Tuesday, August 14, 2012

McLeod or Chaudhry -- the Duty to Develop

In the space of 9 months, I note that the Ninth Circuit has widened the gap in the panel determinations on the duty to develop the record on the question of a VA determination of disability. 

McLeod v. Astrue went through three iterations before becoming law of the Circuit.  The final decision sets out the facts of McCleod professing ignorance of whether he had a VA disability determination.  He had a lay representative before SSA, an attorney before the District Court, and Paul Eaglin in the Court of Appeals.  The Cour considered the presence of a lay representative the same as unrepresented in triggering a heightened duty to be "especially diligent" in developing the record.  In the final analysis, the ALJ had to do more to get the VA disability rating because of its probative impact on the SSA disability determination. 

Chaudhry v. Astrue found its way into the books on August 10, 2012.  Jeffrey Baird handled the case on appeal but not before the SSA.  Chaudhry testified that he received a 100% disaiblity rating from the VA.  The attorney reprenting Chaudhry argued to the ALJ that the claimant did in fact have a 100% disaiblity rating.  What the record did contain is a 30% headackes, 30% neck impairment, 20% back impairment, 30% depression, and 20% narcolepsy.  The VA increased the rating for depression to 50% as of 2006, well before the case went to hearing.  Don't add the numbers together, that isn't how the process works.  Suffice it to say that the ALJ added the numbers together using his understanding of the VA methodology instead of the correct methodology that would have added up to 100%.  Chaudhry argued through counsel that the ALJ should have gotten the final rating from the VA himself since the attorney at the hearing was wrong about the presence of the 100% finding in the file.  Two problems -- the final rating did not wind its way into the record and the person making the representation was an attorney. 

And that is the problem.  Everyone in the room knows that the ALJ blew it.  He added the numbers wrong and the rating really is 100%.  The question is whether the Court will place its stamp of approval on a decision that the public knows is palpably and unmistakeably wrong.  When the Court rushes in to affirm the wrong decision because what the ALJ did falls within the range of wrong but reasonable, the Court degrades the public confidence in both the SSA and the Court. 

This is not a situation where reasonable minds could differ.  This case raises the specter of an easily verifiable concrete fact that is either right or wrong.  Discretion permits an ALJ to have his own conclusions, but not his own facts on which no reasonable person could differ.  In Chaudhry, we have a young man that served the United States, after leaving his native Pakistan, honorably in the military only to have an ALJ's silent speed torpedo his entitlement to disability benefits.  Certainly Chaudhry got his VA benefits and if still insured for disability benefits can get SSDI for future periods.  But that isn't the promise that we as a nation made to our young men and women that served in the armed forces especially an immigrant that probably served against the cultural norm from which he emerged.  What we promised was that if he sustained injury during the course of his military service that he would receive a VA benefit for any compensable disability and if the disability precluded substantial gainful activity that he would receive SSDI to permit him some semblance of a standard of living. 

The Court should get out of the business of excusing bad decisions by the SSA under the guise of permitting a wide range of discretion.  The Court should get into the business of narrowing the range of discretion so that claimants like Chaudhry have their cases determined based on the facts of the case instead of the lottery of the identity of the individual ALJ.  Someone pass a note to the Court -- "there are administrative law judges that make mistakes and the Court is the last protection against gross error."  This case involves the grotesque error of harming our servicemen and women. 

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