What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?

 I continue to encourage the submission of rebuttal evidence to the ALJ.  That is best practice.  Here is what the Appeals Council said about the submission of post hearing evidence to the ALJ:

The claimant's representative submitted a brief with additional vocational evidence attached (Exhibits 27E, 28E). Although the brief and vocational evidence were exhibited in the electronic record, they were not discussed in the decision or incorporated in the exhibit list attached to the decision. The Administrative Law Judge is not required to discuss every document in the record, however, material evidence should be exhibited with the decision and the arguments raised by the representative should be considered.

AC Order remanding case to ALJ.  

Here is what a court said in a truly unpublished opinion about vigorous cross-examination of a vocational expert at the hearing:

But “[b]ecause the DOT provides only job descriptions and specifications, and not the actual hard numbers regarding the national and regional availability of the same,” VEs must —as the one here did—“utilize additional secondary sources to ascertain the numbers of positions that exist for each of the DOT codes.” Kennedy v. Colvin, 2014 WL 3695466, at *20 (S.D. Cal. July 22, 2014). Here, the VE relied on a combination of the U.S. Publishing figures—which uses numbers from the Department of Labor’s Bureau of Labor Statistics (“BLS”) and the U.S. Census—and the software program Job Browser Pro. (AR 1956, 1986). Based on those secondary sources, she explained that 50,000 toy assembler, 25,000 assembler of plastic hospital products, and 18,000 inspector/hand packager jobs existed in the national economy. (AR 1949-50).

If the facts just described were the complete state of the record, the ALJ’s reliance on the VE’s testimony to find that Mr. Buchanan was not disabled at step five (AR 44-47) would have been supported by substantial evidence. That is because “in the absence of any contrary evidence, a [VE’s] testimony is one type of job information that is regarded as inherently reliable.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). But if, on the other hand, the VE’s testimony is challenged by contrary evidence—as it was here—the conflict can sometimes trigger the ALJ’s legal duty to further develop the record. See id. at 1047, 1052. In this case, the VE testified that she obtained her numbers from two different resources, U.S. Publishing magazine and the Job Browser Pro software program. Yet when the ALJ asked her to pull up toy assembler on Job Browser Pro to confirm her numbers for that job, the VE was unable to find any job numbers for that occupation on the site. The ALJ responded that “this begs the question” where the VE obtained her numbers from. The VE replied that she “didn’t bring [her] stack of U.S. Publishing” with her. (AR 1972). But Plaintiff’s evidence presented at the hearing indicated that U.S. Publishing would not support the VE’s numbers either. Plaintiff provided conflicting job numbers from the BLS on which U.S. Publishing relies in part for its published figures. (AR 1969, 1986). Under these specific circumstances, the ALJ had a duty to develop the record further.

Contrary to Defendant’s view that the ALJ gave detailed reasons to accept the VE’s testimony, none of those reasons addressed or reconciled the core conflict between the claimant’s job numbers and the VE’s. In fact, the ALJ even incorrectly observed that the VE and claimant were relying on different sources. To the contrary, as noted above, Plaintiff’s numbers came from the BLS, and the VE’s sources—U.S. Publishing and Job Browser Pro—rely in part on the BLS. (AR 1956, 1986-87). And while a VE is generally entitled to rely on her professional judgment, nothing in the record shows that the VE did that here. The VE testified only as to two sources for her numbers, but when faced with conflicting evidence, she said nothing to reconcile the discrepancy between her numbers and claimant’s proffered numbers—whether in her professional judgment or otherwise. Thus, as a result of the unexplained and unreconciled variances in the VE’s testimony in the face of conflicting evidence and the lack of a cogent explanation from the VE on how she arrived at her numbers, the ALJ’s finding that Mr. Buchanan could perform other work available nationally in sufficient numbers was unsupported by substantial evidence. See, e.g., Buck, 869 F.3d at 1052 (reversing and remanded where “the vast discrepancy between the VE’s job numbers and those tendered by [the claimant], presumably from the same source, [was] simply too striking to be ignored”); Daniels v. Colvin, 2014 WL 794498, at *5 (C.D. Cal. Feb. 26, 2014) (remand required where VE conducted “insufficient” analysis of number of jobs allocating job numbers from broad Standard Occupational Classification category to narrowed DOT category without further explanation).

Brown v. Saul, 5:06-cv-00367-SK (C.D. Cal. Jan. 14, 2021).  

___________________________

Suggested Citation:

Lawrence Rohlfing, What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?, California Social Security Attorney (January 28, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/01/what-happens-when-representative.html

ODAR Hasn't Vetted POMS ... So What?

I attended a bench bar meeting at the Los Angeles US Attorney's office for the federal social security practice in the Central District of California last week.   AAJ Gerald Ray spoke on behalf of SSA.  He waxed eloquent about statistics and the need for ALJ decisions to follow policy.   The latter point begs the question -- where do I locate agency policy.

So I asked the question, does the Appeals Council consider POMS to constitute agency policy?   Judge Ray answered the question directly enough;  he said "no."

Never satisfied with the response of the government,  I thought we might unpack that comment in context of Judge Ray's oration and,  what the heck,  the Act, regulations, and the rulings.

SSA receives 2.8 million claims for disability each year.   Of those eventually granted,  SSA grants 75% of those claims in initial or reconsideration stages.  ODAR receives 500,000 claims per year.   ODAR grants less than half of those making 25% of the findings of disability.   So who are the experts at disability adjudication,  the dog or the tail?

So it can't be that the part of the agency that publishes POMS doesn't know what it is talking about.  Clearly it does and directs the state agencies nationwide on how to exclusively adjudicate 2.3 million claims annually without the interference or oversight of ODAR, thank you very much.

The problem arises for claimants that shift during the claim.   They change age categories,  past work ceases to have relevancy,  or the medical evidence changes in a material way.   If the substantive rules effectuating the statute and regulations change too,  then the program is not stable and the failure to have policy apply from top to bottom enhances the lottery effect of a claim for benefits.

SSA does have a caveat on the published e-version of POMS:

Please note that this document is intended for SSA employees. It contains technical terms and instructions that will be unfamiliar to you. If you have difficulty understanding these materials, please click on this link to the Social Security Handbook, which is written in plain language for use by the public.

 Does the Handbook contain agency policy.  Not as far as anyone can tell.  SSA lists POMS as one of its Current Program Rules.  The agency lists the Handbook as one of the Social Security Program Rules but oddly not as current.  More importantly, Judge Ray listed HALLEX as binding but its status is on the same category of POMS as a current program rules set.

The regulations list POMS as other written guidelines that instruct, interpret, clarify, or administrate. 20 CFR sec. 404.1602.   The state agency "will" comply with other written guidelines.  Sec. 404.1603.  SSA can find that the state agency failed to meet the applicable standards if it does not follow POMS.  Sec. 404.1671.

SSR 00-4p states that the agency cannot accept evidence from a vocational expert of specialist that conflicts with agency policy.  SSR 13-2p states that the agency requires all adjudicators at all levels of review to follow agency policy and specifically lists POMS right alongside HALLEX.  And other rulings contain cross-references to POMS -- as in, for more information on this topic, see also POMS.
Okay, ODAR doesn't want the lowly technical people to tell its legally trained staff how to adjudicate claims.  I get that.  But the statute and the issue of disability are medically and vocationally technical, not legally technical.  Using legal techniques and a quasi-judicial format can unwrap the issue of disability, but it remains a mixed medical and vocational issue.

I wrote about the transferable skills analysis back in May.  Judge Ray told me off the podium and privately -- but not confidentially -- that ODAR has vocational experts and no need for POMS dissertation on a transferable skills analysis.  I responded that the agency did not pay VE witnesses enough and that we get what we pay for in life.  He conceded that existence of a problem.  The question in this complex question of medicine and the ability to work is whether we have standards (POMS unless contrary to the regulations or the statute) or just let the ALJ corps, medical experts, and vocational experts do and say whatever their own heuristic and biased view of the world tells them is the right result for this case.

One last point: after 30 years, I have a pretty good handle on this stuff.  I can understand the technical writing in POMS.  I don't need the dumbed down version in the Handbook.  But if POMS is not interpretative of ambiguous regulations and it doesn't matter, then delete it.  The whole thing.  To leave it up and when I cite say - "psych, just kidding.  We don't follow POMS" - well that is just a lie published on the internet and available at the District Office and ODAR says it is worthless.  As I said to Judge Ray during the open session, "we'll see."

Almost 3 million claims deserve better than a lottery.  Public confidence in a system of administrative jurisprudence that touches everyone requires a government tell it the straight substantive and procedural rules.  If ODAR hasn't bothered to consider an issue, then it should follow POMS and vet something else later if ever.

The agency obviously differs and uses POMS only when it likes POMS or the result pushed by POMS.  Inconsistent and intellectually dishonest.

Carrillo Yeras v. Astrue

Carrillo-Yeras v. Astrue is an important win for claimants seeking the disability benefits found in the Social Security Act.  Ms. Carrillo applied for benefits and received a denial by Administrative Law Judge decision.  She excercised her rights under the regulations to both file a request for review to the Appeals Council and to file a new claim for benefits with SSA.  As of this year, the agency has withdrawn that dual track process as an option for claimants denied by an ALJ.  Social Security Ruling 11-1p.  The dual track appeal and refile remains a viable option for claimants once they receive a denial of review by the Appeals Council -- they may proceed to the District Court and file a new claim.  This case will have continued ramifications even under current agency policy. 

The case is simple.  Ms. Carrillo re-filed in 2003 after the ALJ denied her first case.  The agency decided that she met the requirements for disability.  The Appeals Council granted the request for reivew of the first case and reopened the second case, sending them both back to the same ALJ for a new consolidated decision.  It is clear that the only reason that the Appeals Council granted the request for review of the first decision was to provide a vehicle to reopen the second case and allow the ALJ to make one decision applicable to both.  SSA calls this a "substitution of judgment."  Any system based on discretion must reject the substitution of judgment of one fact finder by another.  The regulations permit an out for this basic principle in reopening and revision.  20 C.F.R. §§ 404.988 and 416.1488. 

I assume good faith unless bad faith reaches up and slaps me in the face.  I entertain that the Appeals Council had a legitimate reason for reopening the grant of benefits on the subsequent claim that would permit the substitution of judgment.  The Ninth Circuit decision describes a process that took 23 months from the date that the Appeals Council stated that it would reopen to the date that the ALJ told Ms. Carrillo that he found that she was never entitlted to the benefits paid to her and her family. 

As an exception to the prohibition of a substitution of judgment, the regulations narrowly prescribe the circumstances that SSA can engage in a reopening and revision that constitutes a "take away."  The agency must complete the investigation within 6 months or diligently under the circumstances.  20 C.F.R. §§ 404.991a, 416.1491.  If the agency takes longer than 6 months and has not acted diligently under the circumstances, any change to the reopened decision must find in the claimant's favor, i.e. not a take away. 

This maes sense.  The reopening puts the claimant on the edge of the precipice.  For the next 6 months or during a period of diligent investigation to the point of decision, that person's finances and health insurance hang in the balance.  If the agency does not complete the investigation, it should not have the ability to claw back the properly paid benefits and cease the ongoing benefits.  The agency can always conduct a continuing disability review to remove the person from the disability rolls later by showing improvement or that the first decision rested on error.  SSA has its remedies.  Restricting the reopening and revision process levels the playig field and removes the punitive component of taking away granted benefits to individuals acting in good faith for those claims on the cusp.

But did you notice the name of the lawyer representing Carrillo-Yeras?  I enjoyed working on and arguing that case.  The win is just sweet.