Friday, June 10, 2011

Keyser v. Commissioner of SSA

In this Keyser v. Commissioner of SSA, the Ninth Circuit in 2-1 decision makes the "of course" decision that an Administrative Law Judge must follow the regulations.  The question is the use of the "psychiatric review techinique."   The Social Security Act and the regulations treat the existence of a disability claim based on mental impairments differently.  Part of the Act is the requirement that SSA make decsions on mental impairments with the input of a "qualified psychiatrist or psychologist."  42 U.S.C. sec. 421(h).  As the majority observes, the regulations impose the duty to do more in the regulations. 20 C.F.R. secs. 404.1520a(e); 419.920a(e).  The Administrative Law Judge did not obey the regulations.  Seems to me like a no-brainer but Tim Wilborn had to take this case to the Court of Appeals to get relief. 

So what is this case all about and why is there a dissent?  It comes down to the fallback position in a lot of the 12,000-14,000 Social Security cases that come before the Courts every year - harmless error.  The Commissioner in defending the case and the dissent urging her colleagues to find harmless error simply misunderstand the Congressional intent behind the need to treat mental impairments with a slightly different brush than non-mental impairments. 

Whether it is historical or current bias, we expect people to "snap out of it" or "get over it."  "Pull yourself up by your own bootstraps" becomes the refrain.  But for people with depression, anxiety, and a bipolar disorder, it frequently is not that simple.  Consider for instance the evidence that bipolar disorders are caused by a chemical imbalance in the brain.  Depression can result from or cause a chemical imbalance in the brain.  The person loses the ability to snap, get over, or pull herself up.  That takes us full circle -- Congress made the decision that SSA must treat mental impairments in a more careful manner.  The Commissioner takes that one step further and requires his ALJs to consider mental impairments in the same careful manner.  Only by following the psychiatric review technique can we know that the ALJ's conclusion about the severity of the mental impairment is factually supported. 

The ALJ corps seems to have difficulty in showing its work and the agency defends that sloppiness in court.  The administrative decision in this case wants to entertain the fiction that it is OK to defend sloppy by having someone else fill in the blanks later.  That is not what the Act or the regulations require.  Honestly, is it too much to ask for the decsions to follow the law? 

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