Thursday, April 16, 2020

Come on Down! Let's Make a Deal!

Let's Make a Deal is the iconic TV game show that debuted in 1963 and continues to this day.  Whether you remember Monty Hall or the new version with Wayne Brady, Let's Make a Deal is the risk of the bird in the hand or pursue the two in the bush only to find that the two in the bush was a box of rocks.  Administrative Law Judges play that game too.

I will use the experience of yesterday.  I could use similar experiences from 30 years ago.  The conversation goes something like this:
ALJ:  I am willing to find your client disabled as of February 1, 2020, the week before the psychiatrist signed the medical source statement.
ATTY:  The PA that authored that MSS completed two more with congruent findings, the first in 2008.
ALJ:  I know that.  If you don't want to take the February 1, 2020, date, then I will send the claimant out for a consultative psych eval -- who knows how long that will take.  Your choice counsel.
ATTY:  Compromising the claim is never my choice.  I will speak to my client.
ALJ:  I will put the call on hold and the monitor will text me when I can pick up.  
The vocational expert hangs up on my insistence.  I explain the game of Let's Make a Deal.  Not only do I not know who the consultative examiner will be, I have no idea what that person will write.  It isn't even a testifying medical expert where I can choose what exhibits to point out.  The consultative examiner is the worst option.  The client, desperate for security and tired of general relief subsistence, takes the ALJ offer rather than wait until December to get a decision whether the same, better, or worse.

We address this issue based on the Code of Conduct for Unites States Judges.  Canon 3A(4), second paragraph, states:
A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.
Is the threat of a consultative examination coercive?  Is the statement that getting the claimant out to a consultative examination when the unending COVID-19 crisis ends coercive?   I submit that the choice of pay now or wait an indeterminate amount of time with an unknown variable is coercive.  We further the analysis with the last clause of the oath of office of every office other than the President and elected or appointed offices:
I will well and faithfully discharge the duties of the office on which I am about to enter.
 The oath of justices and judges is similar:
I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ...
The authority of an ALJ includes taking appropriate measures necessary to enable him or her to discharge the duties of office.

The clear import of the duty of the ALJ is to pay the claims of people that meet the disability standard on the date that the ALJ believes is proven by the record and to deny benefits to people that have not met the burden of proof.  Pay every dime due and deny every dime not due.

In our case from yesterday, the ALJ was either not persuaded of disability as of February 1, 2020, or was using that date as a coercive lever to preclude resolution of the controversy as to the earlier date.  The February 1, 2020, date is an endorsement date, not a medically based onset date.  It is a coerced result.

That is the bottom line.  The ALJ either put someone on the disability rolls that did not belong there by stripping that person of to right to have the earlier period adjudicated, or the ALJ simply coerced the person into giving up rights to protect the government fisc or some other improper purpose.

When an ALJ suggests an amendment to the onset date or the termination of disability, that suggestion or offer should stand without precondition.
I am prepared to find your client disabled as of February 1, 2020.  You may amend your onset date or I will prepare a partially favorable decision, leaving the exceptions and review rights intact.  What would your client like to do?  
That is the type of statement that complies with the oath of office and the judicial canons, used here by analogy.



Lawrence Rohlfing, Come on Down!  Let's Make a Deal!, California Social Security Attorney (April 16, 2020)

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