the court my name is margaret engle hart and i'm here on behalf of miss darlene wilson ms wilson is an eighty three year old woman who resides in rural alaska in county she's applied for and been found eligible for supplemental security income based on disability years you were your decide today is whether mrs wilson is eligible for retroactive benefits based on the fact that she received misinformation was true which applies to secure supplemental security income which costs are not just met or application regulation it for sixteen point three fifty one the one preferred evidence and there were many of that and then too there's other evidence and there was other evidence but it has this line and we will not find it we give you misinformation based solely on your statements yes joyner first that stat the social security administration and ourselves both the difference is not fatal because people can be a little mixed up on dates and still be right still what bothers me is somebody has to decide what happened and seems like you are being presented in situations where you are being presented evidence to illustrate has the obligation to make an expressed written finding if they believe in any way that the testimony is compromised he didn't do that he merely ignored it which is violet which is  had every right to take that into consideration but this court has consistently held that if he takes out of consideration he needs to make an expressed written finding that in some way her testimony is compromised he didn't do that there and it's taken as a whole if you take her  not meeting your burden of proof or one of those things and you know you are but if you look at the information this court has never decided what the burden of proof is and if you look at the testimony that she provided she prevent future provides a clear picture of what occurred intersection on june the fourth two thousand and two and then there are a written statement saying that it was june second two thousand and the jury hears that listens to the evidence and  at that he just wasn't persuaded that this would happen the way he he puts it is he didn't call her a liar he didn't save that she wasn't a credible witness have but he sa that alone wouldn't be enough and then he says the daughter's testimony really won't cut it and the first reason he gives is that a written statement is over four years after the event and then he says he just snapped basically when he says it doesn't meet the burden what he's saying is it doesn't persuade me that it's more likely than not that this happened right what he has in his reason was that he didn't provide what's called preferred evidence or written evidence and if you look at the code of federal regulations it doesn't require evidence it requires evidence that can either be written or oral she provided an ample amount of evidence under what's considered other evidence and that's not taken into consideration and it's required to be taken into consideration as they come back to the hawkins question how do you know it wasn't even in his head he's obligated to put that in writing otherwise we have to take it as credible we have to take it as valid and we have to take it into consideration in the determination and you simply disregard it in his head and not writing is not it's not proper and it's not fair were under oath gave the same explanation of why this claimant did what she did and looking at the so rounded context the circumstances in which she found herself whatever possible earthly reason would she have had for doing what she did she had received this kind of information in other words can textually as well as the fact that he did not find them to be not credible i just don't see where else s i and she decided not to when she was told that the state might take her home that's a standard requirement of medicare medicaid program but it's not obviously related to s s i in any way and so the testimony of being true is that they told me that i have to sign over my home to the state if i accept exercise and of course medicaid and that alone does not even if being true does not represent misrepresentation what they're testifying to is an accurate perhaps an accurate summary of what happened and they were told about the medicaid be quire meant and decided not to file their not testifying if they decided not to file because they said she they couldn't remember the name of the employee who with him they have spoken and the regulations seems to expect that in many cases people won't remember the name for example and the employee then we'll take information about these other aspects and that seems to presume that in some cases people won't be able to remember who the employee in recorded transcript fifty to fifty three normal procedures that require that there be a documentation of the actual application process even if an application is a file and that wasn't done in the documentation that could have been there should have been there wasn't there so we start off with not just nothing but but a lack of something that should be there in terms of the preferred evidence then what we have is merely a self serving statement really the only thing that's used in all evidence self serving why that's in favor of the claim that is transcript sixty two which is the declaration of her daughter that for the first time raises the reason for not filing was i own a home my mother owned the home she was living in and they didn't tell me about so i guess i don't understand it as the daughter statement has very little to nothing of more probative value from the testimony and in fact it's inconsistent with the daughter's testimony and so what we have is really only that statement to overcome course of years and again not in this individual's case but the prophylactic reasons the commissioner has these regulations and requirements is because of misinformation case it's not like a disability case it's a case where there may or may not be documentation and we have to go back and pay based on whatever date or year we claim and can convince us was when the misinformation was given you know if there's no documentation whatsoever any claimant could make up could come in and say no it wasn't ninety four ninety nine  record and again that's unfortunately the situation in this information case it can't be entirely subjective you can't allow people to come in even under a declaration under penalty of perjury and say oh it was nine hundred ninety four it was march i remember it seems to me that people say many things that are not true when they're not lying just because they're mistaken it's hard to remember a lot of things and you tend to remember things favorably to yourself well you're out of this don't really see why you're talking about the regulations as presuming a law i'm not talking about presuming a lot i am saying we need to know a lot more than just having a claimant come in and say oh i think it was march ninety four when i applied would have thought it would just be a matter of does the arabs really believe that if it's preferred daughter were saying could have awarded benefits it's just that he decided it was less than fifty fifty chance that that's really what happened that's probably true your honor in the context of everything that was his own of choice for the ministry of law judge and he could have was the type of misinformation exactly when how what was said it could be misinformation to the claimant but we don't know what the claimant told us the same foy's necessarily because again it's been documented and so the claimant herself has full control of the flow of information if the a l j can't consider anything else and here again no credibility is a red herring taken in terms of elderly people whose memories often are not as good as they used to be even those of us who are not elderly may not memories as good as when we were in our twenty's teens and i'm thinking that they can be perfectly honest but a little confused so you look at plausibility and here frankly i thought the recollection of the mother and daughter was totally implausible until i found out that for medicaid you really do have to sign over your  claimant is suing under applies only to mis information where the claimant decided not to apply because for example they were told that some type of income was countable when it wasn't something like that will work what you're saying is that the person of the social security administration would have to talk to her about medicaid that's the normal process yes you're on and would have to tell her she had to sign over her house so the state in order to get her mother's house that's something that could have happened in a normal process medica liens or a common part of the medical i understood what you said not only could have it should have been as part of normal process yes you better get a house she's not living in the house right so the s s i person would have to tell her you've got to sign over their house to the state of california in order to get the medicaid it would be probably not set like that because there are a variety of conditions and having to turn over a house it's not as straightforward but there it is and certainly the person at that point wouldn't be signing over the house they would be perhaps signing an agreement that some day in the future has can only be signed over when a person is institutionalized they're not coming out for example in a nursing home and where there's nobody living in the home who's related and various other conditions very complicated and it's understandable that a claimant could come out of a meeting like that saying well i don't want it she's on medicare or a sick way what has to have happened here assuming that things were more or less normally an interview is one of two things either a mother and daughter got so mad when they heard about the house that they just misunderstood and mixed up what was being told whom about medicaid and what was being told to him about s s i or the social security  employee got mixed up and misspoke and said something in the context of s s i that really only applied to medicaid but it's certainly possible you're on what we have and the allegation after the testimony is just that they i hear you correctly just a little bit earlier to say that the application for s s i the comes an application for medicaid normally yes your honor those are there it's not like there's a separate application administration told ms wilson that by signing this application if you own property or not using it there's the potential  first off i like to say that when applying for social security the discussion medically does not come up until you're found eligible what happened here was she never was found l of a job she was their application was never accepted she went there to apply she told them that she had this house that she was attempting to sell and they told her she was ineligible that's misinformation she should have been told she was eligible because she was eligible based on the conditional benefit rule the second thing and this is an entirely probable situation because a class action lawsuit was filed would last in county as one of the main