Thursday, March 13, 2014

Appeal your SSDI denial into Federal Court



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
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
                                                            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.







[1] Pro Se Civil Guidebook, www.mnd.uscourts.gov/Pro-Se/GuideAndInfo.shtml

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