Thursday, November 26, 2015

Remand for Further Proceedings in Esparza v. Colvin

The little trinkets of gold filter down in unpublished opinions.  Esparza v. Colvin provides insight into the court's thinking and assumptions that will prove dangerous.

Esparza remands for further proceedings because the ALJ did not give good reasons for rejecting the claimant's testimony or the opinions of the treating physician.  Pretty pedestrian stuff, the issues that permeate Social Security cases on a daily basis.  The federal courts decide those issues every day.

But a battle wages on in the Ninth Circuit over the remand versus pay issue.  The agency lawyers and the court have yet to address the elephant in the room -- the statute clearly permits the courts to find that the claimant deserves to be paid without a remand for further proceedings.  42 USC sec. 405(g) and (i).  More on that another day.

Esparza remands for further proceedings as a useful exercise to further develop the record.  Fair enough, the court has discretion under the statute and the cases tip the hat in that direction without giving fair account to the statute.  The next sentence has a bomb waiting to explode:
If she deems it appropriate, the ALJ should reopen the hearing to receive additional evidence.  
Whoa Nellie.  We just spent six pages analyzing how the ALJ abused her discretion in weighing evidence and now the court wants to inject another round of unfettered discretion into the process.  Bad politics.

 The closed remand also violates agency policy.  When the ALJ makes a decision on remand by the court,
The ALJ will generally decide the remanded issues through the date of the new hearing  decision, or in title II cases involving an expired date last insured, through the date of last insured status.
HALLEX I-2-8-18.  How will the ALJ adjudicate through the date of the new decision without taking new evidence of recent education, recent work attempts/activity, and medical treatment.

When the ALJ makes an unfavorable decision, the Appeals Council will get around to the request for review in about 18 months.  The district court will take at least another year to decide the case at that leve.  And the court of appeals, Betty hold the door because that level of review will take two years.  We know that because the Ninth Circuit case number is 13-16522.  The "13" -- that means the appellant filed a notice of appeal in 2013.  The District Court case number is 2:12-cv-00733-SPL.  The "12" -- that means that the claimant for benefits filed a complaint in that court in 2012.

The case is likely five years stale from the date of original ALJ decision.  Discretion to receive additional evidence is misguided if not simply wrong.  It is only palatable if the ALJ will just award benefits to a claimant that probably applied for disability in 2008 (my guess).  Thomas Alvarez Esparza has endured a probable seven-year wait and won't get a decision from SSA until mid- to late-2016.

Wednesday, November 18, 2015

Sheridan v. Colvin ... another unpublished opinion

The Ninth Circuit reversed and remanded by a 2-1 vote on November 17, 2015.  Judges Fletcher and Berzon found that the ALJ did not give clear and convincing reasons to reject the testimony of Sheridan about her migraine headaches.  Judge Bea disagreed.

The majority found pedestrian errors.  Sheridan qualified the statement about activities with statements that she did so when she had a good day or depending on how she felt.  The Ninth Circuit needs to adopt a confrontation requirement so that the ALJ cannot just lurk with a perceived inconsistency and spring it at the time of decision.  The hearings do not last long enough to permit responsible representatives to ask about everything in the record.  The ALJ has a duty to develop the record.  Soto-Olate v. Holder imposes that obligation in the immigration context.

The court faults the ALJ for comparing statements in 2007 to 2008 as different.  The court finds it plausible that different times might have different symptoms and responses.  That is called commonsense.  The ALJ never asked.  See Soto-Olarte.

The court found insubstantial the comparison of onset in 2008 to the cessation of work in 2008.  Again, just a silly statement by an ALJ.  Life is progressive and erosive.  I was fine five years ago does not mean that I am fine today.  The ALJ never asked.  See Soto-Olarte.

The court found that the ALJ engage in conflation for simple migraines with migraines with aura.  If the ALJ does not understand the distinction, the ALJ has a solution, ask.  The ALJ never asked.  See Soto-Olarte.

Now the reason for writing.  The dissent would excuse bad decision-making and leave it to the ALJ to just speculate wildly about perceived inconsistencies without ever asking.  Judge Bea writes that doing laundrm, cooking dinner, cleaing the yard, shopping once or twice a week, caring for two pet dogs, .going to the track to watch her son race, and entertaining visitors would take hours of sitting, standing, and walking.  The italics - those are the judge's.  Sure they do, if Sheridan did them all consecutively or all in the same day.  But the ALJ didn't say that and Judge Bea doesn't report that.  The ALJ just combined them and said, well if you can accumulate hours of activity in a week, then you must be able to work.  The ALJ could have asked about the number of hours of activity in any particular day.  The ALJ never asked.  See Soto-Olarte.

Judge Bea implies in footnote 2 that Sheridan's response to physical therapy changed in June 2008 because she applied for benefits in March and alleged disability in February 2008.  The dust of slander is that Sheridan decided to exaggerate her disability in March and lied in June. The other alternative is that Sheridan got worse after July 2007, couldn't handle work by February, and told her doctors that therapy aggravated the headaches in June.  The ALJ never asked.  See Soto-Olarte.

I have a secret to tell the ALJs and the reviewing Article III judges.  Life is not static.  Disability is not static.  Symptoms vary for any number of reasons.  If you want to find disabled people, go to public places -- the ball game, high school gyms, the store -- go live a little life and get out the sequestered notion that the disabled live a secluded existence getting spoon fed their meals.  Just silly, no naive and puerile.


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We used the  SCO and the aptitudes for dexterity  to show that there really are not a significant number of jobs for a person limited to lig...