Alj Denied

[giz]

those that think that va total and permanant gives you a lock for ssd it dont and the reason for denial was completly made up he just ignored the facts and on the va he just said that he is not bound by the va decision,no kidding thats the best you could come up with.i know i can appeal but it is so frustrating when a judge just ignores three doctors saying i cant work and his own jobs guy saying theirs know job i can do,thanks for letting me vent :) ill keep fighting till i die

[Notorious Kelly]

Sorry to hear that Giz, but you have the right attitude- Never give up!

I guess your attorney doesn't get paid unless you win, right? Not sure if it's time for a different lawyer, if that's even possible.

Win or go out like a lion!

[giz]

they dont get paid if i dont,i havent heard from them yet,so i dont know if there going to appeal or not i dont think i can get a new lawyer or not unless they decide not to appeal.i hope they dont cause i havent been that pleased with them i used disability group out of california they called the day before bender and bender i wished i would have waited i think if i would have used someone local i might of had more luck.disability group did use a local lawyer and she said at the hearing that if they didnt appeal to call her and she would do my appeal.i dont know it so frustrating

[free_spirit_etc]

do you have an attorney?

Appeals are very difficult to win after an ALJ decision. I did it, so it can be done.

In my case, on the first alj hearing, I believe my 100% VA rating actually hurt my case. The judge asked many times about how much I got from VA. He didn't say it outright but it was obvious from his questions and the denial statements he felt I should not get both.

Very frustrating. I know how you feel.

A VERY valid point that sometimes prejudices do come into play. I do believe that most ALJs try to be fair and objective. But some do not. If they look for reasons to deny the claim - based on irrelevant prejudices - they are NOT being fair and objective.

[free_spirit_etc]

Here are the bases for Appeals Council Review:

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-1.

A. Bases for Appeals Council Review

The Appeals Council may assume jurisdiction to review a case for any reason. It will review a case if:

*

there appears to be an abuse of discretion by the ALJ;

*

there is an error of law;

*

the action, findings or conclusions of the ALJ are not supported by substantial evidence; or

*

there is a broad policy or procedural issue that may affect the general public interest.

In addition, if new and material evidence is submitted which relates to the period on or before the date of the ALJ's hearing decision, the Appeals Council shall evaluate the entire record. It will assume jurisdiction if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record. (See I-3-3-6 regarding new and material evidence.)

[free_spirit_etc]

From the Hallex Manual

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-2.html

I-3-3-2. Abuse of Discretion

Last Update: 9/08/05 (Transmittal I-3-36)

Black's Law Dictionary defines abuse of discretion as “a judgment or decision by an administrative agency or judge which has no foundation in fact or in law or a failure to exercise a sound, reasonable and legal discretion.” When a judgment or conclusion is involved, abuse of discretion means acting in a manner that is imprudent, incautious, unwise, against precedent, and clearly against logic. In the context of the ALJ's actions, abuse of discretion occurs when the action taken is clearly not justified under the particular circumstances of the case.

The following are examples of abuses of discretion by an ALJ:

*

The ALJ did not grant a request for postponement of the scheduled hearing even though the claimant's attending physician contacted the ALJ and confirmed that the claimant's current health would not permit attendance at the hearing.

*

The ALJ refused to grant a claimant's request for additional time to submit a hospital report even though the hospital's custodian of records submitted a statement attesting to the need for additional time because of fire damage in the records department.

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-3.html

I-3-3-3. Error of Law

Last Update: 9/08/05 (Transmittal I-3-36)

The following represent broad categories of errors of law:

*

Misinterpretation of law, regulations, or Social Security Rulings.

*

Misapplication of the law, regulations, or rulings to the facts (e.g., the ALJ established a period of disability beginning after the date the claimant last met the special earnings requirements).

*

Failure to consider pertinent provisions of law, regulations, or rulings.

*

Failure to make a finding of fact, or to give reasons for making a finding of fact, on an issue properly before the ALJ.

*

A procedural error (more than technical) which affects due process (e.g., improper notice of hearing, or failure to notify the claimant of the right to request cross-examination).

*

Failure to rule on an objection raised at the hearing (e.g., an objection to the admission of certain exhibits).

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-4.html

I-3-3-4. ALJ's Action, Findings or Conclusions Not Supported by Substantial Evidence

Last Update: 9/08/05 (Transmittal I-3-36)

A. General

Under the provisions of the regulations of 20 CFR 404.970 and 416.1470, if the decision of an ALJ is supported by “substantial evidence,” the Appeals Council will deny the request for review or decline own motion review on this basis even though the Appeals Council might reach a different conclusion if it considered the case de novo under the “weight of the evidence” rule. The Appeals Council applies the same “substantial evidence” standard of review as the United States district courts.

B. Weight of the Evidence

“Weight of the evidence” is defined as the balance or preponderance of evidence; the inclination of the greater amount of credible evidence to support one side of the issue rather than the other.

C. Substantial Evidence

“Substantial evidence” is defined as that evidence which, although less than a preponderance, nevertheless is sufficient to convince a reasonable mind of the credibility of a position taken on an issue, when no evidence on the opposing side clearly compels another finding or conclusion. Therefore, the “substantial evidence” rule requires less in support of a finding or conclusion than the “weight of the evidence” rule. Evidence on one side of an issue need not possess greater weight or be more convincing and credible to be “substantial.”

D. Applying Substantial Evidence Rule

To determine whether an ALJ's decision is supported by substantial evidence, the analyst first must study each finding made to resolve an issue in the case and the evidence the ALJ cites to support the finding. The analyst must then study the record as a whole (i.e., the evidence cited by the ALJ in support of his or her findings and all other evidence of record) to determine whether the ALJ reached a conclusion consistent with those findings.

The Appeals Council will not substitute its judgment for that of the ALJ. The fact that the ALJ could have made different findings based on the evidence of record is irrelevant. When the ALJ clearly misinterpreted or incorrectly evaluated evidence upon which the decision was based, the decision is not supported by substantial evidence.

If the evidence cited by the ALJ is not substantial, but other substantial evidence in the record supports the ALJ's conclusion, the Appeals Council will grant review for corrective action. If the record is otherwise complete, the Appeals Council will issue a decision. However, where the record is incomplete or credibility and/or subjective complaints are at issue, the Appeals Council will remand the case to an ALJ for further proceedings. The Appeals Council generally will not review a favorable decision on its own motion if the record contains substantial evidence to support the ALJ's ultimate conclusion.

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-5.html

I-3-3-5. Broad Policy or Procedural Issue

Last Update: 9/08/05 (Transmittal I-3-36)

In studying a case, the analyst must be alert to the possible existence of significant questions of law, policy, or procedure. When an analyst decides to recommend that the Appeals Council review an ALJ's decision under this category, the analyst will route the recommendation through the Branch Chief and Director of Operations.

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-6.html

I-3-3-6. New and Material Evidence

Last Update: 9/08/05 (Transmittal I-3-36)

A. General

In deciding whether to review a case, the Appeals Council will consider any new and material evidence received. When a claimant or representative submits additional evidence, it must be both new and material to warrant the Appeals Council's consideration. Evidence is new when it is not duplicative, cumulative or repetitive. It is material when it affects the ALJ's findings or conclusions and relates to the time period specified in section B. below. Black's Law Dictionary defines material evidence as “such as is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.” When new and material evidence has been submitted with a request for review, the analyst will apply the weight of the evidence rule instead of the substantial evidence rule in deciding whether to recommend review action to the Appeals Council.

B. Closed Record

The Appeals Council will consider the additional evidence only if it relates to the period on or before the date of the ALJ's decision.

The “closed record” regulations at 20 CFR 404.976(:) and 416.1476(:) apply to:

1.

Title II claims based on an application filed after June 30, 1980.

2.

Title XVI claims based on an application filed after April 30, 1986.

3.

Title II claims not based on an application (e.g., cessation or termination cases), effective with requests for review filed on or after February 9, 1987.

The closed record regulations do not apply to Title XVI claims not based on an application (e.g., cessation or termination cases).

NOTE:

For Title II claims, when the date last insured (disability insurance benefits), the last day of the prescribed period (widow's insurance benefits based on disability), or the date the claimant attained age 22 (child's insurance benefits based on disability) predates the date of the hearing decision, evidence which pertains to the period after the earlier date is not material to the case.

http://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-7.html

I-3-3-7. Other Bases for Appeals Council Review

Last Update: 9/08/05 (Transmittal I-3-36)

In evaluating a case, the analyst must ensure that the ALJ's decision properly addresses those issues identified by the Circuit Courts as significant. If the Appeals Council finds a basis under the regulatory criteria for granting a request for review, an Appeals Council decision will discuss any significant circuit issues. The rationale must demonstrate that the Appeals Council has properly considered the issue according to circuit law. In cases the Appeals Council proposes to remand, if the hearing decision did not adequately respond to issues which are of particular concern in that circuit, the remand order must so specify and include a verbatim recitation of the relevant excerpt from the applicable circuit court decision.

NOTE:

Adjudicators of disability claims of New York State residents involving medical or vocational issues are reminded that they are required to apply the controlling Second Circuit holdings set forth in the Manual of Second Circuit Disability Decisions attached to the instructions for implementing the Stieberger court-approved settlement (see I-5-4-13).

[free_spirit_etc]

Yep. It is frustrating. And you can fight it. But it will take quite some time now. AC appeals are not fast.

If you are not comfortable with your attorney, you are always entitled to get another one - but that is not always easy at this stage of the game. Your current attorney is more familiar with your case. But as the local attorney has indicated she is willing to do your appeal for you, you might be able to ask if she would be willing to take your case even if the current attorney is willing to file an appeal. She isn't really allowed to try to "steal" you away from another attorney - but you are certainly free to fire and hire attorneys on your own.

David Traver has some interesting posts on his forum SSA Connect http://ssaconnect.com/ about challenging VE testimony.

Here is a portion of one such post:

http://ssaconnect.com/component/option,com...flexible+facts/

For those of us in the legal profession, specifically those who represent the disabled a social security hearings, we usually encounter flexible fact arguments at the VE-testimony portion of the case. Indeed, there comes a time in most hearings where the ALJ announces that the remainder of the hearing will be a flexible-fact event. The ALJ might say, "I am going to ask a series of hypothetical questions that I may or may not adopt." Fair enough, we're in flexible-fact land from the ALJ's perspective. Fair warning given. It's not a debate. We don't try to debate. This is something else entirely. It is breed of goose that only lives at ODAR. We soon learn how to herd such geese using things other than debate.

Of course, there are other elements of this trip to flexible-fact land that are often unexpected by the neophyte attorney. For example, since there is no data source that will allow the VE to honestly answer the ALJ's hypothetical questions about the labor market / RFC / number of jobs nexus within 30 seconds with no prior notice of the questions, the VE typically must make up all all the answers. Thus, the VE is completely free to vary the answers from hearing to hearing, and even within a single hearing, as the VE sees fit, and often with the assistance of the ALJ. Welcome to flexible fact land. Many attorneys are surprised to see that is impossible to pin down the VE on the facts. They later learn there were no facts.