Monday, June 6, 2011

Bassett v. Astrue

The Seventh Circuit Court of Appeals decided Bassett v. Astrue on May 27, 2011.  The facts are simple enough.  Bassett alleged that he was disabled in April 2005.  The Administrative Law Judge found that he became disabled in December 2007.  Losing 32 months of benefits translates for most disability recipients to around $30,000.  For someone that has lost the ability to engage in work, that is a healthy chunk of change.

The ALJ found that Bassett could perform "light" work in 2005 but by the end of 2007 he had gotten worse and could perform only "sedentary" work.  Bassett turned 55 in December 2007.  The ALJ picked Bassett's birthday as the date that his ability to perform work changed from light to sedentary.  Because Social Security disability considers age, Bassett wins at 55 whether he could perform light or sedentary other unskilled work, only.  If Bassett were under 55 and limited to sedentary unskilled work, he wins disability benefits.  The United States District Court for the Central District of Illinois decided that the ALJ had made a mistake in picking Bassett's 55th birthday as the date that he could no longer perform light work but was limited to sedentary work.  Bassett won the court case.  Implicit in the decision of the District Court is the decision that no reasonable person would have picked Bassett's birthday as the change date because substantial evidence did not support that date.  In an abrupt about face, the District Court found that the ALJ and the attorneys defending the ALJ decision were substantially justified in making that determination, denying Bassett the right to recover his attorney fees from the government for forcing him to take such a silly ALJ decision to court.

 For most garden variety cases, taking a case like this to the Court of Appeals is a waste of time.  The Equal Access to Justice Act, signed into law by President Reagan, permits people and organizations within financial boundaries to recover attorney fees when the government either brings an action or defends an action without "substantial justification."  It originally paid for attorney fees at $70 per hour plus an optional COLA.  The reimbursement or payment rate is now $125 per hour plus COLA.  The COLA brings the rate up to around $175 per hour.  So let's assume that an attorney is pretty good and worth $300 per hour in Central Illinois.  The cost of taking up an appeal to the Circuit costs either the attorney on a contingency fee basis (Social Security disability cases are required to be contingency fee by law) or the client paying hourly $125 per hour. Taking 60 hours to research, write, and organize such an appeal is cheap.  Taking the case up on appeal will cost $7000 minimum in uncompensated time.  In my experience, most District Court cases for EAJA purposes are worth less than $6000, the case was not worth taking up.  Every once in a while, attorneys need to make an exception and take one of these bad boys out of the pile and appeal.  That is a "loss leader."  I will entertain the doubt that this was an intentional foray into making a point rather than a good business decision for the client or the attorney.

Since I gave the attorney the benefit of the doubt, I will similarly give the ALJ and the attorneys defending the ALJ the benefit of the doubt.  I assume that the ALJ had good reasons for believing that Bassett could perform light work at 52 years of age and therefore not disabled.  I further assume that by the time that Bassett turned 55, the evidence was clear that he was limited to sedentary work and disabled.  Because there is no mention of trauma in the Court's decision, I finally assume that Bassett had a slow progression of his problems that ate away at his ability to exert himself during the 32 months.

Giving the ALJ and the government lawyers every benefit of the doubt, the decision violated agency policy and commonsense.  Social Security Ruling 83-20 tells the ALJ to consult a medical expert to establish the onset date of disability in cases just like this one.  By picking Bassett's birthday, the ALJ violated agency policy.  This is not an articulation problem, it is a violation of the way that SSA interprets the law.  The ALJ doesn't get to interpret the law; the Commissioner gets to interpret the law.  Because the ALJ violated the ruling, the Seventh Circuit encouraged reckless and wanton decision-making by ALJs that ignore agency interpretation of the statute and regulations.

The ALJ also violated commonsense.  Certainly a birthday can be emotionally challenging as time marches on and the warranty card on our bodies falls further out of date.  But to find that this is the date that Bassett fell off the physical ability cliff is silly.  It is like an ALJ picking the date that a doctor took an x-ray for a longstanding chronic condition as the date that disability began.  This is also the kind of case where the ALJ should have engaged in the Solomonic decision to cut the baby in half.  The closer that Bassett got to age 55, the more lenient the ALJ should have looked at the evidence because that is exactly what the statute, regulations, and policy demand the ALJ to do.  Finally, it is just plain a slap in the claimant's face to pick his birthday as the onset date of disability when the deterioration was ongoing.

An ALJ has an obligation to pay every dime of benefits owed.  An ALJ has an obligation to deny every dime of benefits not owed.  When an ALJ asks whether he/she can legally and reasonably pay benefits in cases, people like Bassett get reasonable and trustworthy decisions early.  When an ALJ asks for every angle to deny cases, we get shoddy decisions like the administrative decision in this case.  A dumb decision by the ALJ and a tragic mistake by the Courts not to tell the ALJ and the attorneys that defend those decisions in court that this kind of frivolous decisions will not only get sent back for a re-do but also find the government paying at least part of the attorney fees incurred to correct the egregious error.

1 comment:

  1. Jeff Baird wrote on facebook!/pages/Law-Offices-of-Lawrence-D-Rohlfing/141892542546930:

    The Commissioner was not substantially justified, because SSR 83-20 requires a Medical Expert to set a non-traumatic onset date. This ruling cites numerous regulations it is tethered to, making it controlling. They violated the ruling and so could not be substantially justified.