I
just finished watching the Robert Redford movie “All is Lost”. It started me thinking about that case in
which benefits were not awarded at the initial claim level, or at the
reconsideration, or before the Administrative Law Judge (ALJ) and finally, the
Appeals Council (AC) found no reason to change what the ALJ had decided. As bad as it may seem, if you believe you
have a good case, all is not lost! You can take your case into the Federal
Court system.
Things
get much more formal when you take the case into federal court. There are
special rules in each district, and many judges have special procedural rules
that apply to cases assigned to that judge.
More importantly, Social Security now has an attorney to represent it’s
interests. Last but not least, there is the requirement of briefing the
issue(s) in your case. Most attorneys
will look at a case very closely before a decision is made to take a case into
the Federal Court. The amount of work
needed to present a brief really requires that there must be a good issue. Without a good issue, an attorney will not want
to invest the amount of work that is needed at this level of appeal.
Let’s
say that your case has merit and you believe that the ALJ was wrong when he
denied benefits in your case. What is
the next step?
First
thing to do is to check the calendar.
You have only 60 days from the
date of the decision by the Appeals Council to file a case into Federal Court. (If you need additional time, or have a
reason for the delay, you can request additional time from the AC (not from the
Federal Court—you are not in the Court yet)).
If
you are within the 60 day time limit, you now need to draft a complaint.
What
is a complaint? A complaint is a pleading which starts an
action and sets forth a cause of action.
It must be drafted carefully to properly state the factual as well as
legal basis for your claim.
Although
some leeway is given to pro se parties (people proceeding without counsel), as
to the content of the complaint, there are basic rules concerning the basic
content of a complaint. (Before an attorney may take up representation s/he may
request that you provide an affidavit indicating that you do not owe the
federal government any money, and that you waive any requirement that attorney
fees (under the Equal Access to Justice Act) be paid to you; but directly to
the attorney if you are successful at this level of appeal. The reasons for this are subject of another
blog.
What
are the basics? Your complaint must be
typed or printed legibly in English on 8½ x 11 inch paper, double spaced, using
one side of the page only, typed in 13 point font, and must contain your
original, not photocopied, signature. There is no requirement as to the font,
although the U.S. Supreme Court prefers Century.
You
are the plaintiff. You must write your
name as the plaintiff in the caption and include your Social Security number
(confidentially). The Commissioner of Social Security is the only proper
defendant in an appeal from a final decision by the SSA. The Commissioner would be listed in the
caption as the Defendant. If you do not know the Commissioner’s name, you can
write “Commissioner of Social Security.”
In
the body of the complaint you want to set forth the nature of your disability,
the date your disability began, the date of your hearing and the date of the
Administrative Law Judge’s decision. You can attach a copy of the Appeals
Council’s letter (the “final decision”) at the end of your complaint.
The
following complaint form is provided only as a guide. If you are putting your case into Federal Court,
it is your obligation to correctly follow the rules so that your complaint
complies with requirements of the jurisdiction in which the court is housed (venue).
UNITED STATED DISTRICT COURT
DISTRICT OF MINNESOTA
-------------------------------------------------------------------------------------------------
)
Disabled Claimant, )
)
Plaintiff, )
)
-vs- ) COMPLAINT
)
Carolyn Colvin, )
Commissioner of )
Social Security, )
)
Defendant. )
)
-------------------------------------------------------------------------------------------------
Preliminary Statement
1.
This is an action for
review of the final decision of the Commissioner of Social Security
(hereinafter “Commissioner”) pursuant to 42 U.S.C.A. §§ 405(g) and 1383(c) (3).
2.
By this action plaintiff
seeks a judgment reversing the final decision of the Commissioner denying him
Disability Insurance Benefits under Title II of the Social Security Act, 42
U.S.C.A. §§ 401 – 431 and directing the Commissioner to award such benefits to
plaintiff both retroactively and prospectively.
Jurisdiction
3.
Jurisdiction over this
suit is conferred upon the Court by 42 U.S.C.A. §§ 405(g) and 1383(c)(3) as an
action to review a final administrative decision of the Commissioner denying
Disability Insurance benefits under the Social Security Act.
Parties
4.
Plaintiff is a resident
of Minnesota, and a citizen of the United States. His Social Security number has been attached
to the copy of this complaint that was served on the Commissioner of Social
Security.
5.
Defendant is
_______________, Commissioner of Social Security. In this capacity he is ultimately responsible
for the approval or denial of all applications to the Social Security
Administration for Disability Insurance (DIB) benefits, including those
benefits sought by the plaintiff herein.
Facts
6.
Plaintiff applied for
Disability Insurance benefits on _________________ alleging disability
insurance benefits beginning _____________.
7.
The claim was denied
initially on ____________. Subsequently
plaintiff filed an application for reconsideration and it was denied on
____________.
8.
Plaintiff filed written
request for hearing before the Office of Disability Adjudication and Review on
_______________.
9.
A hearing that plaintiff
attended was held on ________________ in Minneapolis, MN.
10.
On
__________________, the Honorable
_______________ Administrative Law Judge, signed a decision finding that
plaintiff was not disabled under sections 216(i) and 223(d) of the Social
Security Act.
11.
Plaintiff then requested
review by Appeals Council. On
_______________ the Appeals Council issued a ruling that denied plaintiff’s
request for review.
12.
The facts of this case
are more fully set out in the record of the administrative proceeding which
must be filed in this Court by defendant pursuant to 42 U.S.C.A. §§ 1383(c) and
405(g).
Statement of Case
13.
The decision of the
Administrative Law Judge was erroneous,
not supported by substantial evidence, and /or it is contrary to law.
Wherefore, plaintiff requests that the Court reverse the
decision of the commissioner and grant plaintiff DIB benefits, award attorney’s
fees, and grant such other and further relief as this Court may deem just and
proper.
Dated:
_____________________ ____________________________
Claimant’s
name
With the Complaint drafted, the next step is to
file it with the Court. If you do not
have the money necessary to pay the filing fee ($400.00 at present), you can
prepare an Application to proceed without payment of fee. The court will review application
and if it finds that your income and resources are below the means it deems
necessary to pay such costs, filing fee, etc., it may enter an Order allowing
you to file without the payment of costs.
After the Court accepts your filing of the Complaint,
it will issue a Summons. It is a legal
document issued by the Court. It is served
upon the defendant with the Complaint to inform the defendant that a legal
action has started and the defendant is a party and needs to provide an answer
if the defendant does not want judgment entered against her/him. You then have 120 days to service the summons
and complaint. The defendant will have
60 days to respond.
I have mentioned that you must serve the summons
and complaint, but how and on whom?
Under Rule 4 of the Federal Rules of Civil
Procedure, you need to serve the following in person or by certified mail:
The United States Attorney Carolyn V. Colvin
For the District of Minnesota Acting Commissioner of Social
600 U.W. Courthouse Security
600 U.W. Courthouse Security
300 South 4th Street Office of
General Counsel
Minneapolis, MN. 55415 Social Security Administration
611
Altmeyer Building
Social Security Administration 6401 Security Boulevard
Office of the Regional Chief Counsel Baltimore, MN. 21235
OGC – Region VI
1301 Young Street, Suite A702 The United States Attorney
Dallas, TX 75202-5433 General
Dallas, TX 75202-5433 General
10th
& Constitution Avenue NW
Washington,
DC 20530
The parties and addresses are not fixed in
stone, so a word to the wise, check the addresses and parties at the time you
file your case.
After your case is filed the Court will assign a
Magistrate Judge and a District Court Judge to your case. If both parties agree, the Magistrate Judge
can handle the entire case.
You will receive an Answer from the
Government. You than need to prepare,
serve and file your Motion for Summary Judge and Memorandum of Support.
Your
memorandum analyzes the decision and argues it is in error based upon evidence,
medical evidence and other, in the file (you cannot bring up new evidence at
this time), the law, testimony from the hearing, in an attempt to persuade the
judge that the ALJ failed to properly consider the evidence or to otherwise
make a decision in accordance with the law.
Hopefully
you get a decision in your favor. If not,
there is a right to Appeal to the Circuit Court of Appeals. The procedure to get into the Circuit Court
of Appeals is not part of this blog.
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