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. 

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