(503) 639 6666 ussyorktown@comcast.net

Appeals Council

Social Security Office of Disability Adjudications and Review

5107 Leesburg Pike

Falls Church VA 22041-3255

To Appeals Council:

Please vacate your order of dismissal of this claimant’s application, (undated). I have been retained as the attorney for the above named claimant on October 25, 2006. Previous to this, claimant was not represented by an attorney at law or any other type of representative.

Claimant had a hearing set for July 11, 2006. Claimant is 53, closely approaching advanced age and suffers from ailments that cause him to vomit often during the day, (Hepatitis C, declining kidneys, etc.) and prevent him from even arising many mornings. This inability to rise some mornings because of his various impairments occurred on the day of the hearing, July 11, 2006.

Claimant did in fact telephone ALJ , by and through the Office of Disability Adjudication and Review prior to his hearing on July 11, 2006 and told the employee of Social Security that he was too sick with weakness and vomiting to attend the hearing on that day. He requested that the hearing be set to another day so that he would have time to recover.

As such, claimant made a motion to continue the hearing.

At no time did Judge make a ruling on this motion to continue the hearing date to another hearing date.

Claimant then stayed incapacitated for several days and in the hopes that bed rest would remedy his total incapacity. But, he was wrong and he had to see a medical doctor to pull him out of his incapacity. He did in fact seek and was given treatment by an MD and this MD did in fact provide two written statements attesting to these facts, including the statement, “prolonged bout of nausea, vomiting and belly pain in early July that caused you to miss your disability hearing was also related to your chronic active hepatitis C.” signed by Steven, MD.

Judge  dismissed claimant’s application (he filed for a hearing on May 20, 2005 and I estimate that he actually initially filed for disability benefits about a year earlier in May 2004 and thus has been waiting over two years to be granted his disability benefits.)

I invite the Social Security Administration’s attention to HALLEX I-2-4-25(E) which states in relevant part:

E. Claimant Requests Change in the Time or Place of the Hearing

If a claimant or representative requests the ALJ to change the time or place set for the hearing, the ALJ will consider whether the claimant or representative has good cause for requesting the change. If the ALJ finds that the person requesting the change does not have good cause, the ALJ must notify the person of his or her finding. (emphasis added)

Here, claimant contacted ALJ Z by and through her staff and/or employee of the Social Security Administration Office of Disability Adjudication and Hearings and requested that the ALJ set the hearing to a different time. ALJ Z did not notify claimant that she was not going to change the date or time of the hearing in violation of the Social Security Administration’s regulation.

Furthermore, Equitable Principles state, “Equity abhors a forfeiture” and our law also state that before a right or property is taken from a person that there must be Notice and Opportunity to be Heard. Looking to these principals, aside from the black letter law stated in HALLEX, ALJ Z should have notified claimant whether the request to set the hearing to a time and date different than July 11, 2006 under equitable principles.

Finally, the Order of Dismissal AND Notice of Dismissal to claimant has no date, thereby giving no notice to claimant as to when he must act based on the date of the Notice and Order and is therefore fatally defective. The Appeals Council did not consider the failure of the ALJ to rule on Claimant’s motion to continue made on the date of the hearing. The Appeals Council does not give notice to claimant of what he may do if he disagrees with the Appeals Council action and is also fatally defective.

As such, under HALLIX and equitable principles found in the United States Constitution, this dismissal should be set aside and claimant’s hearing should be reset for to be heard in the next 60 days.

Daniel A. Bernath

Attorney at Law