Well really, just the first and the last. Vocational experts are called upon by the Social Security Administration to tell us whether a claimant can perform either his past relevant work or any other work that exists in the national economy given assumptions of residual functional capacity, age, education, and work experience. The vocational experts then have to state how many of such jobs exist in the regional, other regions, or national economy.
I agree that vocational experts are trained to express the first set of opinions. Whether a person can or cannot perform a specific job given well-defined limitations and capacities -- that is the stuff that vocational experts (VE) as rehabilitation specialists are trained to perform. But the VE don't really do that job very well on the whole. SSA issued Social Security Ruling (SSR) 00-4p 13 years ago to address the problem of rogue VE that would contradict published data in the Dictionary of Occupational Titles and its companion publications without admitting to the deviation, explaining the deviation, or having any good basis or reason for the deviation. This happens because of negligence, recklessness, disregard for the truth, or prevarication. In the vernacular, we call that last categories "lies."
I start with the premise that VE will get the requirements of work wrong a statistically significant percentage of the time. I base this assumption on 28 years of experience in thousands of SS disability hearings, thousands of SS disability appeals to the United States District Court, and something in the range of 150 appeals to the United States Court of Appeals, and the Commissioner of Social Security's perception that the ruling was necessary at all.
But VE do not just stop at stating whether a person can perform his past relevant work and other work, VE must state the incidence of that other work in the regional, multi-regional, or national economy. This is not a matter of expertise, it is an objective fact that does not take an expert. It takes a lot of time and a clicker. In the alternative, it takes statistical extrapolation from a relevant data set to estimate the numbers of jobs in the aggregate. Think exit polling. If the pollsters get a random sample of voters leaving the polls that fairly represents the demographics of the voting pool as a whole, the pollsters can extrapolate that data to project a winner in tonight's vote tally. Same process of statistical extrapolation works here.
That is the problem. The VE aren't trained to know, don't have the experience to know, aren't paid to know, and just don't know how many jobs there are in any given occupational classification. The Bureau of Labor Statistics (BLS) keeps occupational group numbers. Given the lack of pay, lack of incentive, and the complete disregard of the average Administrative Law Judge to insist on better, most VE will give a complete OES/SOC/Census Code number aggregation of jobs as if it represented jobs exclusively in one DOT code.
Example: OES group 51-9199 represents 218,000 jobs in the national economy according to the BLS extrapolation. The VE identify an occupation within that classification and state that the DOT code represents 200,000 or 20,000 jobs in that classification in the nation. Do you believe 200,000? Do you believe 20,000 or 10% of the total fall into that classification? Would it matter if I told you that group 51-9199 represents over 1500 DOT codes at all ranges of exertion and at all skill levels? Does it matter to you that unskilled work has been automated or shipped overseas in the past 10, 20, or 30 years? Does it matter to you that the VE can offer no, absolutely zero, justification for the number beyond describing the size and shade of their own personal black box? Well it should.
People on the cusp of disability have their cases adjudicated at the "other work" question. Can that person engage in "substantial gainful activity" meaning full-time work in light of his age, education, and work experience. When VE testify negligently, recklessly, with disregard for the ascertainable truth, or with intent to prevaricate in their heart, they damage the integrity of the largest adjudicative body in the world. VE make disability adjudication a lottery based on the willingness of the VE to just make it up.
Note to the VE out there: stop it.
Thursday, August 15, 2013
Monday, July 1, 2013
Social Security Disability Adjudcation -- Get Real
It seems popular to allege that the administrative system allows too many people to collect disability benefits either the earned variety (SSDI) or the welfare variety (SSI). The AP story trumpets the alarm now heard in Congress -- the system is too lax. STEPHEN OHLEMACHER writes the AP piece that now circulates all the major newspapers.
The piece focuses on the allegation of ALJ misfeasance. Really? That discussion assumes that the ALJ corps is responsible in some meaningful manner for the growth in the disability rolls. The facts do not allow the conclusion.
The Social Security Advisory Board publishes the data. In fiscal year 2000, the agency received just under 2 million claims for disability. The initial claims processing allowed nearly 850,000 claims at initial or reconsideration. The ALJ corps heard 433,000 claims that fiscal year, allowing just over 250,000 claims. That's right, less than 25% of the claims allowed required a hearing.
Of the 180,000 claims denied or dismissed by an ALJ, the Appeals Council found legal or factual error in over 29,000 claims. In that fiscal year, the federal courts found legal or factual error in another 6,000 claims.
Jump forward to fiscal year 2012 and find that not much has changed. SSA received over 3 million claims for disability benefits from an aging population with more and more people eligible because of the entry into the workforce of women in the past 30 years. The process allowed 1.1 million claims by initial and reconsideration determination. The ALJ corps hear 688,000 claims and found disability whether granting in full, granting a closed period of disability that has now ended, or finding disability at a later date than originally alleged, in 347,000 claims. So the ALJ corps is still responsible for less than 25% of the claims that are allowed at all.
The Appeals Council continued to reverse and/or remand 20% of the ALJ decisions that it reviewed for legal and factual error. The federal courts found legal or factual error in another 6,900 claims. These astounding reversal rates come despite the advent of Social Security Ruling 11-1p, putting claimants on the horns of a dilemma having to choose to appeal an erroneous ALJ decision or file a new claim, washing away the right to fight against patent ALJ error.
I have been doing this work, appealing administrative and ALJ decisions for coming up on 30 years. Having argued disability claims at all levels of review, and losing before the Supreme Court, I have a relatively rare perspective of seeing these claims squeezed by a process that robs human beings of their dignity in a process bereft of compassion. Frankly, about a quarter of the ALJs are outliers on both sides, granting too many or too few cases. Getting rid of the lottery of ALJ decisional scatter by squeezing towards the middle -- that is a worthwhile goal. Pressing down allowance rates is a bad idea that needs to die a lonely death.
The piece focuses on the allegation of ALJ misfeasance. Really? That discussion assumes that the ALJ corps is responsible in some meaningful manner for the growth in the disability rolls. The facts do not allow the conclusion.
The Social Security Advisory Board publishes the data. In fiscal year 2000, the agency received just under 2 million claims for disability. The initial claims processing allowed nearly 850,000 claims at initial or reconsideration. The ALJ corps heard 433,000 claims that fiscal year, allowing just over 250,000 claims. That's right, less than 25% of the claims allowed required a hearing.
Of the 180,000 claims denied or dismissed by an ALJ, the Appeals Council found legal or factual error in over 29,000 claims. In that fiscal year, the federal courts found legal or factual error in another 6,000 claims.
Jump forward to fiscal year 2012 and find that not much has changed. SSA received over 3 million claims for disability benefits from an aging population with more and more people eligible because of the entry into the workforce of women in the past 30 years. The process allowed 1.1 million claims by initial and reconsideration determination. The ALJ corps hear 688,000 claims and found disability whether granting in full, granting a closed period of disability that has now ended, or finding disability at a later date than originally alleged, in 347,000 claims. So the ALJ corps is still responsible for less than 25% of the claims that are allowed at all.
The Appeals Council continued to reverse and/or remand 20% of the ALJ decisions that it reviewed for legal and factual error. The federal courts found legal or factual error in another 6,900 claims. These astounding reversal rates come despite the advent of Social Security Ruling 11-1p, putting claimants on the horns of a dilemma having to choose to appeal an erroneous ALJ decision or file a new claim, washing away the right to fight against patent ALJ error.
I have been doing this work, appealing administrative and ALJ decisions for coming up on 30 years. Having argued disability claims at all levels of review, and losing before the Supreme Court, I have a relatively rare perspective of seeing these claims squeezed by a process that robs human beings of their dignity in a process bereft of compassion. Frankly, about a quarter of the ALJs are outliers on both sides, granting too many or too few cases. Getting rid of the lottery of ALJ decisional scatter by squeezing towards the middle -- that is a worthwhile goal. Pressing down allowance rates is a bad idea that needs to die a lonely death.
Thursday, May 2, 2013
SSA Makes its Own Case for the Disability Program
Brenda Brown works for SSA. In a regional piece, Ms. Brown makes the case that disability benefits honor all who serve.
Brown lays out the benefits that veterans can access at SSA.
1. Survivor Benefits for those left behind after the death of a service member.
2. Disability Benefits for those returning home with injuries.
3. Disability during medical treatment.
4. Retirement Benefits for those at retirement age or early retirement age. SSA has a special page devoted to retiring military.
Brown lays out the benefits that veterans can access at SSA.
1. Survivor Benefits for those left behind after the death of a service member.
2. Disability Benefits for those returning home with injuries.
3. Disability during medical treatment.
4. Retirement Benefits for those at retirement age or early retirement age. SSA has a special page devoted to retiring military.
Social Security is ingrained in the fabric of American culture. Retirees, survivors, and the disabled count on the benefits to survive. As a nation, we promised ourselves that we would not cast aside the widows, orphans, aged, or disabled to fend for themselves. Rather, we choose to stretch out the safety net to catch them.
Veterans and their families ... we owe them our liberty and providing for survivor, disability, and retirement benefits is the absolute minimum thank you that we owe.
Monday, April 8, 2013
An Open Letter from Former Commissioners of the Social Security Administration
April 4, 2013
An Open Letter from Former Commissioners of the Social Security Administration
As former Commissioners of the Social Security Administration (SSA), we write to express our significant concerns regarding a series recently aired on This American Life, All Things Considered, and National Public Radio stations across the U.S. (“Unfit for Work: The Startling Rise of Disability in America”). Our nation’s Social Security system serves as a vital lifeline for millions of individuals with severe disabilities. We feel compelled to share our unique insight into the Social Security system because we know firsthand the dangers of mischaracterizing the disability programs via sensational, anecdote-based media accounts, leaving vulnerable beneficiaries to pick up the pieces.
Approximately 1 in 5 of our fellow Americans live with disabilities, but only those with the most significant disabilities qualify for disability benefits under Title II and Title XVI of the Social Security Act. Title II Old Age, Survivors, and Disability Insurance (DI) benefits and Title XVI Supplemental Security Income (SSI) benefits provide critical support to millions of Americans with the most severe disabilities, as well as their dependents and survivors. Disabled beneficiaries often report multiple impairments, and many have such poor health that they are terminally ill: about 1 in 5 male DI beneficiaries and 1 in 7 female DI beneficiaries die within 5 years of receiving benefits. Despite their impairments, many beneficiaries attempt work using the work incentives under the Social Security Act, and some do work part-time. For example, research by Mathematica and SSA finds that about 17 percent of beneficiaries worked in 2007. However, their earnings are generally very low (two-thirds of those who worked in 2007 earned less than $5,000 for the whole year), and only a small share are able to earn enough to be self-sufficient and leave the DI and SSI programs each year. Without Social Security or SSI, the alternatives for many beneficiaries are simply unthinkable.
The statutory standard for approval is very strict, and was made even more so in 1996. To implement this strict standard, Social Security Administration (SSA) regulations, policies, and procedures require extensive documentation and medical evidence at all levels of the application process. Less than one-third of initial DI and SSI applications are approved, and only about 40 percent of adult DI and SSI applicants receive benefits even after all levels of appeal. As with adults, most children who apply are denied SSI, and only the most severely impaired qualify for benefits.
Managing the eligibility process for the disability system is a challenging task, and errors will always occur in any system of this size. But the SSA makes every effort to pay benefits to the right person in the right amount at the right time. When an individual applies for one of SSA’s disability programs, the agency has extensive systems in place to ensure accurate decisions, and the agency is home to many dedicated public servants who take their ongoing responsibility of the proper stewardship of the programs very seriously. Program integrity is critically important and adequate funds must be available to make continued progress in quality assurance and monitoring. In the face of annual appropriations that were far below what the President requested in Fiscal Year 2011 and Fiscal Year 2012, the agency has still continued to implement many new system improvements that protect taxpayers and live up to Americans’ commitment to protect the most vulnerable in our society.
It is true that DI has grown significantly in the past 30 years. The growth that we’ve seen was predicted by actuaries as early as 1994 and is mostly the result of two factors: baby boomers entering their high-disability years, and women entering the workforce in large numbers in the 1970s and 1980s so that more are now “insured” for DI based on their own prior contributions. The increase in the number of children receiving SSI benefits in the past decade is similarly explained by larger economic factors, namely the increase in the number of poor and low-income children. More than 1 in 5 U.S. children live in poverty today and some 44 percent live in low-income households. Since SSI is a means-tested program, more poor and low-income children mean more children with disabilities are financially eligible for benefits. Importantly, the share of low-income children who receive SSI benefits has remained constant at less than four percent.
Yet, the series aired on NPR sensationalizes this growth, as well as the DI trust fund’s projected shortfall. History tells a less dramatic story. Since Social Security was enacted, Congress has “reallocated” payroll tax revenues across the OASI and DI trust funds – about equally in both directions – some 11 times to account for demographic shifts. In 1994, the last time such reallocation occurred, SSA actuaries projected that similar action would next be required in 2016. They were right on target.
We are deeply concerned that the series “Unfit for Work” failed to tell the whole story and perpetuated dangerous myths about the Social Security disability programs and the people helped by this vital system. We fear that listeners may come away with an incorrect impression of the program—as opposed to an understanding of the program actually based on facts.
As former Commissioners of the agency, we could not sit on the sidelines and witness this one perspective on the disability programs threaten to pull the rug out from under millions of people with severe disabilities. Drastic changes to these programs would lead to drastic consequences for some of America’s most vulnerable people. With the lives of so many vulnerable people at stake, it is vital that future reporting on the DI and SSI programs look at all parts of this important issue and take a balanced, careful look at how to preserve and strengthen these vital parts of our nation’s Social Security system.
Sincerely,
Kenneth S. Apfel
Michael J. Astrue
Jo Anne B. Barnhart
Shirley S. Chater
Herbert R. Doggette
Louis D. Enoff
Larry G. Massanari
Lawrence H. Thompson
An Open Letter from Former Commissioners of the Social Security Administration
As former Commissioners of the Social Security Administration (SSA), we write to express our significant concerns regarding a series recently aired on This American Life, All Things Considered, and National Public Radio stations across the U.S. (“Unfit for Work: The Startling Rise of Disability in America”). Our nation’s Social Security system serves as a vital lifeline for millions of individuals with severe disabilities. We feel compelled to share our unique insight into the Social Security system because we know firsthand the dangers of mischaracterizing the disability programs via sensational, anecdote-based media accounts, leaving vulnerable beneficiaries to pick up the pieces.
Approximately 1 in 5 of our fellow Americans live with disabilities, but only those with the most significant disabilities qualify for disability benefits under Title II and Title XVI of the Social Security Act. Title II Old Age, Survivors, and Disability Insurance (DI) benefits and Title XVI Supplemental Security Income (SSI) benefits provide critical support to millions of Americans with the most severe disabilities, as well as their dependents and survivors. Disabled beneficiaries often report multiple impairments, and many have such poor health that they are terminally ill: about 1 in 5 male DI beneficiaries and 1 in 7 female DI beneficiaries die within 5 years of receiving benefits. Despite their impairments, many beneficiaries attempt work using the work incentives under the Social Security Act, and some do work part-time. For example, research by Mathematica and SSA finds that about 17 percent of beneficiaries worked in 2007. However, their earnings are generally very low (two-thirds of those who worked in 2007 earned less than $5,000 for the whole year), and only a small share are able to earn enough to be self-sufficient and leave the DI and SSI programs each year. Without Social Security or SSI, the alternatives for many beneficiaries are simply unthinkable.
The statutory standard for approval is very strict, and was made even more so in 1996. To implement this strict standard, Social Security Administration (SSA) regulations, policies, and procedures require extensive documentation and medical evidence at all levels of the application process. Less than one-third of initial DI and SSI applications are approved, and only about 40 percent of adult DI and SSI applicants receive benefits even after all levels of appeal. As with adults, most children who apply are denied SSI, and only the most severely impaired qualify for benefits.
Managing the eligibility process for the disability system is a challenging task, and errors will always occur in any system of this size. But the SSA makes every effort to pay benefits to the right person in the right amount at the right time. When an individual applies for one of SSA’s disability programs, the agency has extensive systems in place to ensure accurate decisions, and the agency is home to many dedicated public servants who take their ongoing responsibility of the proper stewardship of the programs very seriously. Program integrity is critically important and adequate funds must be available to make continued progress in quality assurance and monitoring. In the face of annual appropriations that were far below what the President requested in Fiscal Year 2011 and Fiscal Year 2012, the agency has still continued to implement many new system improvements that protect taxpayers and live up to Americans’ commitment to protect the most vulnerable in our society.
It is true that DI has grown significantly in the past 30 years. The growth that we’ve seen was predicted by actuaries as early as 1994 and is mostly the result of two factors: baby boomers entering their high-disability years, and women entering the workforce in large numbers in the 1970s and 1980s so that more are now “insured” for DI based on their own prior contributions. The increase in the number of children receiving SSI benefits in the past decade is similarly explained by larger economic factors, namely the increase in the number of poor and low-income children. More than 1 in 5 U.S. children live in poverty today and some 44 percent live in low-income households. Since SSI is a means-tested program, more poor and low-income children mean more children with disabilities are financially eligible for benefits. Importantly, the share of low-income children who receive SSI benefits has remained constant at less than four percent.
Yet, the series aired on NPR sensationalizes this growth, as well as the DI trust fund’s projected shortfall. History tells a less dramatic story. Since Social Security was enacted, Congress has “reallocated” payroll tax revenues across the OASI and DI trust funds – about equally in both directions – some 11 times to account for demographic shifts. In 1994, the last time such reallocation occurred, SSA actuaries projected that similar action would next be required in 2016. They were right on target.
We are deeply concerned that the series “Unfit for Work” failed to tell the whole story and perpetuated dangerous myths about the Social Security disability programs and the people helped by this vital system. We fear that listeners may come away with an incorrect impression of the program—as opposed to an understanding of the program actually based on facts.
As former Commissioners of the agency, we could not sit on the sidelines and witness this one perspective on the disability programs threaten to pull the rug out from under millions of people with severe disabilities. Drastic changes to these programs would lead to drastic consequences for some of America’s most vulnerable people. With the lives of so many vulnerable people at stake, it is vital that future reporting on the DI and SSI programs look at all parts of this important issue and take a balanced, careful look at how to preserve and strengthen these vital parts of our nation’s Social Security system.
Sincerely,
Kenneth S. Apfel
Michael J. Astrue
Jo Anne B. Barnhart
Shirley S. Chater
Herbert R. Doggette
Louis D. Enoff
Larry G. Massanari
Lawrence H. Thompson
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.
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.
Thursday, May 17, 2012
Beltran v. Astrue
On May 2, 2012, the Ninth Circuit decided Beltran v. Astrue. Attorneys that handle Social Security disability cases consider the issue of signficant number of jobs (SNOJ) in the economy to constitute the Holy Grail. Pursued and promised but never quite attained. This case is a baby step closer to that Holy Grail.
As the third attorney on the case, I had some reluctance to pursue the SNOJ issue. This nuanced issue typically requires finesse and a perfect record. The record had some traps but overall a tip in favor of pursuit. The ALJ in the case denied Beltran disability insurance benefits as of her date last insured. The ALJ reasoned that the ability to perform 135 jobs in a single sedentary occupation represented a large enough occupational base to expect the vocational adjustment. The ALJ granted Beltran SSI benefits ... beginning 6 days after the expiration of her date last insured for SSDIB benefits.
SSI carries with it a benefit tied to financial status of income and resources and grants the beneficiary Medi-Cal coverage. Medi-Cal grants access to emergency rooms and public clinics and hospitals. The private medical providers do not treat Medi-Cal recipients.
SSDIB carries with it a benefit that does not depend on household income and resources and grants the beneficiary Medicare coverage after 2 years of pay status. Medicare grants access to doctors and hospitials. The private medical providers do treat Medicare recipients. For Beltran, pursuing the case had real importance to her in terms of monthly benefit and access to medical care.
The case did have a couple of problems. Had I represented Beltran at the District Court level, I would have included a borderline age situation. Lockwood v. Astrue had not been decided and that decision would have mired the presentation of Beltran to a crawl. Serendipity saved me from pressing an issue that probably would have won at the District Court level but provided Beltran with no additional past due benefits. What I perceived as an error turned out to bring good fortune to the case.
And the real reason to blog about this case ... the strident dissent from Judge Ikuta. In April, the Ninth Circuit issued a decision in Molina v. Astrue. That decision broadened the use of the harmless error doctrine. The author of that opinion, Judge Ikuta. The majority opinion in Molina and the dissent in Beltran paints Judge Ikuta into the corner of apologist for bad decisions from the Social Security Administration. Harmless error means that the ALJ decision contains error. Excusing error as harmless and expanding the use of that doctrine means that the adadge "close enough for government work" continues to have vitality.
Judge Ikuta complains that the Court usurps the perogative of the agency to make fact findings based on the slimmest of evidence. Healthcare Employees Union v. NLRB rejected the "rational basis" test that the NLRB sought in review of agency decisions. The Ninth Circuit, like all courts, reviews decisions of agencies on the record as a whole. During the expansion of agency power in the last 80 years, the courts have never abdicated the role of making sure that any agency decision make sense. In other words, the fact that there exists a rational discernable basis for a decision has never and should never rescue the decision from the probing eye of the court.
In footnote 1 of the dissent, Judge Ikuta complains that alcohol abuse caused some of the problems and limitations found by the ALJ to afflict Beltran. Judge Ikuta states that problems caused by a history of alcohol abuse don't count in the disability analysis. First, the ALJ already backed out ethanol from the equation in finding Beltran eligible for benefits 6 days later. Second, the statute and the regulations remove benefit eligibility if the disabling limitations would evaporate with abstinence. The footnote represents a misstatement of law and fact.
The statute requires that Beltran and other claimants for benefits have the capacity to perform a signficant number of jobs in the region in which they live or several regions of the country in light of the residucal capacity for work and in consideration of age, education, and work experience. While it is true that employment practices and openings don't count, that truism pales when the statute requires consideration of age. The Commissioner's regulations call this the ability to adjust to other work. For someone aged 50 or over, the ability to perform every single unskilled sedentary job in the nation does not provide a significant enough occupational base. For a person aged 55 or over, the ability to perform every single unskilled sedentary and light job in the nation does not provide a significant enough occupational base. Beltran was 49 years, 11 months, and 3 weeks old at the time that her insured status expired. The ALJ granted SSI benefits a week later and found that 1 occupation representing at most 135 jobs represented a signficant number. That kind of sophist analysis deserves the searching scrutiny of the court to second guess the decisions of an ALJ.
Public confidence in a system of administrative adjudication demands better and the majority got it right in holding SSA's feet to the fire.
As the third attorney on the case, I had some reluctance to pursue the SNOJ issue. This nuanced issue typically requires finesse and a perfect record. The record had some traps but overall a tip in favor of pursuit. The ALJ in the case denied Beltran disability insurance benefits as of her date last insured. The ALJ reasoned that the ability to perform 135 jobs in a single sedentary occupation represented a large enough occupational base to expect the vocational adjustment. The ALJ granted Beltran SSI benefits ... beginning 6 days after the expiration of her date last insured for SSDIB benefits.
SSI carries with it a benefit tied to financial status of income and resources and grants the beneficiary Medi-Cal coverage. Medi-Cal grants access to emergency rooms and public clinics and hospitals. The private medical providers do not treat Medi-Cal recipients.
SSDIB carries with it a benefit that does not depend on household income and resources and grants the beneficiary Medicare coverage after 2 years of pay status. Medicare grants access to doctors and hospitials. The private medical providers do treat Medicare recipients. For Beltran, pursuing the case had real importance to her in terms of monthly benefit and access to medical care.
The case did have a couple of problems. Had I represented Beltran at the District Court level, I would have included a borderline age situation. Lockwood v. Astrue had not been decided and that decision would have mired the presentation of Beltran to a crawl. Serendipity saved me from pressing an issue that probably would have won at the District Court level but provided Beltran with no additional past due benefits. What I perceived as an error turned out to bring good fortune to the case.
And the real reason to blog about this case ... the strident dissent from Judge Ikuta. In April, the Ninth Circuit issued a decision in Molina v. Astrue. That decision broadened the use of the harmless error doctrine. The author of that opinion, Judge Ikuta. The majority opinion in Molina and the dissent in Beltran paints Judge Ikuta into the corner of apologist for bad decisions from the Social Security Administration. Harmless error means that the ALJ decision contains error. Excusing error as harmless and expanding the use of that doctrine means that the adadge "close enough for government work" continues to have vitality.
Judge Ikuta complains that the Court usurps the perogative of the agency to make fact findings based on the slimmest of evidence. Healthcare Employees Union v. NLRB rejected the "rational basis" test that the NLRB sought in review of agency decisions. The Ninth Circuit, like all courts, reviews decisions of agencies on the record as a whole. During the expansion of agency power in the last 80 years, the courts have never abdicated the role of making sure that any agency decision make sense. In other words, the fact that there exists a rational discernable basis for a decision has never and should never rescue the decision from the probing eye of the court.
In footnote 1 of the dissent, Judge Ikuta complains that alcohol abuse caused some of the problems and limitations found by the ALJ to afflict Beltran. Judge Ikuta states that problems caused by a history of alcohol abuse don't count in the disability analysis. First, the ALJ already backed out ethanol from the equation in finding Beltran eligible for benefits 6 days later. Second, the statute and the regulations remove benefit eligibility if the disabling limitations would evaporate with abstinence. The footnote represents a misstatement of law and fact.
The statute requires that Beltran and other claimants for benefits have the capacity to perform a signficant number of jobs in the region in which they live or several regions of the country in light of the residucal capacity for work and in consideration of age, education, and work experience. While it is true that employment practices and openings don't count, that truism pales when the statute requires consideration of age. The Commissioner's regulations call this the ability to adjust to other work. For someone aged 50 or over, the ability to perform every single unskilled sedentary job in the nation does not provide a significant enough occupational base. For a person aged 55 or over, the ability to perform every single unskilled sedentary and light job in the nation does not provide a significant enough occupational base. Beltran was 49 years, 11 months, and 3 weeks old at the time that her insured status expired. The ALJ granted SSI benefits a week later and found that 1 occupation representing at most 135 jobs represented a signficant number. That kind of sophist analysis deserves the searching scrutiny of the court to second guess the decisions of an ALJ.
Public confidence in a system of administrative adjudication demands better and the majority got it right in holding SSA's feet to the fire.
Sunday, January 22, 2012
EAJA Offset
The recurring question of the reduction of fee awards under 42 U.S.C. §§ 406(a); 1382(d)(2) (hereafter referred to generically as “406(a)”) by the amounts awarded under 28 U.S.C. § 2412. The question arises where counsel has submitted a fee petition or the Social Security Administration reviews the reasonableness of the fees on a review under the expedited fee process on request by the claimant, counsel, or own timely own motion. The result is the same regardless of the scenario under which counsel seeks fees under sec. 406(a) after having first received fees under sec. 2412.
The uncodified portion of the EAJA provides the short answer to the question. The Savings Provisions of Section 206 of Pub.L. 96-481, as amended by Pub.L. 99-80, § 3, Aug. 5, 1985 , 99 Stat. 186, provide that:
(Emphasis added); see also HALLEX I-1-2-91(A).[i] This uncodified provision articulates the intent of Congress that counsel not receive and keep both EAJA and fees under 42 U.S.C. § 406(b) “for the same work” and if counsel receives both fees then counsel shall refund the smaller fee to the claimant.
“(b) Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) [section 406(b) of Title 42, The Public Health and Welfare] shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code [subsec. (d) of this section]. Section 206(b)(2) of the Social Security Act [section 406(b)(2) of Title 42] shall not apply with respect to any such award but only if, where the claimant's attorney receives fees for the same work under both section 206(b) of that Act [section 406(b) of Title 42] and section 2412(d) of title 28, United States Code [subsec. (d) of this section], the claimant's attorney refunds to the claimant the amount of the smaller fee.”
In a case remanded under 42 U.S.C. § 405(g)(sentence 4), the court enters judgment and counsel seeks EAJA fees immediately. The court does not retain jurisdiction and the time invested on remand is not part of the court case. See generally Shalala v. Schaefer, 509 U.S.
There are times when the EAJA fee can and should offset a fee payable under 42 U.S.C. § 406(a). Those circumstances occur when the fee is “for the same work.” The court retains jurisdiction and work performed on remand is part and parcel of the court case when the court remands pursuant to 42 U.S.C. § 405(g)(sentence 6). Sullivanv. Hudson, 490 U.S. U.S. U.S.
The policy concerns are appropriate. The Congressional purpose in enacting the EAJA is patent. Congress sought to offset the costs of litigating against the government where the United States U.S. Okla.
It is a true observation that the claimant gets no true fee relief by the presence of the EAJA award not offsetting an administrative fee. Where the administrative fee exhausts the 25% withheld for that purpose, the question raised is whether counsel can keep the entire EAJA fee for court work and the entire 25% for the administrative work. The claimant has received some fee relief insofar as counsel had any incentive to take a case to the district court. If it were not for the presence of EAJA fees, many cases would become unviable. This would violate the intent of Congress that people have the resources to litigate against government action that is not substantially justified. Therefore, allowing counsel to retain an EAJA fee and receive fully reasonable compensation for different hours expended before the Social Security Administration is correct.
Finally, any practice by an ALJ, ODAR, Region, or SSA generally to reduce the amount of the sec. 406(a) fees by the amount of the EAJA fees for different time means that counsel that seeks fees both before the Social Security Administration and before the courts for representation of a claimant will have the amount of the EAJA fees offset twice. The courts will offset the amount of a fee payable under 42 U.S.C. § 406(b) by the amount of the EAJA fee. Scarborough , 124 S.Ct. at 1862 fn. 2. It is the court that is obligated not to offset the EAJA fee against the sec. 406(b) fee but to order counsel to reimburse the smaller of the two fees for time paid for twice.
In light of the uncodified portion of the EAJA, the intent of Congress, and the possibility that in many cases the court will order the reimbursement against a fee payable under sec. 406(b), it is not appropriate to reduce, credit, offset, or otherwise take into account the amount of a prior EAJA award in setting the fees payable under sec. 406(a).
[i] This section “provides that when a representative received fees for the same work under both section 206(b) of the Social Security Act and EAJA, the representative must refund to the claimant the amount of the smaller fee.” The “NOTE” in the following paragraph ignores the operative phrase “for the same work.” POMS GN 03990.040 clarifies the “for the same work” requirement for offset. See also POMS SI 00830.100(B)(5).
[ii] A fair question, beyond the pale of this position paper, is whether time expended by counsel after remand from the court under sentence 6 should be the focus of fees under sec. 406(a) or 406(b).
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