Social Security Administration

Office of the Regional Chief Judge

SSA ODAR Regional Ofc
Suite 2900 M/S 901

701 Fifth Street
Seattle WA 98104-7075

The attorney for claimant hereby requests review of the Fee Agreement Determination of the above named claimant, such determination made by Administrative Law Judge Dan R. Hyatt .

Attorney Daniel Bernath performed at a level at or higher than minimum level in this Fully Favorable decision. There is no authority for ALJ to make this order regarding competency. Furthermore, the basis for ALJ ’s order is forbidden by HALLEX I-2-12 C., 4

There is no requirement that the a representative meet an ambiguous standard set by an individual ALJ on a case by case floating basis to have the Social Security Administration approve a fee agreement;

 

The California Bar Association has tested attorney Daniel Bernath with a three day test in 1984 (the “bar exam”) and determined that he can perform at a minimum level as an attorney at law. Bernath over the past near quarter century has always met his continuing education requirements of the California Bar and more. (Exhibit Two, incorporated by reference)

Interestingly ALJ has praised attorney Bernath when he revealed that he spends an hour each day reading journals, learned treatises, practice guides, Social Security Disability publications, etc., each day. Bernath also told ALJ that he regularly consults with a fellow attorney who was once an attorney-advisor at ODAR and ALJ thought that was a splendid process.

Bernath used to be a clerk for ALJ and the other judges at Portland ODAR, something ALJ inexplicably continues to deny. (Exhibit One, P2, Para 3. repeatedly states, “you were never my clerk.”) It would appear that ALJ has taken an special interest in Bernath leaving his clerk’s job to become one of the most successful Social Security representatives at the Portland ODAR office.

Because of the extreme tension between ALJ and Bernath, one of his former clerks, Bernath sought to reach a peace with ALJ by writing a very conciliatory letter to ALJ (Exhibit 5) and when the uncomfortable conditions continued at the hearings, also to have a private meeting with ALJ . He met with ALJ on January 14, 2008. (Exhibit Two) At the meeting revealed that he would put attorney Bernath out of business by awarding Bernath only “$100 in attorney fees in each case“, (even in the cases where ALJ has yet to hold hearings or even review the file).

With no authority for such an order, ALJ also requires that Bernath and other attorneys write a bar review and/or Federal District Court quality brief for each claimant (Exhibit Three) or ALJ postpones the hearing “five times” for five or so months for each postponement. He states that Bernath and others should take “hours and hours” to research and write this brief; a brief ALJ will not rely upon as he has already done his own analysis of the case.

Again, a conservative analysis of ALJ ’s statement and actions may reveal that he is unhappy that one of his former clerks has gone from his assistant to becoming one of the most popular Social Security representatives with the claimant’s before Portland ODAR. An analysis may conclude that this ALJ simply wishes to cause additional burden to all representatives who practice before him-a representative who is performing well according to his win rate and his clients’ satisfaction. (Exhibit Four)

Indeed, ALJ has called Bernath “a moron”, (Exhibit One) has threatened to have him physically “thrown out” from the Social Security hearing room because he was moving too slowly in packing up his exhibits from a hearing and as he has done with clients of Lowry, repeatedly tells Bernath in front of all his clients that Bernath is a “terrible lawyer” and “all the judges think so” and whatever memo he presents to ALJ is inadequate for one reason or the other as he berates attorney Bernath before his shaking client.

Bernath has written humble and conciliatory letters to ALJ but to no effect. He has also thanked ALJ for “your help and guidance” and “thank you Judge, I’ll do it that way. You’re the judge and I’m the lawyer”, (or words to that effect) during hearings but ALJ ’s obvious anger persists.

ALJ has no authority to devise and enforce his own personal criteria for which attorney before permitting an attorney-fee agreement with claimant to be approved. A reading of HALLEX and all other authority in this matter indeed forbids ALJ ’s ambiguous, devoid of Notice/Due Process order

4. Factors Not to Consider

a. Representative’s Hours and Services

…the representative’s specific services are not conditions for approval of a fee agreement.”

HALLEX I-2-12 C., 4 (Last update l/28/03)

Here, ALJ Claimant is stating that this lawyer of nearly a quarter century with one of the largest and most successful Social Security practices in Oregon has not provided ANY competent “specific services.” It is black letter law at HALLEX I-2-12 C., 4 that ALJ cannot make such a determination and therefore he has erred and the fee agreement between claimant and her attorney at law/representative should be approved.

Attorney Bernath became a member of the California Bar in December 1984. Thirteen years ago, in July 1995, at a time when attorney Bernath was not practicing law and was voluntarily inactive and thus “ineligible” to practice and for a period of a few months Bernath was deemed “ineligible” to practice law because he put child support payments into a trust fund for his child rather than pay it to his ex wife because she violated a child visitation order. This is called an “administrative action” by the Bar Association and not a “suspension.” That dispute with Bernath and his ex wife was settled amiably. Bernath has no public record of discipline as an attorney since he was sworn in as a member of the bar in December 1984.

Bernath advertises on the internet at http://www.DisabilityPaycheck.com There he correctly states that he is a “Lawyer for nearly a quarter century click here” (Exhibit Six) The click here is a link to the California State Bar website page with Bernath’s profile information and “Status History.” (Exhibit Seven)

There, it clearly states that Bernath “This member is active and may practice law in California.” The Status History states in relevant part:

l/1/1995 Inactive (voluntary-not eligible to Practice Law when “inactive”, dues go to $50 a year from $500, CEB obligations are suspended till active again)

ALJ statement that Bernath did not provide “accurate and complete information” regarding Bernath’s becoming voluntarily inactive, having an administrative action when he was inactive flies in the face of the evidence Over a year ago on February 22, 2007 and then again on April 4, 2007, Bernath wrote to ALJ stating all facts regarding this and how he was not suspended by the California Bar.

The representative from the California Bar has stated that Bernath was not suspended by the bar but by operation of law and it is not considered to be a “suspended by the bar.” The Oregon Bar Association has referred the allegation, that Bernath “lied” when he states he was not suspended by the bar to the California Bar Association on at least two occasions. Both times the California Bar has stated that there is no basis for the complaint, most recently December 1, 2006 (Exhibit 8).
A new complaint has been made (the third one) from an anonymous source after a hearing where ALJ was the administrative law judge and Bernath was the representative. The “source“ has violated a claimant‘s privacy by sending the claimant‘s confidential information across state lines to an organization that has no jurisdiction over attorney Bernath. This would appear to be an irrational attempt by someone to once again put Bernath out of the business of representing Social Security claimants.

Respectfully,

Daniel A. Bernath
Attorney at Law

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