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§4.5 — The centrality of the scaling question is not easily over-estimated. In no other aspect of Bitcoin’s concrete historical process has it tended more strongly to outpace – and out-date – its apprehension, such that practical problems overwhelm visionary conceptions, and an agenda inherent to the phenomenon imposes itself. Whatever Bitcoiners might want to talk about, this is the topic that incessantly asserts its priority. It is tempting, then, to extrapolate, and to ask: Can block-size controversy be confidently identified as a perennial primary tension? This question, while obviously speculative (or even science fictional) in appearance, is less intractable than this impression suggests. Insofar as it is answerable, the key can only be transcendental, which is to say: a matter of ultimate or unsurpassable arrangements. We ask, then, what does decentralization reliably necessitate? Bitcoin has a reflexive specialism in this regard. It produces the unalterable, as a synthetic, robust past, or secure cultural memory. Yet the essential point reaches further than this. Like a Leibnizean monad, the whole of Bitcoin is contained within each of its parts. That is what a distributed ledger means. It is the characteristic that enables the system to be disciplined by the criterion of consistency with itself. Each copy of the blockchain provides a check upon every other. Vast redundancy – comparable in principle (if not yet in scale) to the copying of the entire genome within every cell of a metazoan – supports information integrity. The inefficiency of the system, i.e. its extreme functional non-specialization, provides the basis for its robustness. Its decentralization, redundancy, and resilience are conceptually inseparable from each other. It follows, reciprocally, that certain vectors of efficiency optimization will essentially compromise security. In other words, since some degree of centralization is the real implication of the mainstreaming project, its tacit imperative amounts to an economization of security in the name of efficiency. We then glimpse the eternal enemy.
Bitcoin is a settlement system, by design. The process of consensus ‘settles’ upon a timeline of transactions, and this process – by design – is necessarily far from instant. … As such, the blockchain can never support All The Transactions, even if block size increases beyond 20MB. Further layers are – by design – necessary if we want to achieve the goal of a decentralized payment network capable of supporting full global traffic. […] Bitcoin payments are like IP packets – one way, irreversible. The world’s citizens en masse will not speak to each other with bitcoin (IP packets), but rather with multiple layers (HTTP/TCP/IP) that enable safe and secure value transfer or added features such as instant transactions.
§4.52 — It is tempting to see a microcosmic recapitulation of capitalist history in this conflict. It suggests that economic – rather than ideological – competition has been the most formidable adversary of hard liberty. The uncompromised market demands a transcendental price, resourcing the system as such, which many of the most substantial market agents have been reluctant to pay. If economic pragmatism has proven less ruinous to principled capitalism than to principled socialism, the difference is only a matter of degree. “Freedom isn’t free,” the old saw goes, and it seems that economic history supports the proposition. Sacrifice of the market (as such) to the commercial interests of its most significant participants is among the most prominent themes of political economy, considered as a tragic genre. Massive incentive misalignments introduced by the regulatory state devastate the micro-economy, as its most significant private agents defect. The market is treated increasingly as an abused commons. Despite its ingenious incentive orchestration, Bitcoin / bitcoins ontological difference is not invulnerable to comparable dilapidation. Private fortunes explore, motivate, and resource ever more elaborate ways to ‘game the system’ – precisely because there is not, and can never be, any real source of transcendent oversight. The absence of God spawns idols. ‘Trusted third parties’ are not magical impositions. They arose, at least in substantial part, for immanently-economic reasons. To the extent that capitalism in-itself is a learning process, this is the problem it trains upon, and against.
§4.53 — For the ‘hyper-libertarian’ Ultras, Bitcoin is a soft weapon aimed unambiguously at governments and their subsidiary institutions. The inherent unacceptability of the crypto-currency to public – and also concentrated private – government is sheer feature (and not at all bug). Any official approval, beyond mere – and optimally reluctant – tolerance could only be considered an unfortunate indication. Contra the Mainstreamers, the Ultras have no ideological interest in a project of debugging Bitcoin for the purposes of institutional assimilation. The institutions that would assimilate it are, from this hard-decentralist perspective, precisely the “trusted third parties” that Bitcoin first routes around, and ultimately marks for social extermination. Since algorithmic governance is precisely the avoidance of negotiated solutions, it cannot expect to emerge from one.
§4.54 — Among the Ultras, firmness of libertarian principle easily tilts into the wild tracts of piracy. At least historically (and in fact more fundamentally) Bitcoin has an evident affinity with black markets. Bitcoin makes commerce ‘censorship resistant’ – extending the cryptographic protection of information exchange into the wider economic realm. Regulation of voluntary exchange is made radically impractical. By effectively disinhibiting Nozickean ‘capitalist acts between consenting adults’ it facilitates private transactions falling entirely outside the realm of wider social approval. Online proscribed drug markets and gambling were among its enthusiastic early-adopters, but any specification of merchandise or services is a theoretical distractions. The important point is that Bitcoin provides a route-around. It was the first native currency of the dark net. The Open Secret, or ledger of crypto-secured transactions, supports rigorous commercial commitments without penetrating social exposure, or endorsement. The subtle pseudo-paradox invoked by a ‘black market’ is thereby resolved. Everything happens in the open, while masked. There is an inevitable tension between the project of mainstreaming Bitcoin, and the preservation of a heritage which deliberately places political-economic respectability beyond reach. Crypto-currency tilts intrinsically to crime, at least in the sense of the ‘counter-economics’ that extends the commercial horizon beyond the scope of social oversight. All legal restrictions on contractual interaction are insulted (by indifference) even when they are not positively abused. Deference to the polity is re-set automatically to zero. The implicit definition of liberty invoked here is unconstrained commercial discretion. Notably, it is at once a power of money, and a political dissociation of the individual (configured as base-unit of commercial agency).
§4.55 — Ultras and Mainstreamers are engaged in a game with government, pursued along very different strategic lines. Neither (simply) represents government, but government too – in some fashion – gets to play. For governments, Bitcoin presents a complex of opportunities and threats so heterogeneous that it tends to disintegrate the very idea of a coherent state-perspective, both in theoretical principle, and in practical reality. If the state is understood through its own ideal image of legitimacy, as the sphere of public authority, there seems little room for ambiguity. Bitcoin threatens to significantly constrict its scope. Yet the relationship of government – in reality – to the ideal of public accountability is itself necessarily complicated, long before Bitcoin (even in potential) complicates it much further.
§4.56 — While the governmental response to Bitcoin is doubtless guided by a strategy (or strategies) of capture, this does not reduce to an agenda of public regulation, still less suppression, but also includes cooptation in accordance with deep state functions, as well as the private interests of state agents. Official position statements are unreliable indicators, in this regard. Insofar as every real state includes a ‘deep’ or sub-public aspect, it will inevitably relate ambiguously to the emergence of elusive social capabilities, although this ambiguity will be only minimally reflected in its public relations pronouncements. The empowering of private agents to evade state scrutiny and regulation represents a manifest erosion of government or ‘public’ authority, and is almost certain to be denounced on those grounds (if not always transparently in those terms). Yet the crypto-secure transaction systems responsible for such governance complications are also opportunities for covert action, and are therefore to be counted as virtual assets. The things Bitcoin enables are exactly the sort of things ‘secret agents’ want regularly to do.
§4.58 — Such intra-state complexities are compounded by inter-state competition for Bitcoin business. Here, too, there is a coordination problem of daunting intractability. As Bitcoin comes to be recognized as a supranational strategic ‘territory’, national security considerations switch polarity. Even if it might have been preferable (under certain constructions of the dilemma) for states in general to prevent Bitcoin ever arising, such calculations have no purchase upon a world – fractured between states – in which a globally-coordinated response to the emergence of crypto-currency exists only as an incredible fantasy. Differential hospitality to the new monetary technology then becomes the consequential factor. The iron law of modernity holds that, within such a world, anti-capitalist social options are punished at the level of geostrategic leverage. In other words, regimes are disciplined ‘by the market’ – as the left has long lamented. Such dynamics are certain to be positive for Bitcoin adoption, and even essential to its geopolitical lock in. There is a threshold, most probably already passed, across which missing out on Bitcoin becomes strategically unthinkable. Exit-pressure intensifies.
§4.59 — The inception of Bitcoin marks a critical threshold in the history of secret agencies. The agent corresponding to a Bitcoin wallet could be anything. Ultimately, therefore, the games in which it is involved have to be approached with sensitivity to potentialities of extreme abstraction. Insofar as methodological individualism is applied to the analysis, it can presuppose nothing about the nature of the individuals considered. Only their original non-coordination characterizes them. Crucially, no assumption of economic – or wider strategic – rationality is required. Any emergent correlation of Bitcoin holdings to competent performance within the arena is an outcome, not a presupposition. Competence is defined – informatively – through a discovery process (or by synthesis) rather than analytically, through some pre-given model of rationality. A wallet is nothing more than the plot for a player, whose features are left entirely undetermined. It is extraordinarily decoded. The wallet-holder might be anyone, or anything: a man, a multiplicity, a machine-mind, or something yet unimagined. How it thinks can only be inferred from what it does.
 From a classical Smithean perspective, in which the optimization of production is fundamentally associated with specialization through division of labor, Bitcoin-type distributed systems might even be characterized as an anti-economics. The tension thus exposed between the conditions for secure property and those promoted by industrial efficiency has an obviously quasi-Marxian flavor. Industrialization, on what appears to be its main axis of development – in contra-distinction to its crypto-current – exhibits a totalizing tendency inconsistent with the preservation of polycentric order. Organization indicates general socialization, through erosion of all ‘cellular’ redundancy. This is why capitalism only survives in the wild. Domestication destroys it. It is only in the ‘general economy’ – where unrestricted competitive stress selects for resilience over organizational efficiency – that the trend to decentralization is regenerated. A starkly non-Marxian conclusion then follows: It is under conditions of collapse that capitalism is most reliably re-animated. The ‘crisis’ is its womb, rather than its grave. Enterprise does not breed in captivity.
 ‘The market’ is a notoriously Janus-faced concept. In its original sense, a market is a concrete exchange facility. Such a market is always, first of all, a place. Any market bearing a place-name carries some residual trace of this ancestry. The more modern, abstracted sense of markets as global clearing houses, defined primarily by asset-type rather than locality, marks a consistent drift in emphasis, rather than a clean semantic break. Even the most ‘primitive’ market tends to give spatial expression to commercial specialization, in detail. Because the market, as such, does not benefit from private stewardship, and thus falls into coordination crisis of a tragedy-of-the-commons type, it becomes belatedly targeted for redemptive political intervention under ‘neoliberal’ public direction. Only the state can save the market is the perverse conclusion that attests to liberal contradiction sublimed into governing ideology. The same problem was substantially anticipated, but turned in a very different direction, by the Rothbardian left libertarians in their rallying cry to a ‘pro-market anti-capitalism’, or agorism, promoted by strategies of black-market ‘counter-economics’. Betrayal of the market by the cyclopean businesses of the ‘white’ (state-happy) economy is the basic political theme. Much of this discourse could yet come to seem prophetic, precisely because of its drastic failure as a recognizable ideology. No party, however informal, has faithfully conserved it. Insofar as it survives it is because the process carries it forward, automatically. The market, like information, ‘wants to be free’. It has intrinsic teleology, or something indistinguishable from it, robust before every wave of fashionable cynicism that finds new ways not to see it. The alternative – crypto-anarchist – resolution of the contradiction, which secures the market against the politicized public sphere, is exemplified by Bitcoin. The model of the immanently self-secured market has never been more consistently formulated, or implemented.
I’ve long suspected bitcoin was created by a government. Bulletproof protocols usually require peer review, yet there have been zero leaks from the reviewers. Pools of crypto guys who don’t leak stuff are usually employed by governments.
1. To finance their own black operations.
3. A friend suggested this: because they felt their currency would never become the standard reserve currency, and they felt it was better that no one’s be if theirs couldn’t be.
4. A variant of the above: the US did it because it seemed inevitable that the dollar would eventually lose its place as the standard reserve currency, and better to have it replaced by bitcoin that the yuan.
I realize some of these explanations are pretty far fetched, but so is an individual cooking up bitcoin as an intellectual exercise. Whatever the explanation of bitcoin’s origin turns out to be, it will probably be pretty weird.
The Crypto-Current argument is structurally-insensitive to such claims. The creation of Bitcoin by the NSA would be no more discomforting, at a philosophical level, than the catalysis of the Internet by DARPA. Clearly, some such covert ancestry would only sharpen still further the conclusion reached here. Overt conflicts between crypto-currency and the ‘public interest’ provide only very limited strategic insight into the relevant deep-political process.
The Global Intel Hub article merits attention especially for its reference to an NSA document of incontestably extraordinary interest: ‘How to Make a Mint: The Cryptography of Anonymous Electronic Cash’ (1996).
 It is worth comparing the seduction of Bitcoin with the attraction of illegal narcotics to covert government agencies, as a lubricant for the operations of the ‘deep state’ both domestically and internationally. It is precisely those features that make such economic media of negotiation publicly indefensible that also make them operationally indispensable. They are tinted with essential darkness. The potential scandal of disclosure is inseparable from their exceptional utility. Any agency immersed within a competitive environment pursues operational liberty. Darkness is typically its friend.
 The citation is from ‘Bitcoin’s Shroud of Subtlety and Allure’, an essay whose title alone would merit its reference here.
 Bitcoin dehumanizes property in principle. The consequences are as yet inestimable. Development of Digital Autonomous Organizations and Corporations (DAOs / DACs) can be confidently expected to explore the opened frontier concretely. The legal status of the corporate person provides the socket, which once married to DAO economic autonomy, completes the requirements for an illimitable escape of the firm. Consummate dehumanization of the economic agent is then realized. For the decoded ‘User’, see the discussion by Benjamin Bratton on agency positions within ‘the stack’. For more on this topic within the present volume, see Chapter Six.

matches: §4 §4 §4 §4 §4 §4 §4


Are you ready to start your clinical career?
Hold a Masters Degree in Social Work from CSWE accredited program in accordance with §781.301 of the board rules.
Be currently licensed as an LMSW or LMSW-AP with the TSBSWE or be currently licensed at the master’s level in another jurisdiction by having passed the ASWB national examination.
If an applicant is not currently licensed at the master’s level, the applicant with qualifying experience must apply to the board as a Licensed Master Social Worker and pass the ASWB master’s examination. The applicant may also apply for a temporary LMSW license (use Form C). Once the applicant has passed the national masters examination and been granted a LMSW license by the board, the person may apply to upgrade their license to LCSW. If the applicant’s qualifying experience is verified and approved, the applicant may sit for the clinical examination (see §781.301 of the board rules).
Accrue qualifying supervised clinical experience per board rule §781.301.
Apply for the LCSW license.
Pass the national clinical examination administered by the ASWB.
Be employed in clinical position in an agency as defined in §781.102 of the board rules.
Submit a supervision plan with a board approved LCSW supervisor in accordance with §781.302 of the board rules within 30 days of initiating supervision.
In order for a plan to be approved, the social work services performed must be clinical in nature as defined in §781.102. Key clinical duties that must be performed include assessment, diagnosis and treatment (clinical therapy or psychotherapy).
If a supervisor is not employed in the same agency as the supervisee, a letter from the agency director granting approval for obtaining supervision outside of the agency must accompany the submitted plan.
The supervisee’s official position description on agency letterhead must accompany the supervision plan. The position description will be used to assist in determination of whether the experience is clinical.
The board staff will review of Supervision Plan for approval. If approved by staff the TSBSWE will send a letter notifying the LMSW of approval of the plan. The LMSW may proceed with accruing hours of supervision and months of experience (see number 3 below).
If documentation submitted is not adequate, staff may call or write the LMSW to explain what additional information is needed. If the plan is not approved, the board will send a letter notifying why the plan was not approved. A LMSW may appeal the staff decision not to approve a plan to the appropriate board committee.
Complete minimum of 24 months and 100 hours of supervision of full-time (30 hours or more a week) position, in accordance with plan.
If the LMSW changes supervisors, the LMSW should submit a Clinical Supervision Verification Form documenting the supervision completed by the supervisor of the approved plan. The LMSW should also submit a new plan for approval, updated with the new approved supervisor (see §781.302 of the board rules).
If the LMSW changes jobs or their job duties change, the LMSWS should submit a Clinical Supervision Verification Form documenting the supervision completed under the approved plan. The LMSW should also submit a new plan for approval, updated with the new information regarding their clinical duties and supervisor (see §781.302 of the board rules).
New plans submitted are subject to approval and notice of deficiencies or rejection as described in number 2 above.
Submit application for upgrade of licensure with appropriate fee and remaining documentation.
Submit a Clinical Supervision Verification Form documenting the supervision completed by the supervisor of the approved plan (see §781.302 of the board rules) for approval, along with a current social work employment history form.
In order to be approved, the form must verify that hours of experience were accrued and supervision was provided in accordance with the approved plan. The LMSW must have completed a minimum of 24 months full-time (30 hours or more a week) supervised clinical social work experience and received at least 100 hours of supervision as defined in §781.102 of the board rules.
If the Clinical Supervision Verification is approved, the board will notify both the applicant and the Association of Social Work Boards (ASWB) in writing that applicant has been approved to sit for the national clinical examination. If the Clinical Supervision Verification is not approved by staff, the social worker may appeal the staff decision to the appropriate board committee.
The applicant who has been approved for the clinical examination may submit an application for examination to ASWB and pay the examination fee. (The process used by ASWB may change from time to time. Applicants may contact ASWB for more information regarding the examination process).
If the LMSW fails to submit a supervisory plan within 30 days of initiating supervision, then the LMSW will not receive credit for supervised experience hours.
Complete Examination. Score report is issued at testing center.
The board will receive examination score from ASWB within 2 weeks of the date of examination.
Upon receipt of the score, the board will enter examination information into database and print and mail new license with in 14 days.
NOTE: A LMSW is not licensed as a LCSW by virtue of having received a passing score at the test center. A person is not licensed as a LCSW until a license has been issued by the board.
Must wait 90-days to apply to retake the exam.
Contact board office near the end of the 90-day waiting period for process on retaking the examination. You must petition the board in writing to retake the examination.
You may take the exam up to three (3) times. If you fail the exam on the 3rd attempt you must wait one year and then reapply for licensure or the upgrade of a license in accordance with §781.310 of the board rules.
There are no provisions for temporary licensure (§781.309) or the alternative method of competency (§781.311) at the clinical level of licensure.
Display the new license in place of employment or practice.
Update all materials utilizing professional uses of your name with new credentials including business cards, letterhead, computer databases and computerized signatures.
Start the interiew process NOW!


THIS MATTER is before the Court on Petitioner Thomas W. Cunningham's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), (Doc. 1), filed January 4, 2018, and Respondent Hector Balderas' Answer to Thomas Wayne Cunningham's Pro Se Petition for Writ of Habeas Corpus (28 U.S.C. § 2254) [Doc. 1] (the “Answer”), (Doc. 11), filed March 21, 2018. Also before the Court is Petitioner's Motion for Addendum to the Case, (Doc. 7), filed January 9, 2018. United States District Judge Kenneth J. Gonzales referred this case to Chief Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 5). Having considered the parties' filings and the relevant law, the Court RECOMMENDS that Petitioner's Motion for Addendum to the Case, (Doc. 7), be GRANTED, the Petition, (Doc. 1), be DENIED, and this case be DISMISSED WITH PREJUDICE.
This case arises from Mr. Cunningham's April 4, 2012 arrest by Officer Chris Luttrell of the Albuquerque Police Department. (Doc. 11 at 2). Officer Luttrell states he saw Mr. Cunningham in the front passenger seat of a parked pickup truck in an unlighted loading area of a shopping center, that Valentino Romero was in the driver's seat, and an unidentified third party stood between Mr. Cunningham and the open passenger-side door. Id. Officer Luttrell states Mr. Cunningham engaged in a hand-to-hand transaction with the person standing by the passenger-side door, and that this individual quickly walked away from the scene when Officer Luttrell approached the truck. Id. at 3. Officer Luttrell further states he observed Mr. Cunningham attempt to hide what turned out to be a bag containing illegal narcotics and contraband. Id.
On May 29, 2013, the trial court held a hearing on Mr. Cunningham's motion to suppress the evidence that led to his arrest, at which Officer Luttrell was questioned by Mr. Cunningham's counsel and the court, and was cross-examined by counsel for the prosecution. (Doc. 1-2 at 1-66). At the hearing, Mr. Cunningham's counsel stated he had received “in the mail, an affidavit purportedly from Mr. Romero” which included a description of the encounter with Officer Luttrell that differs from Officer Luttrell's testimony, and that the affidavit stated that “[t]he police lied about the events of that night.” Id. at 7. Defense counsel further stated that “[w]hen we did a witness interview of Mr. Romero, he essentially disavowed that affidavit, ” and that the affidavit would not be submitted into evidence.” Id. at 7.
At the end of the hearing, the trial judge found Officer Luttrell had reasonable suspicion to investigate what he believed was possible criminal behavior, and that this investigation developed into probable cause to arrest Mr. Cunningham. Id. at 56. The Court and the parties then discussed the upcoming trial. Mr. Cunningham's counsel informed the court that Mr. Cunningham had remembered the presence of a second officer on the scene and that Mr. Cunningham wanted to put this other officer on the witness list. Id. at 61. Counsel for the prosecution stated: “We have no information of [a second officer], so there's no way we could provide such an officer [as a witness], because we don't have any documents.” Id. at 62. The court reminded the parties they had until ten days before the trial to disclose their witnesses. (Doc. 1-2 at 63).
On June 11, 2013, after a jury trial, Mr. Cunningham was convicted for possession of cocaine, heroin, drug paraphernalia, and marijuana. (Doc. 11-1). He was sentenced as a habitual offender to a total term of imprisonment of 8 years and 14 days, with 2 years and 14 days suspended. Id. at 5. Mr. Cunningham began serving a 5-year term of supervised probation on November 24, 2015. Id. at 8-10.
On December 16, 2013, Mr. Cunningham appealed his conviction, arguing: (1) the trial court erred in denying his motion to suppress the contraband seized from the truck; and (2) the evidence was insufficient to support his convictions. Id. at 42-61. The New Mexico Court of Appeals proposed summary affirmance of Mr. Cunningham's convictions, id. at 62-74, after which Mr. Cunningham amended his appeal to add two claims: (1) the trial court denied his right to due process by limiting the defense's questioning of Officer Luttrell for impeachment purposes; and (2) defense counsel was ineffective for failing to call Mr. Romero as a witness, id. at 75-104.
In a Memorandum Opinion issued March 15, 2016, the New Mexico Court of Appeals affirmed Mr. Cunningham's conviction. (Doc. 11-2 at 108-26). It held that Officer Luttrell had reasonable suspicion to detain Mr. Cunningham because: (1) the truck was parked in an unlighted area at 10:00 p.m., away from businesses that would be open at that hour; (2) Officer Luttrell observed a hand-to-hand transaction between Mr. Cunningham and an individual who quickly walked away from the scene as Officer Luttrell approached; and (3) Officer Luttrell observed Mr. Cunningham's attempt to hide what turned out to be a bag containing contraband. Id. at 108-122. The New Mexico Court of Appeals further held Mr. Cunningham failed to make a prima facie showing of ineffective assistance of counsel, and did not address the due process claim. Id. at 123-26. Mr. Cunningham filed a petition for a writ of certiorari, (Doc. 11-3 at 1-17), which was denied by the New Mexico Supreme Court on May 9, 2016, id. at 18-19.
On August 1, 2016, Mr. Cunningham filed a state petition for a writ of habeas corpus, asserting: (1) his trial counsel was ineffective for failing to investigate and obtain the CAD report that would have shown the presence of a second officer at the scene; (2) his trial counsel had a conflict of interest because he stated he did not try to obtain the CAD report because he did not believe Mr. Cunningham's account as to the second officer's presence; (3) his convictions were obtained on Officer Luttrell's perjured testimony; (4) the investigatory detention was an illegal search and seizure; (5) he was denied a meaningful cross-examination of Officer Luttrell; (6) the prosecutor suppressed the second officer's identity; and (7) the transcript of the suppression hearing was altered to remove testimony proving Officer Luttrell testified falsely. Id. at 21-123, (Docs. 11-4, 11-5). The state district court summarily dismissed the habeas petition, stating that Mr. Cunningham's counsel's failure to retrieve the CAD report did not rise to the level of ineffective assistance of counsel. (Doc. 11-6 at 4-7).
Mr. Cunningham then filed a petition for a writ of certiorari with the New Mexico Supreme Court on December 7, 2016. Id. at 8-35. After ordering the State to file a response addressing Mr. Cunningham's ineffective assistance of counsel claim, id. at 36, the New Mexico Supreme Court summarily denied Mr. Cunningham's petition for a writ of certiorari, id. at 56. Petitioner subsequently filed the instant Petition.
In his Petition, Mr. Cunningham raises four grounds for relief: (1) he received ineffective assistance of counsel; (2) he was convicted on the basis of Officer Luttrell's perjured testimony; (3) he was wrongfully arrested; and (4) he was denied due process. (Doc. 1 at 5-10). Respondent does not dispute that Mr. Cunningham has exhausted available state court remedies as to all four of these claims, and states that the claims may be evaluated on their merits. (Doc. 11 at 5-7). However, Respondent contends Mr. Cunningham is not entitled to relief on his claims. Id. at 11-25.
A. Governing Law and Standards of Review “A pro se litigant's pleadings are to be construed liberally.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Despite liberal construction of a pro se litigant's pleadings, however, courts cannot “assume the role of advocate” for him. Id. Courts “are not required to fashion [a pro se party's] arguments for him where his allegations are merely conclusory . . . and without supporting fact[s].” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
Under 28 U.S.C. § 2254, a person in state custody may petition a federal court for relief on the ground that his detention violates the United States' Constitution or laws. § 2254(a). A petition under § 2254 may not be granted unless the state court judgment: (1) resulted in a decision contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented. §§ 2254(d)(1)-(2). Federal courts must presume factual findings are correct, and a petitioner must present clear and convincing evidence to rebut that presumption. § 2254(e)(1).
A state court decision is “contrary to” clearly established law if it: (1) “applies a rule that contradicts the governing law set forth” in Supreme Court cases; or (2) if it “confronts a set of facts that are materially indistinguishable” from a Supreme Court decision and “nevertheless arrives at a result different from” the Supreme Court decision. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Similarly, a state court decision constitutes an “unreasonable application” of federal law when a state “unreasonably applies” Supreme Court precedent “to the facts of a prisoner's case.” Id. at 409. The state court decision must be more than incorrect or erroneous. Renico v. Lett, 559 U.S. 766, 773 (2010). “Rather, the application must be ‘objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409). This imposes a “highly deferential standard of review, ” and state court decisions must be given the benefit of the doubt. Id.
The Court must be “doubly deferential” to a state court's decision when a petitioner claims ineffective assistance of counsel and a state court has decided the claim against the petitioner on the merits. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The Court must defer to the state court's determination that counsel's performance was not deficient and to counsel's decisions on how to represent the client.
See Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009). In applying these standards, the question before the Court is whether a state court's decision was unreasonable, not simply incorrect. Knowles, 556 U.S. at 123.


text:
Argued Dec. 14, 15, 1932.
Messrs. John H. Tucker, Jr., of Shreveport, La., Henry P. Dart and Henry P. Dart, Jr., both of New Orleans, La., and Fred R. Angevine, of New York City, for petitioner.
Mr. G. A. Youngquist, Asst. Atty. Gen., for respondent.
Petitioner brought suit in the District Court for Western Louisiana to recover taxes alleged to have been illegally exacted for 1921 and 1922 upon income derived from oil properties by petitioner as a member of two partnerships, known, respectively, as the Smitherman and Baird partnerships. Both partnerships, after 1913, acquired oil and gas leases of unproved Louisiana lands and engaged in drilling operations on them which resulted in discovery of oil on March 30, 1921, in the case of the Smitherman leases and on August 23, 1919, in the case of the Baird leases.
In April, 1921, the Smitherman partnership executed a writing by which it conferred on the Ohio Oil Company the right to take over a part of the leased property on which the producing well was located, subject to the obligations of the covenants of the leases, in consideration of a present payment of a cash bonus, a future payment to be made 'out of one-half of the first oil produced and saved' to the extent of $1,000,000, and an additional 'excess royalty' of one-eighth of all the oil produced and saved. The instrument in terms stated that the partnership 'does sell, assign, set over, transfer and deliver * * * unto the Ohio Oil Company' the described leased premises. The Baird partnership in November, 1921, gave a similar document to the Gulf Refining Company containing some additional features which, in the view we take are immaterial. It too stipulated for future payment of royalties in kind from the oil produced and saved.
Petitioner's tax returns for the years 1921 and 1922 reported his distributive share of the income from the Smitherman partnership, derived from the bonus payment and oil received under its contract with the Ohio Oil Company, and also his share in the income from the Baird partnership from oil received under its contract with the Gulf Refining Company. In the returns for both years, petitioner, relying upon the provisions of section 214(a)(10) of the Revenue Act of 1921 (42 Stat. 239), regulating depletion allowances in the case of oil and gas wells, made a deduction for depletion based on the value of the oil in place in the two properties on the respective dates of discovery.
The Commissioner refused to allow these deductions, on the theory that both transactions were sales of the leases by the partnerships, and that the only allowable deductions, in calculating taxable gain, are those based upon the cost of the respective properties to petitioner, in each case materially less than their value at the date of the discovery of oil. This resulted in the assessment and payment of an increased tax which is the subject of the present suit. Judgment of the District Court, 49 F.(2d) 316, denying petitioner the right to make the deductions claimed, was affirmed by the Court of Appeals for the Fifth Circuit, 57 F.(2d) 32. This court granted certiorari, 287 U.S. 586, 53 S.Ct. 79, 77 L.Ed. —-.
Both courts below, following earlier decisions of the Court of Appeals with respect to the two instruments involved here, held that they were assignments or sales of the leases for the stipulated consideration of bonus paid and royalties to be received. See Waller v. Commissioner (C.C.A.) 40 F.(2d) 892; Herold v. Commissioner (C.C.A.) 42 F.(2d) 942. The government rests its case on this conclusion. It concedes that, if any reversionary interest, according to the common law, however small, has been retained in the leased land by the two partnerships, the petitioner is entitled to the depletion allowances claimed, but insists that no such interest was reserved by the instruments in question. Petitioner contends that by the Louisiana law any transfer of an interest in land, yielding to the transferor, as consideration, the fruits of the land as they may be produced, such as the royalty oil in the present case, must be regarded as a lease. See Roberson v. Pioneer Gas Company, 173 La. 313, 137 So. 46. From this he concludes that the two instruments were subleases, and invokes the rule recently affirmed in Murphy Oil Company v. Burnet, 287 U.S. 299, 53 S.Ct. 161, 77 L.Ed. 318, decided December 5, 1932, that the lessor of an oil and gas well is entitled to a depletion allowance upon bonus and royalties received from the lessee, under section 234(a)(9) of the Revenue Act of 1918 (40 Stat. 1077). Section 214(a)(10) of the Revenue Act of 1921, which is applicable here, contains the same provisions.
It has been elaborately argued at the bar and in the briefs whether under Louisiana law the two instruments are assignments or subleases. We do not think the distinction material. Nothing in section 214(a)(10) indicates that its application is to be controlled or varied by any particular characterization by local law of the interests to which it is to be applied. See Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199, decided November 7, 1932. We look to the statute itself and to the decisions construing it to ascertain to what interests it is to be applied, and then to the particular interests secured to the two partnerships by the instruments in question to ascertain whether they come within the statutory provision. The formal attributes of those instruments or the descriptive terminology which may be applied to them in the local law are both irrelevant.
Section 214(a)(10) of the Revenue Act of 1921, so far as now material, is printed in the margin.1 It will be observed that the statute directs that reasonable allowance for depletion be made as a deduction in computing net taxable income, 'in the case of * * * oil and gas wells, * * * according to the peculiar conditions in each case.' The allowance to the taxpayer is not restricted by the words of the statute to cases of any particular class or to any special form of legal interest in the oil well. It is true that under article 215 of Treasury Regulations 62 the lessor of an oil or gas well is entitled to a depletion allowance upon the bonus and royalties received from the lessee. See Murphy Oil Company v. Burnet, supra. But there is nothing in the statute or regulations which confines depletion allowances to those who are technically lessors. The concluding sentence of the section that 'In the case of leases the deductions allowed by this paragraph shall be equitably apportioned between the lessor and the lessee' presupposes that the deductions may be allowed in other cases. The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.
That the allowance for depletion is not made dependent upon the particular legal form of the taxpayer's interest in the property to be depleted was recognized by this Court in Lynch v. Alworth-Stephens Co., 267 U.S. 364, 45 S.Ct. 274, 69 L.Ed. 660. There a depletion allowance under section 12(a) of the 1916 act, 39 Stat. 767, was claimed by a lessee of a mining lease, in the computation of tax on income from the proceeds of ore mined. The statute made no specific reference to lessees, and the government argued that, as the lessee acquired no ownership of the ore until the severance from the soil (see United States v. Biwabik Mining Co., 247 U.S. 116, 123, 38 S.Ct. 462, 62 L.Ed. 1017), the lease gave him no depletable interest in the ore in place. But this Court held that, regardless of the technical ownership of the ore before severance, the taxpayer, by his lease, had acquired legal control of a valuable economic interest in the ore capable of realization as gross income by the exercise of his mining rights under the lease. Depletion was therefore allowed.
Similarly, the lessor's right to a depletion allowance does not depend upon his retention of ownership or any other particular form of legal interest in the mineral content of the land. It is enough if by virtue of the leasing transaction he has retained a right to share in the oil produced. If so, he has an economic interest in the oil, in place, which is depleted by production. Thus we have recently held that the lessor is entitled to a depletion allowance on bonus and royalties, although by the local law ownership of the minerals in place passed from the lessor upon the execution of the lease. See Burnet v. Harmel, supra; Bankers' Pocahontas Coal Company v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325, decided December 5, 1932.
In the present case the two partnerships acquired by the leases to them, complete legal control of the oil in place. Even though legal ownership of it, in a technical sense, remained in their lessor, they, as lessees, nevertheless acquired an economic interest in it which represented their capital investment and was subject to depletion under the statute. Lynch v. Halworth-Stephens Co., supra. When the two lessees transferred their operating rights to the two oil companies, whether they became technical sublessors or not, they retained, by their stipulations for royalties, an economic interest in the oil, in place, identical with that of a lessor. Burnet v. Harmel; Bankers' Pocahontas Coal Company v. Burnet, supra. Thus throughout their changing relationships with respect to the properties, the oil in the ground was a reservoir of capital investment of the several parties, all of whom, the original lessors, the two partnerships, and their transferees, were entitled to share in the oil produced. Production and sale of the oil would result in its depletion and also in a return of capital investment to the parties according to their respective interests. The loss or destruction of the oil at any time from the date of the leases until complete extraction would have resulted in loss to the partnerships. Such an interest is, we think, included within the meaning and purpose of the statute permitting deduction in the case of oil and gas wells of a reasonable allowance for depletion according to the peculiar conditions in each case.
The statute makes effective the legislative policy, favoring the discoverer of oil, by valuing his capital investment for purposes of depletion at the date of the discovery rather than at its original cost. The benefit of it accrues to the discoverer if he operates the well as owner or lessee, or if he leases it to another. It would be an anomaly if that policy were to be defeated and all benefit of the depletion allowance withheld because he chose to secure the return of his capital investment by stipulating for a share of the oil produced from the discovered well through operation by another.
The bonus received by the Smitherman partnership was a return pro tanto of the petitioner's capital investment in the oil, in anticipation of its extraction, resulting in a corresponding diminution in the unit depletion allowance upon the royalty oil as produced. Compare Murphy Oil Co. v. Burnet, supra.

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§ 1. The Municipal Council must in the undertaking of building renovation to the owner of the basic regulation. § § 10, 24, 37 and 38 of the Act on urban renewal and the development of cities, set the property value, as the Municipal Council will put into consideration for a possible subsequent calculation of the refund amount, see. § 3. The in 1. point value is determined as the value of the property referred to in trade and repute before the redevelopment with the addition of the value of the improvements, as implemented by the resolution on building renewal.
2) the earliest transfer of property at a higher price than that provided for in § 1, 2. point set value plus an amount equal to the real property prices are assumed the development over the past period of time, so that the new value, above and beyond what can be attributed to the ordinary real property prices are assumed development exceeds the originally fixed value, see. § 1.
(2). Repayment of grants, see. section 2, paragraph 2, must be done in accordance with the principles of the statement in paragraph 1, no. 1 and nr. 2.
(3). In the calculation referred to in paragraph 1, no. 1 and 2, to be attributed to an amount corresponding to the price hike on the property as a result of further improvement work carried out after completion of urban renewal works.
(4). Repayment can only be imposed on the owner, who has received the grant.
(5). Determination of real property prices are assumed development occurs on the basis of statistical information from the Customs Tax on the selling price for the properties of the relevant species and geographic location.
§ 5. In determining the value of ownership and private housing before rebuilding, to be used for calculating the grant, see kondemnerings. section 78 of the Act on urban renewal and the development of cities, the value of the kondemnerede property value or the kondemneredes relative to the value of the property value at the time of the last general assessment or reassessment before kondemneringen is made, less the deposit on exterior maintenance accounts, see. law on temporary regulation of housing conditions. The property value is increased by the value of legitimate improvements carried out on the kondemnerede following the assessment, and shall be increased or reduced by a percentage charge or deduction for the modification of the values that have taken place since the assessment. Percentage allowance or deduction shall be determined by the Municipal Council on the basis of statistical information from the Customs Tax on the selling price for the properties of the relevant species and geographic location.
§ 6. Statement of the value of other homes than those referred to in section 5 shall happen according to the rules laid down in article 78, paragraphs 5-7 of the law on urban renewal and development of cities.
(2). Executive Order No. 726 of 28. June 2004 for refund of grants as well as valuation of the properties to use for calculation of kondemnerings grants in accordance with the Act on urban renewal and the development of cities should be repealed at the same time.


Petitioner Ivan Eberhart was convicted of one count of conspiring to distribute cocaine. On the last day available for post-trial motions, he moved for judgment of acquittal or, in the alternative, for a new trial. That motion raised a single ground for relief—an alleged flaw in a transcript that had been published to the jury. Nearly six months later, petitioner filed a "supplemental memorandum" supporting his motion. Two additional grounds appeared in that filing—admission of potential hearsay testimony into evidence, and the District Court's failure to give a so-called "buyer-seller instruction" to the jury. 388 F. 3d, at 1047–1048. Rather than arguing, however, that the untimeliness of the supplemental memorandum barred the District Court from considering the issues it raised, the Government opposed it on the merits.
The District Court granted the motion for a new trial, citing all three grounds raised by petitioner. The judge concluded that "'none of these concerns standing alone or in pairing would cause me to grant a new trial,'" but that taken together, they "'persuade me that the interests of justice require a new trial.'" Id., at 1048. The judge also predicted that "'a new trial will quite likely lead to another conviction.'" Ibid.
On appeal, the Government pointed to the untimeliness of petitioner's supplemental memorandum, and argued that the District Court had abused its discretion in granting a new trial based on the arguments that the memorandum had raised. The Court of Appeals reversed the grant of a new trial, finding that the District Court had lacked jurisdiction to grant one. The Seventh Circuit observed, "The Supreme Court has held that Rule 45(b)'s prohibition on extensions of time is 'mandatory and jurisdictional.'" Id., at 1049 (quoting United States v. Robinson, 361 U. S. 220, 229 (1960), and citing United States v. Smith, 331 U. S. 469, 474, n. 2 (1947)). Based on Robinson and Smith, the Seventh Circuit explained, "'[w]e have previously emphasized that [Rule 33's] 7-day period is jurisdictional, and that the court is without jurisdiction to consider even an amendment to a timely new trial motion if it is filed outside the seven day period, absent a timely extension by the court or new evidence.'" 388 F. 3d, at 1049 (quoting United States v. Washington, 184 F. 3d 653, 659 (CA7 1999)).
In Kontrick, we determined that defenses made available by the time limitations of Federal Rules of Bankruptcy Procedure 4004 and 9006 may be forfeited. 540 U. S., at 458–460. They are not "jurisdiction[al]," but are instead "claim-processing rules," that may be "unalterable on a party's application" but "can nonetheless be forfeited if the party asserting the rule waits too long to raise the point." Id., at 456. In Kontrick, the debtor responded on the merits to a creditor's untimely objection to his discharge. He did not raise the untimeliness issue, and the court resolved the merits in favor of the creditor. On motion for reconsideration and on appeal, the debtor raised the argument that Rules 4004 and 9006 "have the same import as provisions governing subject-matter jurisdiction." Id., at 455. We rejected this assertion and found that the debtor had forfeited the timeliness argument.
In Smith, the District Judge rejected a Rule 33 motion for new trial, and the conviction was affirmed on appeal. 331 U. S., at 470. After the defendant was taken into custody, the District Judge changed his mind. Purporting to act under the authority of Rule 33, he issued an order vacating his earlier judgment and granting a new trial. Id., at 471. Although we observed in a footnote that "[t]he policy of the Rules was not to extend power indefinitely but to confine it within constant time periods," id., at 473–474, n. 2, that observation hardly transforms the Rules into the keys to the kingdom of subject-matter jurisdiction. Rather, as we emphasized in the text, the District Judge could not use Rule 33 to sidestep a pre-existing basic principle of judicial process—that once a final judgment is issued and the court of appeals considers a case, a district court has no power to act on it further. This was a consequence, however, not of the Rule, but of the Rule's failure to alter prior law. Smith does not address the effect of untimely arguments in support of a motion for new trial when, as here, the district court is still considering post-trial motions and the case has not yet been appealed.
Nor does Robinson address that circumstance. Defendants were 11 days late in filing their notices of appeal under (what was then) Rule 37. The Government responded not by contesting the merits of the appeal, but by moving to dismiss on the basis of untimeliness. 361 U. S., at 221. The Court of Appeals determined that if the District Court found that the untimely notices of appeal sprang from "excusable neglect," it could allow the appeals. On remand, the District Court so found. Id., at 222. We held that the Court of Appeals was wrong in having failed to dismiss under Rule 45(b). Id., at 229–230. Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules of Criminal Procedure when they are properly invoked. This does not mean that limits like those in Rule 33 are not forfeitable when they are not properly invoked. Despite its narrow and unremarkable holding, Robinson has created some confusion because of its observation that "courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional." Id., at 229 (emphasis added). Indeed, we used the phrase "mandatory and jurisdictional" four times in the opinion. And subsequent opinions have repeated this phrase, attributing it directly or indirectly to Robinson. See, e.g., Hohn v. United States, 524 U. S. 236, 247 (1998); Budinich v. Becton Dickinson & Co., 486 U. S. 196, 203 (1988); Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 61 (1982) (per curiam); Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 264, 271–272 (1978). But see Houston v. Lack, 487 U. S. 266, 269 (1988) (reversing an order dismissing an appeal as jurisdictionally out of time when " "[n]either the District Court nor respondent suggested that the notice of appeal might be untimely"); Thompson v. INS, 375 U. S. 384, 386 (1964) (per curiam) (permitting appeal, when petitioner conceded that post-trial motions were served late, in part because petitioner "relied on the Government's failure to raise a claim of untimeliness when the motions were filed").
As we recognized in Kontrick, courts "have more than occasionally used the term 'jurisdictional' to describe emphatic time prescriptions in rules of court." 540 U. S., at 454. See also ibid. (citing Robinson as an example of when we have been "less than meticulous" in our use of the word "jurisdictional"). The resulting imprecision has obscured the central point of the Robinson case—that when the Government objected to a filing untimely under Rule 37, the court's duty to dismiss the appeal was mandatory. The net effect of Robinson, viewed through the clarifying lens of Kontrick, is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection, and to admonish defendants that timeliness is of the essence, since the Government is unlikely to miss timeliness defects very often.
Our more recent cases have done much to clarify this point. For instance, in Carlisle v. United States, 517 U. S. 416 (1996), we held that a court may not grant a postverdict motion for a judgment of acquittal that is untimely under Federal Rule of Criminal Procedure 29(c) when the prosecutor objects. As we pointedly noted in Kontrick, our holding in Carlisle did not "characterize [Rule 29] as 'jurisdictional.'" 540 U. S., at 454–455. See also Scarborough v. Principi, 541 U. S. 401, 413–414 (2004) (relying on Kontrick to hold that time limitations on applications for attorney's fees under the Equal Access to Justice Act, 28 U. S. C. §2412(d)(1), did not implicate subject-matter jurisdiction).
After Kontrick, it is difficult to escape the conclusion that Rule 33 motions are similarly nonjurisdictional. By its terms, Rule 45(b)(2) has precisely the same effect on extensions of time under Rule 29 as it does under Rule 33, and as we noted in Kontrick, Federal Rule of Criminal Procedure 45(b) and Bankruptcy Rule 9006(b) are both "modeled on Federal Rule of Civil Procedure 6(b)." 540 U. S., at 456, n. 10. Rule 33, like Rule 29 and Bankruptcy Rule 4004, is a claim-processing rule—one that is admittedly inflexible because of Rule 45(b)'s insistent demand for a definite end to proceedings. These claim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them. Here, where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense. The Court of Appeals should therefore have proceeded to the merits.


Your disability benefits have been cut off. Now what can you do?
File a “Request for Reconsideration” appeal within 10 days to challenge the decision that you are no longer disabled. If you file this appeal within the 10-day deadline, your Disability benefits will continue until the Reconsideration decision.
If you miss the 10-day deadline, still appeal within 60 days to challenge the decision that you are no longer disabled. However, your Disability benefits will not continue while you wait for a Reconsideration decision and will only be reinstated if you win.
Make Social Security prove there has been “medical improvement” in the condition that led you to being declared disabled in the first place. To rightfully suspend your benefits, Social Security must show there has been sufficient improvement in your medical condition since the date of your prior favorable decision that now allows you to work.
Exceptions to #3 are exhausting the Trial Work Period (TWP) or failing to attend a Consultative Exam (CE) with a Social Security doctor. Social Security is not required to prove medical improvement if you have exhausted the TWP or if you missed a CE appointment.
If you get a Reconsideration denial, file a “Request for Hearing” appeal within 10 days to challenge the decision that you are no longer disabled. If you file this appeal within the 10-day deadline, your Disability benefits will continue until the Hearing decision provided that the benefits continued after the original Cessation notice. Even if you miss the 10-day deadline, still appeal within 60 days to challenge the decision. However, your benefits will not continue while you wait for a Hearing decision and will only be reinstated if you win. If you fail to appeal within 60 days or if you lose the Hearing, all the benefits you were paid after the original Cessation notice will be an “overpayment” you owe back to Social Security.
In summary, all is not lost if you receive a Cessation notice. However, you must act quickly.
Why can’t I Sue for Pain and Suffering for a Virginia Work Injury?
Why Can’t I do the Virginia Work Comp Hearing Myself?
Based on my 35+ years of practice, these are the top reasons why claimants are denied for Disability at the initial level.
Failure to pay into Social Security – If you have been a housewife or have been self-employed and not paid Social Security taxes, for example, then you may not be eligible for Title II Social Security Disability Insurance (SSDI). If you have worked on and off, have been paid under the table, or it has been over 5 years since you last worked, then you may not have enough work quarters to be eligible for SSDI. Read an example scenario.
Still working – Even if you are only working part-time or you are having difficulty working, the fact that you are still working is a strong indicator that you are not disabled according to Social Security. If your countable income is more than a certain amount called “Substantial Gainful Activity” (SGA), you are not eligible for Disability benefits. SGA for 2016 is $1,130 per month.
Too young – Social Security considers everyone under age 50 to be “younger individuals.” It is not enough for “younger individuals” to prove they cannot perform their past relevant work. “Younger individuals” must prove with written doctor support that they cannot sustain gainful employment at ANY type of job as normally performed in the national economy, even low stress light duty work.
Temporary disability – Your disability must last (or be expected to last) at least 12 straight months. For example, if you had an operation or a stroke and you are unable to work but you recover within a year, you do not have a valid Disability claim.
Unemployment compensation – In order to receive unemployment compensation, you must certify you are “able to work” and show you are looking for work. Most Social Security judges consider unemployment compensation to be inconsistent with a disability claim.
Non-severe impairment – You must have a significant medical problem. Age is not enough, and inability to find work is not enough. If you do not have a “severe” impairment, Social Security will claim you can “adjust to other work” and your claim will fail. Generally, you must have an impairment that requires doctor’s care and adversely impacts your daily activities.
If your disability claim has been denied, contact an expert Social Security Disability attorney immediately because there is a strict 60-day deadline to appeal.
For most accidents, the injured worker has 2 years from the date of accident to file a claim with the Virginia Workers’ Compensation Commission. Virginia Code § 65.2-601.
The 2-year statute of limitations for filing a claim for an accident can be excused if the employer knows of the accident but fails to file a report of such accident with the Virginia Workers’ Compensation Commission and the claimant can show s/he was prejudiced by the failure to file the report. Virginia Code § 65.2-602.
If the claimant is claiming an occupational disease, the claimant must give written notice of such claim to the employer within 60 days of the date the occupational disease is first communicated to the claimant by a doctor. Virginia Code § 65.2-404.
For an occupational disease, the injured worker has 2 years from the date of diagnosis or 5 years from the date of last injurious exposure in employment, whichever comes first, to file a claim with the Virginia Workers’ Compensation Commission. Virginia Code § 65.2-406.
If compensation is payable under a Virginia Workers’ Compensation Award, the claimant can request a 20% late penalty if the payment is not made within 2 weeks after it becomes due. Virginia Code § 65.2-524.
If the claimant’s Award is terminated, the claimant has 2 years from the date of last payment to file a Change of Condition Claim and ask for more compensation for lost wages.
If the claimant’s Award is terminated, the claimant has 3 years from the date of last payment to file for Permanent Partial Disability for a rated loss or loss of use of a body part. Virginia Code § 65.2-708.
If the claimant loses a Virginia Workers’ Compensation Commission hearing, the claimant has 30 days to file for a review (appeal) to the Full Commission.
For most compensation payments for lost wages, there is a 500-week maximum for benefits. Virginia Code § 65.2-518.
If the claimant refuses light duty or selective employment that is within his.her residual work capacity, then the claimant has 6 months to cure such refusal, or claims for future lost wages will be barred. Virginia Code § 65.2-510.
An employee has a specific accident at work that results in injury.
The injured worker immediately notifies the employer of the accident.
The employer or it’s work comp insurer refers the injured worker to an authorized healthcare provider for initial treatment (usually Patient First, Urgent Care, Occupational Medicine, etc. or the ER).
An accident report is completed with the employer, and the employer sends it to their work comp insurer.
The work comp insurance claims adjuster opens a claim and calls the injured worker for a recorded statement of how the accident happened.
The adjuster files the First Report of Injury (FROI) with the Virginia Workers’ Compensation (VWC) Commission.
The adjuster may provide a panel of 3 doctors for the injured worker to chose 1 as his/her authorized treating physician, and the medical providers send the medical records and bills to the adjuster for payment.
If an authorized medical provider takes the injured worker completely out-of-work over 7 days due to the work injury by a written note, the adjuster will ask the employer for a wage chart and begin compensation for two-thirds of the pre-injury average weekly wage.
The adjuster may send the injured worker an Award Agreement, the injured worker signs and returns it to the adjuster, the adjuster signs and files it with the VWC Commission, and the VWC Commission approves an Award Order for lifetime medical benefits for reasonable, necessary, and authorized treatment of causally related body parts (and compensation if applicable).
If the VWC Commission does not approve an Award Order, then all compensation and medical benefits provided by the insurer are VOLUNTARY; and it is the injured worker’s responsibility to file a Claim for Benefits parts A and B with the VWC Commission within 2 years of the date of accident to protect his/her rights.
It is VERY IMPORTANT for the injured worker to obtain an Award Order as soon as possible. Even if your Virginia workers’ compensation claim has been “accepted” by the insurer, it is still advisable to contact a knowledgeable attorney to learn your rights. If any step in the process goes wrong, your benefits could be denied.
The injured worker is an illegal alien.
If your Virginia workers’ compensation claim is denied, you should contact an experienced lawyer immediately to learn your rights.
The attorney who represented you in Virginia may have a difficult time representing you if you move out-of-state.
Thus, it is best to discuss your situation with your attorney before you actually move out-of-state.
Joe called my office this week. He applied for Social Security Disability Insurance (SSDI). He had three herniated discs in his back and expected to be approved for SSDI right away. But Social Security denied him because he did not have sufficient work quarters. In over 35 years of representing disability claimants, I have had many people call me with the same problem as Joe.
What really was Joe’s problem? Joe had operated a food truck for years. He did good business selling lunches in downtown Richmond, VA. Joe paid sales taxes but never reported a profit on his food truck. He had done this for over 20 years. Since he never paid income taxes, Joe never paid into the Social Security system. To some extent, you get out of Social Security what you pay in.
What was Joe’s mistake? Joe thought he could avoid income taxes by never reporting a profit on his food truck. Joe was correct, but the mistake he made is he also never paid into the Social Security system. As a result, even though Joe is now “disabled,” he is not eligible to receive Social Security Disability Insurance (SSDI).
What about Supplemental Security Income (SSI)? There is another Disability program called Supplemental Security Income (SSI). SSI is like welfare disability for disabled people in low-income households, in which sufficient work quarters are not a requirement. In Joe’s case, his wife’s income disqualified him from SSI.
The moral of the ant and the grasshopper: In Aesop’s Fable, the ant worked all summer building up his food supply. The grasshopper sang and danced all summer long. When winter came, the ant had ample food supply, but the grasshopper went hungry. The lesson is to be like the ant–work hard and pay into the Social Security system while you still can. Don’t make Joe’s mistake and fail to pay into the system while you are working.
Many injured workers contact me and want to sue their employer for an injury at work. They want to collect for pain and suffering and other things one can sue for when one is involved in an automobile accident. So, can a claimant sue his/her employer for an injury at work in Virginia?
In most cases, the simple answer is NO an injured worker cannot sue his/her employer for pain and suffering due to a Virginia work injury. The Virginia Workers’ Compensation Act, like other work comp laws in the U.S., resulted from a “historic bargain” between labor and business. Businesses agreed to provide workers’ compensation insurance for injured employees to cover 2/3 wage loss, medical expenses, recovery for permanent damage, and mileage reimbursement without admitting responsibility for the accident. Labor, on the other hand, gave up the right to sue their employers for negligence and the right to recover for pain and suffering. In some states, an injured employee can still sue his/her employer if the employer is guilty of “gross negligence” in causing the employee’s injury. However, that option is NOT available in Virginia.
If the injury is caused by a THIRD PARTY (NOT by the employer or its employees), then a negligence action could be available in addition to a workers’ compensation claim. For example, if an employee is driving a company truck and is struck by another driver, then the employee could have a claim against his/her employer’s work comp carrier AND a personal injury claim against the other driver’s auto insurance.
The workers’ compensation system does not provide an adequate remedy when great pain and suffering or death results from the work injury. The fairness of work comp statutes is highly controversial, with claimant attorneys arguing the need for more benefits and the defense attorneys arguing that excessive fraud causes unnecessary and inappropriate costs.
When you suffer a Virginia workers’ compensation injury, the insurer will often hire a Nurse Case Manager (NCM) to coordinate your medical care. The NCM may be a direct employee of the insurer or s/he may be employed by an agency used by the insurer. The NCM may attend your work comp medical appointments.
The NCM may be helpful in scheduling and obtaining approval for doctor visits, tests, procedures, and therapy, etc. from the insurer. These appointments usually do not happen until they are pre-authorized by the insurer.
On the other hand, the NCM could be very bad for your case. S/he may try to steer you to doctors who are not claimant-friendly. S/he may try to get the treating doctor to refer you to another physician of her preference. S/he may try to substitute her opinion for the opinion of the treating doctor. S/he may try to tell the doctor which tests and procedures are and are not necessary.
Can you keep the NCM from talking to your doctor? Most doctors will talk to the NCM. The doctor/patient privilege that would normally keep your medical care private does not apply in Virginia workers’ compensation. Under the VWC Act, the insurer is entitled to obtain medical records from the treating provider(s). The Act does not specifically say the doctor must talk to the NCM. As a practical matter, doctors usually talk to the NCM to get his/her proposed plan of care approved and paid for by the insurer.
How can I protect myself from the NCM? You should request that your medical providers only talk to the NCM when you are present. You should attend all discussions the NCM may have with your medical providers. You should make sure your attorney receives copies of all NCM correspondence and reports to the insurer about your case. Most of all, you should have an experienced Virginia workers’ compensation lawyer representing you.
Also, the insurer cannot force the client to undergo a Functional Capacity Exam (FCE) if the client has uncontrolled HBP.
[W]e find that the appropriate test is whether the treatment for the unrelated condition would be necessary if surgery for the compensable condition was not contemplated. In other words, the issue is whether the primary motivation for treatment of the unrelated condition is to allow the claimant to undergo the compensable treatment, or whether it is to treat the unrelated condition. If the unrelated condition would require treatment without reference to the compensable treatment, then there is simply no causal connection between the treatment for the unrelated condition and the compensable injury.
Under this test, it would appear the insurer is not responsible for HBP treatment not caused by the accident. However, this “test” does not answer the question regarding whether the insurer can force the client to pay for expensive HBP treatment in order to undergo an operation or FCE for his/her injury.
The insurance company is going to be represented by a defense attorney.
You may not know WHY the insurer is denying your claim.
You may not know what evidence and/or witnesses the insurer will be using against you.
You may think you case is straightforward, but it may not be.
You may think that if you lose, you can just get an attorney for the appeal.
(The record closes after the hearing, so you cannot submit new evidence on appeal.
Abraham Lincoln once said, “he who represents himself has a fool for an attorney.” Don’t be that “fool.” Contact a highly rated workers’ compensation lawyer immediately.
You have had an injury at work but now the authorized doctor says you can do light duty work, does this mean the end of your compensation?
If you are under a Virginia Workers’ Compensation Temporary Disability (TTD) Award, the compensation payments should continue despite the light duty release as long as the employer cannot provide a light duty job. If you don’t know if you are under an open TTD Award, call the VWC Commission at (804) 367-8615 or 1-877-664-2566.
Once you are released to light duty, your employer may offer you a light duty job. If the job offer is within the authorized doctor’s restrictions, then you must attempt the job.
If the light duty job does not meet the authorized doctor’s restrictions, you don’t have to accept it but you should contact a decorated work comp lawyer before you refuse it.
If you are not under an open TTD Award, then the work comp insurer may not pay you unless you have sufficiently marketed your residual work capacity via light duty job search. Usually, a sufficient light duty job search requires 5 in-person job applications per week or at least 10-15 online applications per week. All applications must be for jobs that you could possibly do under the authorized doctor’s work restrictions. It is important that you keep a detailed record of your job search, including the date of application, the company’s name address and phone number, the person you contacted or website you used, the position, the response, and print out any email confirmations.
Even if you are doing a good job search, the insurer may still refuse to pay you. In that case, you need to file a claim with the Virginia Workers’ Compensation Commission and consult an experienced attorney.
My firm provides guidance in negotiating through the often difficult workers’ compensation rules. Contact my office immediately (804) 335-0268 if you encounter a problem.
Recently, I have had a number of cases in my Virginia workers’ compensation practice that involved video surveillance. The defense has the right to hire a private investigator to follow the injured worker around and video record him or her in public places (ie. outside the home, in the doctor’s office lobby, running errands, etc.).
This tactic is used in hopes of catching the worker doing activities that are inconsistent with his or her alleged impairment and/or violating doctor restrictions. Surveillance typically occurs when an injured worker is out of work on compensation for lost wages and the disability is due to the claimant reporting pain, rather than an obvious, objective medical impairment. If the investigator is successful, the defense can play the video in front of the treating physician, persuading the doctor to think the worker is exaggerating symptoms and/or has recovered from the injury. The doctor may declare the worker is no longer disabled and drop any work restrictions. A problem for the worker’s attorney is that he cannot obtain the video until after it has been provided to a third party, such as the doctor. Also, the VWC Commission has ruled in the past that the worker’s attorney cannot obtain the video prior to the worker’s deposition. Thus, defense counsel can ask the worker questions at the deposition in hopes that his or her answers will conflict with the video evidence.
Then the defense can file an “Employer’s Application for Hearing” with the Commission to cutoff the worker’s benefits. If the Commission does not reject the Application, then compensation will stop on the date of Application and will not resume unless the worker gets compensation reinstated by the deputy commissioner at the hearing. Therefore, if you are an injured worker under an Award for compensation, you should be cautious that the defense could be videotaping your activities.
SEXUAL ASSAULT AT WORK IN VIRGINIA – WORK COMP OR PERSONAL INJURY CLAIM?
It must occur “during the course” of the employment.
It must “arise out of” the employment.
Thus, a sexual assault during work would definitely meet the first prong of the test since it occurred at work. The more difficult problem is whether the assault meets the second prong of the test–did the assault “arise out of” of the work environment?
For instance, if a lady’s boyfriend attacks her at work, that normally would not result in a workers’ compensation case because it failed the second part of the test–it did not “arise out of” the employment. However, if worker operated the midnight shift at a 7-11 and was the victim of a sexual assault by a stranger, the worker could readily argue such employment exposed the worker to higher risk of sexual assault than the American public is normally exposed. Likewise, an employee who had to make payroll deposits could reasonably argue this employment created a greater risk of being assaulted.
On the other hand, what if the worker is sexually assaulted by a fellow employee in the work place? Sometimes the victim does not want to be covered by the Virginia Workers’ Compensation Act. If the injury is horrific, the victim might rather file a personal injury claim for negligent hiring. In a workers’ compensation claim, the remedy is limited to compensation for lost wages and medical expenses. In a personal injury claim, the victim can try to recover for pain and suffering, loss of quality of life, etc. If the sexual assault by the fellow employee takes place in the work place but there is no other link to the work place environment, then the victim will not have a workers’ compensation claim. If the victim thinks she can recover more in a personal injury case, she may not want workers’ compensation coverage. Conversely, the employer might desire workers’ compensation coverage since the victim’s damages are more limited.
As a Virginia workers’ compensation attorney, I often see on-the-job injuries that are originally diagnosed as an arm injury, but later it turns out to really be a neck problem (or there is a neck injury in addition to the arm injury). Virginia case law clearly states an arm injury does NOT include a neck injury, and a neck injury does NOT include an arm injury. Thus, a late discovery of a neck injury can create a problem, especially if the injured worker fails to add the neck injury to the claim within two (2) years of the accident.
If the original claim only contains an Award for an arm injury, then an additional claim for a neck injury will probably be lost if it is not added within the two (2) year statute. The usual rule followed by the Virginia Workers’ Compensation Commission is that an Award for just an “arm injury” does NOT include coverage for a different part of the body, such as a “neck injury” when there is no specific mention of the neck on the Award.
Do you have a complicated arm/neck injury? Consult Gerald Lutkenhaus, an attorney with over 35 years of experience, at (804) 335-0268 to make sure you are covered with both the arm and the neck.
If the Virginia workers’ compensation insurance company ACCEPTS your injury, the adjuster is required to send the injured worker an Award Agreement (also called an Agreement to Pay Benefits form). This form will state: the injured body parts covered for lifetime medical care, compensation rate for two-thirds of lost wages, and the date compensation will begin. After the injured worker signs the Award Agreement, s/he should return it to the adjuster for his/her signature. Then the adjuster should file the Award Agreement with the VWC Commission. Once approved by the Commission, an Award Order will be issued. After the Award Order has been entered for 30 days, the insurer cannot vacate the Award Order.
At a recent Virginia workers’ compensation seminar, a Commissioner explained that a Lifetime Medical Award for a “back strain” will usually cover ALL injuries to the back such as herniated discs, etc. To be safe, the injured worker may request to amend the Award Order to add additional body parts.
Also, the Commissioner pointed out recent case law confirmed that signing an Award Agreement for one body part does not preclude one from filing later to add additional body parts as long as the new claim is filed within two (2) years of the date of accident.
On the other hand, the Commissioner said litigation may preclude the injured worker from adding additional body parts to the Award Order if those claims are not specifically reserved in the litigation. Thus, the Award Agreement does not have the same preclusive effect as does a litigated case.
The rationale is Award Agreements are favored by the Commission as part of its administrative function. Award Agreements are not used as “traps” by insurers to foreclose claimants from their truly meritorious claims.
Should you sign your Award Agreement? Ask Gerald Lutkenhaus, an attorney with over 35 years of experience, at (804) 335-0268.
You are under an open Award approved by the Virginia Workers’ Compensation Commission and receiving compensation for lost wages due to an injury on the job. The insurer decides to hire a vocational placement counselor for you. Is this a good thing?
The insurer may press your doctor to release you to light duty too soon after the work accident. To curb a premature release to work, you should establish a good rapport with your doctor. If your doctor does release you to light duty, the insurer may assign a vocational counselor to your case for job placement. You cannot claim you are “too disabled” to work with the vocational counselor if the doctor has released you to light duty work.
The vocational counselor is an agent of the insurer, and not independent. He or she is hired by the insurer and does not work for you. The vocational counselor is supposed to follow the job placement guidelines set by the Virginia Workers’ Compensation Commission and the rules for his or her state license. He or she usually does an initial vocational assessment to determine your work experience, residual capacity, and transferable skills.
The vocational counselor may try to get your doctor to reduce the work restrictions so that job placement is easier. Therefore, you should make sure there are no private discussions between the vocational counselor and your doctor.
The vocational counselor will try to place you back with your original employer. Sometimes the employer may create a light duty job. The employer has an incentive to take the injured worker back in order to lower its workers’ comp insurance costs.
If the employer cannot accommodate your restrictions, the vocational counselor will attempt to place you in a light duty job elsewhere. If a job offer is within the injured worker’s restrictions, then the injured worker must attempt the job. If the injured worker makes less wages at the light duty job than his pre-injury job, then the insurer may only compensate the injured worker at two-thirds of the difference in wages. The insurer benefits from successful light duty placement because it doesn’t have to pay as much compensation benefits.
The Virginia Workers’ Compensation Act states the insurer is allowed to do vocational placement for a reasonable time (6 months) before having to pay for any retraining or reeducation expenses. However, in my experience, the insurer rarely offers to pay for these expenses.
You can request round trip mileage reimbursement for meetings with the vocational counselor and required job searches. You can ask the adjuster for a mileage reimbursement form. Mileage is reimbursable at $0.555 per mile as of 2015.
Anything you say to the vocational counselor may be repeated to the insurance claim adjuster. Especially beware of talking about settling your case with the vocational counselor.
Failure to cooperate with vocational placement can be a serious offense under Virginia Workers’ Compensation law. You cannot form a pattern of being late to or missing appointments, failing to submit required applications, failing to attend required job fairs, sabotaging job interviews, etc. If noncompliance is proven, it can result in suspension of benefits. The injured worker is well-advised to consult an experienced Workers’ Compensation lawyer when faced with vocational placement by the insurer.
In the end, the vocational counselor is NOT your “friend.” You should be careful and treat him or her as an agent of the insurer. You should consult a top Virginia workers’ compensation attorney if the insurer assigns a vocational counselor to your case for job placement.
If you happen to be a veteran and have obtained a 100% service-connected unemployability rating from the Veterans Administration, then this rating may help you win your Social Security Disability claim. This is so in the area covered by the Fourth Circuit Court of Appeals, which includes Virginia, West Virginia, Maryland, North Carolina, and South Carolina.
In a recent case, the Fourth Circuit held that Veteran Disability Ratings “must be accorded substantial weight in Social Security Disability proceedings.” Bird v. Commissioner of Social Security Admin, 699 F.3d 337, 345 (4th Cir. 2012). So if you have an SSDI claim and a 100% Veteran Rating in any of the above-mentioned states, then be sure to cite the Bird case.
If you are filing for Social Security Disability, it is essential that you seek medical treatment for your ailments. Your testimony about your medical problems is important, but not as important as medical evidence showing you have a severe impairment.
If you lack health insurance or resources, then you have to obtain medical care any way you can. You can apply for Virginia Coordinated Care (VCC), an affordable health care program in the Greater Metro Richmond and Tri-Cities areas through VCU Health System. First you must complete an application with the VCUHS Financial Counseling Department (804) 828-0966. For more information about VCC, visit www.vcuhealth.org/vcc.
Virginia law requires companies that regularly employ OVER TWO employees, part-time or full-time, to carry workers’ compensation insurance. Employees include family members, minors, apprentices, undocumented workers, temporary workers, seasonal workers, part-time workers, and charity workers.
EMPLOYEES BENEFIT from the new law because there will be more assurance that their employers will have coverage.
Many workers try to shrug of sprains, strains, minor cuts, etc. They fail to report these types of accidents to their employer and fail to go to Patient First or the emergency room for these types of injuries.
In Virginia, if you do not report an accident immediately, the employer may claim it did not happen on the job. The Virginia Workers’ Compensation Act requires injured workers to report the accident to the employer within 30 days, but specific employers may have stricter policies. So, the sooner you report the accident, the better.
If you do not get immediate medical treatment for the injury, the doctor may have a hard time linking the injury to the work accident in writing. The Virginia Workers’ Compensation Commission often considers the first emergency room visit and the history of the accident on the first treatment note to be critical evidence concerning whether an injury was caused by an on-the-job accident.
Therefore, your safest bet is to report all injuries immediately, complete a written accident report with the employer, and seek immediate medical attention. You never know, what you thought was an insignificant sprain could really be a more serious fracture, taking you out of work and requiring lots of medical care.
A Virginia Workers’ Compensation claimant may have a right to a Cost of Living Adjustment (COLA). The purpose of COLA is to ensure that the value of certain wage loss benefits is not lessened as a result of inflation.
Each year the Virginia Workers’ Compensation (VWC) Commission sends out a notice notifying claimants who are currently receiving total disability compensation checks from the insurer that they may be eligible for COLA as of October 1st of that year.
And the combined Workers’ Compensation rate and any Social Security benefit cannot exceed 80% of the pre-injury wage.
COLA is not automatic; you must request it correctly. It requires a form to be completed by Social Security and filed with the VWC Commission.
Often people are injured at work and cannot go back to their prior job due to a permanent impairment. Sometimes the insurer refuses to provide vocational retraining. The Virginia Workers’ Compensation Act does specifically provide for retraining as a part of compensation, but one cannot apply for this unless retraining is recommended by a vocational counselor.
An injured worker can apply for FREE services including a retraining evaluation by a vocational counselor at the Department of Aging and Rehabilitative Services (DARS), (804) 662-7000 or www.vadrs.org/.