I received a number of answers to yesterday's "quiz", many of them having to do with the Vocational Expert testimony in the case. Those answers may have merit but I am sure that some would argue with them.
The issue that I was asking about is indisputable. It strongly appears that no one involved either at the Administrative Law Judge (ALJ) level, the Appeals Council level or the District Court level recognized that the allegation of statutory blindness changed everything.
For purposes of statutory blindness, the date last insured for Social Security Disability Insurance Benefits, which is what the Plaintiff in this case was trying to get, requires only the claimant be fully insured. The separate standard of disability insured status is dropped. This makes it much easier for a person who is blind to meet the insured status requirement.
It is conceivable that a person would last meet the fully insured and disability insured standard on the same date but that would be rare. If that had happened it should have been addressed in the ALJ decision. Enough of that decision is quoted that it seems most unlikely that this is the case. It is certainly possible that the Plaintiff in this case has never met the statutory blindness requirements but that is impossible to tell from this opinion since both the ALJ and the District Court stopped looking at the evidence after the date that the claimant last met the special disability insured requirement. Indeed, it appears that there was little or no evidence in the record after the date that the Plaintiff last met the special disability insured requirement because no one thought that was relevant -- but it was!
Instead of being a case where the ALJ needed only to look at the evidence up to the date that the Plaintiff last met the special disability insured status requirement, which was December 31, 2001, this was a case in which the ALJ needed to look at the evidence of all of the Plaintiff's impairments, which went beyond visual problems, up to December 31, 2001 under the regular disability standard but then look solely at the visual problems to determine whether the Plaintiff was statutorily blind until the date that the Plaintiff was last fully insured. This makes this a unusual and complicated case. That complication should have been addressed in the ALJ decision but it was not. It is entirely possible, even probable, that the Plaintiff remains fully insured today. You only need 40 quarters of coverage to be fully insured for life and this Plaintiff probably earned those 40 quarters a long time ago. Since visual problems often get worse with time and since December 31, 2001 was quite some time ago this opinion gives me an uneasy feeling.
So who got it right? Here are the ones I received:
So what does the low number of correct answers tell us? What does it tell us that this case went so far with so fundamental an error? Anybody slapping their head? What do you think?
The issue that I was asking about is indisputable. It strongly appears that no one involved either at the Administrative Law Judge (ALJ) level, the Appeals Council level or the District Court level recognized that the allegation of statutory blindness changed everything.
For purposes of statutory blindness, the date last insured for Social Security Disability Insurance Benefits, which is what the Plaintiff in this case was trying to get, requires only the claimant be fully insured. The separate standard of disability insured status is dropped. This makes it much easier for a person who is blind to meet the insured status requirement.
It is conceivable that a person would last meet the fully insured and disability insured standard on the same date but that would be rare. If that had happened it should have been addressed in the ALJ decision. Enough of that decision is quoted that it seems most unlikely that this is the case. It is certainly possible that the Plaintiff in this case has never met the statutory blindness requirements but that is impossible to tell from this opinion since both the ALJ and the District Court stopped looking at the evidence after the date that the claimant last met the special disability insured requirement. Indeed, it appears that there was little or no evidence in the record after the date that the Plaintiff last met the special disability insured requirement because no one thought that was relevant -- but it was!
Instead of being a case where the ALJ needed only to look at the evidence up to the date that the Plaintiff last met the special disability insured status requirement, which was December 31, 2001, this was a case in which the ALJ needed to look at the evidence of all of the Plaintiff's impairments, which went beyond visual problems, up to December 31, 2001 under the regular disability standard but then look solely at the visual problems to determine whether the Plaintiff was statutorily blind until the date that the Plaintiff was last fully insured. This makes this a unusual and complicated case. That complication should have been addressed in the ALJ decision but it was not. It is entirely possible, even probable, that the Plaintiff remains fully insured today. You only need 40 quarters of coverage to be fully insured for life and this Plaintiff probably earned those 40 quarters a long time ago. Since visual problems often get worse with time and since December 31, 2001 was quite some time ago this opinion gives me an uneasy feeling.
So who got it right? Here are the ones I received:
- Anonymous
- JOA
- Anonymous
- Anonymous
- Anonymous
- Ralph Wilborn
- Anonymous
So what does the low number of correct answers tell us? What does it tell us that this case went so far with so fundamental an error? Anybody slapping their head? What do you think?
11 comments:
I must confess that I did not know this, and have not encountered this situation before.
what it tells me is that the attorney/representative that helped this claimant was incompetent. As many of them are.
Don't get me wrong, there are some GREAT reps, but the majority are either rushed, don't care or don't spend the time needed to actually get to know the rules or their clients.
It tells me that across the board, at every step, from the DDS who took the claim, to the clerk who developed the evidence, to the judge that heard the case, to the attorney who wrote the decision, to the AC clerk who did an initial review, to the AJ who denied the appeal, to the OCS clerk and atty who handled the case AND to the district court - EVERYONE is caving in to the pressure of the backload and churning too many cases. No body took the time to really look at the case - it was labeled a date last insured issue and the label stuck.
No one has time to look for zebras. We deal with hundreds of horses each day. But sometimes things that superficially look like horses really are zebras.
I am embarrassed to have missed this, because I have been representing claimants for 6 years. I can only say that I have yet to have a client who had a severe visual problem as part of his/her disability, so I am not as familiar as I should be with the rules pertaining to statutory blindness. This quiz was helpful, because I will keep this in mind for when I do have such a client.
Here's my take:
(1) The ALJ decision indirectly addressed the allegation of statutory blindness.
The ALJ explained that P never met the required visual acuity of 20/200 or less in the better eye after best correction prior to the DLI (Dist. Ct. FN3). This conclusion tracks the language of listing 2.02.
The ALJ also concluded that listing 2.03 was not met, and included language tracking 2.03A (Dist. Ct. FN 4).
Section A, subsection 2 of the preamble to the Special Senses and Speech listings states, "You have statutory blindness only if your visual disorder meets the criteria of 2.02 or 2.03A."
Thus, the ALJ found, indirectly, that P did not have statutory blindness prior to the DLI.
(2) Even if the ALJ had addressed the statutory blindness issue in a direct manner, the case would still fail on the facts.
P's visual acuity measurements were 20/30, 20/60, 20/40 and 20/100 on either side of the DLI (Dist. Ct. page 5), which is nowhere near what is required for statutory blindness.
Therefore, P would not have qualified for the Title II disability freeze before his DLI expired. This is what would have needed to happen in order for his visual problems to become outcome-determinative.
I think POMS 26001.005 is the relevant provision.
-N.
-N needed to go one further section along, to DI 26001.010. -N would then have seen a discussion of what needs to be done for someone who is fully insured but is not insured under the ordinary DIB requirments:
1. Fully Insured Only
In those cases where the FO advises that the claimant: (1) does not meet the regular DIB insured status requirement (the 20/40 test or alternative for young workers) at the alleged onset of disability (AOD) or later, (2) does meet the fully insured requirement at AOD or later, and (3) has alleged a visual impairment (however slight), the DDS should prepare a substantive determination on the issue of statutory blindness. See DI 11005.045C.2.b., second NOTE for instructions on how to document the stat blind date last insured on the EDCS 3367 screens or paper SSA-3367 (Disability Report-Field Office) when there is also a different regular date last insured.
JOA
http://easterniowanewsnow.com/2011/04/26/police-investigate-social-security-disability-advocate/
That's interesting, JOA.
It certainly seems that DDS determination doesn't get prepared in every case alleging visual impairments. Is that your experience?
In light of DI 26001.010, then, the appeal might have/should have focused on the technical deficiency at the DDS level. Or is there a better argument?
Even if this type of argument had been raised by this point in the game, I still think the ALJ decision makes it clear on these facts that the DDS determination on statutory blindness would not have been in claimant's favor.
So, it probably wouldn't have changed the outcome in this case. On another set of facts, it might have made all the difference.
-N.
Dear –N:
Because I haven’t left SSA yet, I’m disinclined to say more than just a little about a real case. But I don’t mind sharing an impression, as long as you understand that like many another impression, mine could be wrong.
It’s my impression that the State agencies are much deeper reservoirs of expertise for such technical issues as blind insured status than can be found in hearing offices or in the Office of Appellate Operations (the AC). My own shop is perhaps the strongest example of how recent hiring has diluted experience: of 550 people who do my job in OAO (with a different job title) 400 were all hired 5/09 or later—many of them later.
Here, however, from the USDC’s discussion of the State agency determinations, it may well have been that the State agency dropped the ball, meaning that there was no State agency determination on blindness for the period after the DLI.
What didn’t come out of Mr. Hall’s answer to his own quiz is that if this is what happened
1. then unless the Administrative Law Judge saw his or her way clear to issue a fully favorable decision,
2. the Administrative Law Judge had no jurisdiction to address post-DLI blindness issues and could only dismiss with respect to post-DLI blindness and return the case to the State agency for a determination on post-DLI blindness.
There’s a regulatory basis for this. But the easier explanation is found in subregulatory instructions, at HALLEX I-2-2-10. Here’s part of the text of that section:
An ALJ may not raise as a new issue any issue which is within the jurisdiction of a State agency under a Federal-State agreement concerning the determination of disability unless the ALJ is prepared to issue a decision which is wholly favorable on the issue of disability. If the decision is not wholly favorable, the ALJ must rule on the issues within his or her jurisdiction, and dismiss the request for hearing with respect to the issues within the State agency's jurisdiction. The ALJ must return the claim file to the State agency for action on the issues within their jurisdiction.
JOA
* After chatting with a co-worker, I'd add:
Relation back is the heart of the matter, i.e. P's atty should have asked the ALJ to relate back the more significant, later vision findings to a pre-DLI date. With the preponderance of near-DLI evidence nowhere near the 20/200 mark, P would have been unlikely to meet his burden on this.
Potential issue? Yes.
Error? Probably not.
re: ALJ/AC/District Court not raising the potential issue, I remain unaware of any law or regulation that requires an ALJ decision to address every single POTENTIAL issue in a case.
re: JOA's helpful response, the standard of review is de novo. DDS didn't make a statutory blindness determination, as POMS directs, but the agency corrected the problem upon administrative review, i.e. the ALJ made an adverse statutory blindness determination (2.02, 2.03A not met).
(On this final point, I should have cited 20 CFR 404.1581, not just the dinky 2.00 preamble.)
There seems to be some wheel spinning here, but the issue is, on a stat blind case, there (probably) is no DLI. Therefore, if the ALJ did not look at whether the claimant was legally blind as of the date of the hearing, the ALJ made a fundamental error. I will add as a caveat that a legally blind person must still be fully insured, so I suppose there is some microscopic chance that the reference to DLI refers to the DLI for fully insured status.
It is also (slight more) possible that the ALJ did in fact address stat blindness through the date of the hearing decision and this somehow got garbled in the recitation of the facts by the Court.
Mike Walters
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