Wednesday, December 20, 2017

Judge Says He Has No Discretion to Roll Back Three Months

Yep, that is what the ALJ told me in a pre-hearing conference.  I was taken aback.  That isn't my recollection and I have a grasp of the regulations.   Client turned 55 some eight years ago, three months after the date last insured.  I expect a grid finding on the remote onset at the DLI so the judge's statement leaves me scratching my head.  My client was in the waiting room reviewing her E exhibit statements in this USDC remand. I pull out my Google Pixel phone and I do what every representative should do, google it. 

Tying it in:  Social Security Ruling ... no, that isn't right, it is in HALLEX.  Start over:  HALLEX borderline age.  Boom  Feeling like I might have missed something so I verbally dance while reading quickly on the first entry:  HALLEX I-2-2-42.  "Judge, the HALLEX says you have discretion at a few months before the age change to find disability as of the date last insured." 

Judge asks for the cite.  HALLEX I-2-2-42 paragraph B, 1, second bullet.  "You have it backwards counsel."  Deep breath.  Just read the pertinent parts out loud and the judge will get it:

ALJs will assess whether the claimant reaches or will reach the next higher age category within a few days to a few months after the:
 . Date last insured;

Judge reads along.  "Oh, I read that wrong before.  I stand corrected.  Go get your client." 


Serendipity for the day:  HALLEX refers to POMS DI 25015.006 for additional guidance on the borderline age situation.  Need to remember that the next time an ALJ tells me that the corps is not bound by POMS.  

Lesson for the day, the ALJ will get it absolutely legally wrong.  Don't back down; correct the mistake.  Use your smartphone or other device.  It is impossible to anticipate every wrong thing a judicial officer or witness might say.  It is our obligation to correct on the fly and dance like a person possessed as we figure it out. 

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