is whether to remand for further administrative proceedings or simply for payment of benefits. Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion "as a matter of law." Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989); see also Pitzer, 908 F.2d at 506 (remanding for payment of benefits where Secretary did not provide adequate reasons for disregarding examining physician's opinion). Similarly, where the ALJ improperly rejects the claimant's testimony regarding his limitations, and the claimant would be disabled if his testimony were credited, "we will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1401 (9th Cir.1988) (Varney II ). Rather, that testimony is also credited as a matter of law. Id.

    Although I cited and substantiated the defects of ALJ #1's decision, the US District Court considered only the res judicata questoion considered by ALJ #2.

    Can you offer me advicce on how to proceed now? Thank you.
  2. #2
    seniorjudge is offline Senior Member
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    Quote Originally Posted by bobdep View Post
    What is the name of your state (only U.S. law)? California
    I am not a lawyer, but helped a friend of mine with his SSI Disability claim. He challenged the ALJ's decision (a denial by ALJ #1) to the Appeals Council (AC). The AC sent a letter denying review, stating my friend had not submitted the additional evidence he said he would.
    He had, however, sent a doctor's statement asking for an extension of time to submit medical evidence. He pointed this out to the AC.
    The AC then sent a second letter, stating he had been granted an extension of time and that no action would presently be taken on his case. The medical evidence was submitted, and the AC sat on the case for over a year doing nothing. My friend filed a new SSI claim, using the original onset date, and was immediately approved--but beginning with the date of the second SSI claim.
    He appealed the onset date by filing a Request for Reconsideration. After 17 months, the decision was that the back period covered by Claim #1 was already decided--res judicata--and it could not be reopened.
    Appealing that decision to a hearing, after many more months the ALJ (ALJ #2) agreed with the Reconsideration decision, relying on the first letter of the AC, and disregarding the second one.
    It was only after many more months that the US District Court overturned ALJ #2 and sent the case back to the Appeals Council for appropriate action.

    Instead of reviewing ALJ #1's decision, the AC sent it back down to the Hearings Office, where ALJ #3 decided to hold a brand new hearing on the entire period including SSI Claim #1 and Claim #2.
    He decided my friend was not disabled for Claim #1, but could not undo the approval for Claim #2. My freind is continuing to get paid on Claim #2.

    Now is my friend not entitled to have ALJ #1's claim reviewed? That decision was marred by many things, including improper use of the grids, failure to use a vocational expert, failure to consider lay evidence, rejecting treating physician's opinion without reason, etc.

    For example, in Lester v. Chater (81 F.3d 82 (9th Cir. 1995) footnote 28 says:

    [28] The remaining question is whether to remand for further administrative proceedings or simply for payment of benefits. Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion "as a matter of law." Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir.1989); see also Pitzer, 908 F.2d at 506 (remanding for payment of benefits where Secretary did not provide adequate reasons for disregarding examining physician's opinion). Similarly, where the ALJ improperly rejects the claimant's testimony regarding his limitations, and the claimant would be disabled if his testimony were credited, "we will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1401 (9th Cir.1988) (Varney II ). Rather, that testimony is also credited as a matter of law. Id.

    Although I cited and substantiated the defects of ALJ #1's decision, the US District Court considered only the res judicata questoion considered by ALJ #2.

    Can you offer me advicce on how to proceed now? Thank you.
    [url=http://forum.freeadvice.com/showthread.php?t=425607]SSA Appeals Council - Shirking Duty?[/url]

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