Dominguez v. Colvin -- the CAT and Award of Benefits

Ninth Circuit decided Dominguez v. Colvin on December 15, 2015.  This is the latest development in the Credit-as-True (CAT) jurisprudence in the Social Security cases decided within the circuit.  The CAT has fermented within the circuit since at least 1988.

In Varney v. Secretary of HHS, the Court clarified the scope of judicial power under the Social Security Act as including the power to credit the testimony is true and to remand for the payment of benefits.  Varney establishes a three-part test for a remand for the payment of benefits.  First, the record was fully developed and further administrative proceedings would serve no useful purpose.  Second, the ALJ failed to provide legally sufficient reasons for rejecting the evidence, whether a medical opinion or the claimant's testimony.  Third, if the improperly discredited evidence were credited as true, the ALJ would be acquired to find the claimant disabled on remand, then the court would reverse an award benefits.  Judge Stephen Reinhardt is the author of Varney.

Judge Reinhardt turned up the heat in Garrison v. Colvin, decided in July 2014.  Garrison made the three-part test sound mandatory with one caveat.  Garrison allows for the remand if the record as a whole creates serious doubt that the claimant does in fact suffer from a disability.

Burrell v. Colvin pulled back on the reins.  Burrell rejected the government's position that the court can never credit evidence as true and remand for the payment of benefits.  Burrell rejected the claimant's position that Garrison established a requirement to remand for the award of benefits.  In a decision authored by Judge Susan Graber, the court held that even if the facts met the Garrison elements, the court retains the flexibility in determining the appropriate remedy.  Burrell found serious doubt and remanded.  Judge Mary Schroeder dissented and would have applied Garrison to award benefits.

Judge Sandra Ikuta entered the fray in Treichler v. Comm'r of SSA.  Treichler resurrected the discretionary component of the CAT, pointed to the review of a District Court decision to remand rather than award benefits as falling under the abuse of discretion standard, and other cases describing the power to award benefits as used in rare circumstances.  Treichler stands for the proposition that in assessing the exercise of the power to award benefits as opposed to a remand for further proceedings, that the court reviews the record as a whole including evidence and theories never espoused by the ALJ as a basis for rejecting the claim for disability benefits.  Judge Wallace Tashima dissented and would have applied Garrison to award benefits.

Judge Ikuta uses Dominguez as the platform to swing the pendulum back to the other side.  While Garrison made the credit-as-true doctrine as appearing mandatory in many circumstances, Dominguez makes the CAT appear exceedingly rare.  Dominguez holds that the District Court must find that administrative proceedings would serve no useful purpose.

And therein lies the rub.  The no useful purpose element of the CAT requires a tempered consideration of not only the fairness of additional administrative proceedings to the claimant but also the preservation of scarce resources.  Where the result is obvious, the court should reverse an award benefits.  It isn't so much that additional administrative proceedings would serve no useful purpose, but more that the utility gained from a remand are unlikely to provide a basis for a different result other than the payment of benefits.

The representatives that handle claims will complain among themselves about vindictive ALJs that will change factual findings on remand to avoid the payment of benefits. That arises because the ALJ corps sees its function not as adjudicating the eligibility for benefits and whether a claimant meets specific legal requirements to obtain relief promised by the Social Security Act, but instead to determine whether an individual claimant deserves to receive disability benefits.  Some ALJs look for legal and proper bases to award benefits.  Some ALJs look for legal and proper bases to deny benefits.  That is why we have a decisional scatter where some ALJs pay 85% of the claims and other ALJs pay 15% of the claims.  This creates a nightmare for claimants and their representatives.  We can accurately predict the results in only 30% of all claims.  We know that in 15% of the cases, no ALJ will pay the case; we know that in 15% of the cases, every ALJ will pay the case.  That leaves 70% of the cases in the middle where no one can tell whether a claimant will receive a favorable or unfavorable decision until we know one the irrelevant fact — the identity of the ALJ.  That lottery-affect represents a horrible way to dispense administrative justice in the largest adjudicative body in the world.

The courts play an important role in evening out the dispensation of administrative justice.  When the court pays benefits on a fact pattern, the soft precedential effect of that decision permeates through the system and creates a floor to push up the bottom towards the middle.  When the court denies relief on a fact pattern, that soft precedential effect pushes the top down towards the middle.  Political pressure and bad press on disability claimants in general serve to push all of the decision-makers down, driving up the incidence of denied benefits for people who truly cannot work and to also meet the strict legal requirements of the Social Security Act.  When the pendulum swings from Varney to Garrison to Burrell to Treichler and now to Dominguez, the lack of stability and percolation of the issues within the circuit does something that the law should never do — add a layer of and certainty and doubt.

The panels in Burrell and Treichler asked the parties to comment on whether the Ninth Circuit should hear the CAT en banc with an 11 judge panel.  The government declined the invitation, probably because SSA got what it wanted in the form of a remand to preserve its jurisdictional turf to make decisions.  The claimants in Burrell and Treichler declined, satisfied that they got some relief.  In the near future, the court will need to take the CAT en banc and resolve the tension of the Varney legacy and to provide some formulaic consistency to the question of when a district court should reverse an award benefits and when the district court should remand for further proceedings.

JMHO, YMMV.

What Happens When Allowance Rates Drop ... to the Public Fisc

Ask any ALJ or any representative that handles Social Security disability claims -- allowance rates have dropped for the good judges, the bad judges, and those in between.  According to the ALJ disposition data figures, the allowance rate of all dispositions in FY 2010  was 46%.  The allowance rate for all decisions was 67%.  The allowance rate for all dispositions in FY 2015 was 37%.  The allowance rate for all decision was 53%. 

The allowance rates dropped by 9% for all disposition and 14% of all ALJ decisions.  Good for the public fisc, right?  The answer is counter intuitive and  the dilution of allowance rates just hurts those that cannot fend for themselves -- the disabled.  But it also hurts the public fisc. 

President Reagan advocated and signed into law the Equal Access to Justice Act to to give common people the ability to fight unreasonable government action.   28 USC sec. 2412.  As long as the person or organization meets the financial ceiling test, that person or organization can shift part of the fees to the United States for acting unreasonably.  The rate is $125 per hour adjusted potentially for inflation. 

In FY 2010, SSA paid $19 million in EAJA fees for making or defending flawed decisions denying human beings disability benefits.  In FY 2015, SSA paid $38 million in EAJA fees.  What happens when the ALJ corps succumbs to political pressure to deny benefits?  The corps does it badly.  Does it benefit the public fisc?  Not in terms of EAJA fees, the government doubled its EAJA outlay in five short years. 

Remand for Further Proceedings in Esparza v. Colvin

The little trinkets of gold filter down in unpublished opinions.  Esparza v. Colvin provides insight into the court's thinking and assumptions that will prove dangerous.

Esparza remands for further proceedings because the ALJ did not give good reasons for rejecting the claimant's testimony or the opinions of the treating physician.  Pretty pedestrian stuff, the issues that permeate Social Security cases on a daily basis.  The federal courts decide those issues every day.

But a battle wages on in the Ninth Circuit over the remand versus pay issue.  The agency lawyers and the court have yet to address the elephant in the room -- the statute clearly permits the courts to find that the claimant deserves to be paid without a remand for further proceedings.  42 USC sec. 405(g) and (i).  More on that another day.

Esparza remands for further proceedings as a useful exercise to further develop the record.  Fair enough, the court has discretion under the statute and the cases tip the hat in that direction without giving fair account to the statute.  The next sentence has a bomb waiting to explode:

If she deems it appropriate, the ALJ should reopen the hearing to receive additional evidence.  

Whoa Nellie.  We just spent six pages analyzing how the ALJ abused her discretion in weighing evidence and now the court wants to inject another round of unfettered discretion into the process.  Bad politics.

 The closed remand also violates agency policy.  When the ALJ makes a decision on remand by the court,

The ALJ will generally decide the remanded issues through the date of the new hearing  decision, or in title II cases involving an expired date last insured, through the date of last insured status.

HALLEX I-2-8-18.  How will the ALJ adjudicate through the date of the new decision without taking new evidence of recent education, recent work attempts/activity, and medical treatment.

When the ALJ makes an unfavorable decision, the Appeals Council will get around to the request for review in about 18 months.  The district court will take at least another year to decide the case at that leve.  And the court of appeals, Betty hold the door because that level of review will take two years.  We know that because the Ninth Circuit case number is 13-16522.  The "13" -- that means the appellant filed a notice of appeal in 2013.  The District Court case number is 2:12-cv-00733-SPL.  The "12" -- that means that the claimant for benefits filed a complaint in that court in 2012.

The case is likely five years stale from the date of original ALJ decision.  Discretion to receive additional evidence is misguided if not simply wrong.  It is only palatable if the ALJ will just award benefits to a claimant that probably applied for disability in 2008 (my guess).  Thomas Alvarez Esparza has endured a probable seven-year wait and won't get a decision from SSA until mid- to late-2016.

Sheridan v. Colvin ... another unpublished opinion

The Ninth Circuit reversed and remanded by a 2-1 vote on November 17, 2015.  Judges Fletcher and Berzon found that the ALJ did not give clear and convincing reasons to reject the testimony of Sheridan about her migraine headaches.  Judge Bea disagreed.

The majority found pedestrian errors.  Sheridan qualified the statement about activities with statements that she did so when she had a good day or depending on how she felt.  The Ninth Circuit needs to adopt a confrontation requirement so that the ALJ cannot just lurk with a perceived inconsistency and spring it at the time of decision.  The hearings do not last long enough to permit responsible representatives to ask about everything in the record.  The ALJ has a duty to develop the record.  Soto-Olate v. Holder imposes that obligation in the immigration context.

The court faults the ALJ for comparing statements in 2007 to 2008 as different.  The court finds it plausible that different times might have different symptoms and responses.  That is called commonsense.  The ALJ never asked.  See Soto-Olarte.

The court found insubstantial the comparison of onset in 2008 to the cessation of work in 2008.  Again, just a silly statement by an ALJ.  Life is progressive and erosive.  I was fine five years ago does not mean that I am fine today.  The ALJ never asked.  See Soto-Olarte.

The court found that the ALJ engage in conflation for simple migraines with migraines with aura.  If the ALJ does not understand the distinction, the ALJ has a solution, ask.  The ALJ never asked.  See Soto-Olarte.

Now the reason for writing.  The dissent would excuse bad decision-making and leave it to the ALJ to just speculate wildly about perceived inconsistencies without ever asking.  Judge Bea writes that doing laundrm, cooking dinner, cleaing the yard, shopping once or twice a week, caring for two pet dogs, .going to the track to watch her son race, and entertaining visitors would take hours of sitting, standing, and walking.  The italics - those are the judge's.  Sure they do, if Sheridan did them all consecutively or all in the same day.  But the ALJ didn't say that and Judge Bea doesn't report that.  The ALJ just combined them and said, well if you can accumulate hours of activity in a week, then you must be able to work.  The ALJ could have asked about the number of hours of activity in any particular day.  The ALJ never asked.  See Soto-Olarte.

Judge Bea implies in footnote 2 that Sheridan's response to physical therapy changed in June 2008 because she applied for benefits in March and alleged disability in February 2008.  The dust of slander is that Sheridan decided to exaggerate her disability in March and lied in June. The other alternative is that Sheridan got worse after July 2007, couldn't handle work by February, and told her doctors that therapy aggravated the headaches in June.  The ALJ never asked.  See Soto-Olarte.

I have a secret to tell the ALJs and the reviewing Article III judges.  Life is not static.  Disability is not static.  Symptoms vary for any number of reasons.  If you want to find disabled people, go to public places -- the ball game, high school gyms, the store -- go live a little life and get out the sequestered notion that the disabled live a secluded existence getting spoon fed their meals.  Just silly, no naive and puerile.

EM-13024 And Fees to Representatives that Waive Direct Payment

The Social Security Administration regulates fees that representatives can charge and receive.  The Program Operations Manual System (POMS) confirms agency policy.  The regulations carve out an exception when SSA will not involve itself in the authorization of when a representative can charge and receive a fee.  20 C.F.R. sec. 404.1720(e).  That exception concerns payment an entity or government agency will pay the representative.  The exception has two elements:  (1) the claimant will not have liability to pay fees or expenses to the representative or someone else; and (2) the representative tells SSA that he/she is waiving the fee from the claimant.  The form is SSA-1696 - the appointment of representative form.  The portion of the form provides:

I certify that my fee will be paid by a third-part entity [...] that the claimant [is] free of all liability [...]  to pay any fee or expenses to me or anyone as a result of their claim(s) or asserted rights(s).  [...] Do not check this box if a third-party individual will pay the fee.)

Now for the fun stuff.   On July 15, 2013, SSA published an Emergency Message.  EM-13024 provides guidance on what to expect when a claimant has multiple representatives and SSA approves the fee agreement (the expedited fee process).  The first and third examples reflect the waiver fees benefiting the claimant and not the representatives.  If the waving representative is a member of the firm that will receive a fee, the fee is reduced.  If the waiving representative is not a member of the firm that will receive a fee, the fee is not reduced.  I am not sure how that differentiation squares with HALLEX I-1-2-18.  When a representative waives, the other representatives should receive a percentage of the fee regardless of whether the waiving representative was a member of the firm.

The EM represents a concession that permits claimants to change representatives and permit the new representative to receive a full fee.  Many representatives won't take a claim if they can't get the fee agreement approved.  No one likes fee petitions and SSA sees a way to accommodate the interests of the claimants and the representatives as long as the waiving representative comes from a different firm from the other representative(s).

Now the hard part -- example two is wrong.  Examples one and three represent an accommodation and a sub-regulatory address of a bare bones statutory scheme.  But the second example contradicts the regulation.

The regulation permits a representative to get paid by a third party if and only if the claimant has no liability to any representative for the fees or expenses associated with the claim.  The appointment of representative form tracks the regulation.  But example two allows the representatives from firm A to receive the fees while the solo practitioner gets paid by a third-party entity. We can ignore the withdrawing representative from firm B so the redacted example is this:

The claimant appointed two representatives from Firm A, [...] and one representative who is a sole practitioner. [...] The sole practitioner waived charging and collecting a fee from the claimant or any auxiliary beneficiaries because a third party entity will be paying his or her fee. The two representatives from Firm A have an approved fee agreement that each of them signed, and SSA determines a fee of $6000. The representatives from Firm A will receive $3000 each.

The claimant in the example has a liability to the representatives from firm A.  SSA pays the fees but that payment comes from the past due benefits -- making the liability or payment indirect.

If the sole practitioner gets paid by firm A, then the representatives are paying the solo to represent the claimant without SSA authorization over the fee.  While that fits with fee splitting rules under the Rules of Professional Conduct and the Model Rules, it doesn't fit with the expedited fee process and the regulations stating that SSA will authorize not only the fees to the representatives from firm A and the payment to the solo.

If the sole practitioner gets paid by someone else (an insurance carrier or a governmental entity), then a real question exists about the value of the services provided by the members of firm A or the solo or both.  If the claimant ends up with the representatives from firm A, the only reason to permit the solo to get paid by the third-party entity is a time saving device and the assumption that the third-party entity can protect its own interests.  If the claimant ends up with the solo and the paying entity is firm A, then SSA is encouraging a business model that violates the regulation and defeats the interest of the claimant.

The claimant hires firm A.  The claimant appoints one or more representatives from firm A to represent the claimant at the hearing.  SSA sets the claim for hearing.  Firm A hires the solo to appear at the hearing.  The claimant finds out about the solo the day of the hearing or some time shortly before the hearing.  The claimant does not get the continuity of representation, the representative most familiar with the claim, or someone responsible for the claim at the firm.  The arrangement violates the regulation and removes the financial supervision of the representation by the solo by SSA.

EM-13024 will sunset on January 15, 2016.  SSA should delete example 2.  It violates the regulation.

Shapiro v. Social Security Administration -- ALJ firing upheld

The Federal Circuit upheld the firing of an Administrative Law Judge for failing to meet productivity requirements.  The case is important because it documents the expectation of the Social Security Administration and the constraints that this puts on claimants seeking benefits.

In 2007, the Chief ALJ told the ALJ corps that the agency expected between 500 and 700 legally sufficient decisions each year.  So let's do the math.  An ALJ has to review the file, conduct the hearing, and give instructions to someone else to write the decision.  The ALJ has to review the decision and sign it.  We can assume that an ALJ takes about five weeks vacation per year and actually sits on the bench only every other week.  We also have holidays to address as well.  That brings us down to perhaps 23 weeks of hearings per year.

If the ALJ hears 20 cases per week, that ALJ will fall short of the productivity goal of 500 dispositions per year.  If the ALJ hears 30 cases per week, the ALJ will almost meet the upper edge of the disposition expectation announced in October 2007.  Assuming 24 hearings in a week and having hearings on four of the five weekdays, the ALJ must have six hearings per day.  That's at best an hour per hearing four days a week, 23 weeks per year to get into the range.

Some cases have relatively simple dispositions.  The ALJ calls a medical expert who testifies that the claimant meets or equals a listed impairment or has a residual functional capacity that calls for application of a favorable grid rule and the case is over in about 15 minutes.  But this does not address the cases on the bubble.

The case on the bubble requires full examination of any medical expert called by the ALJ, full examination of the claimant for benefits including a document by document explanation of any conflict that the ALJ might have perceived in terms of activities of daily living, adequacy of medical treatment, and other reasons that the ALJ might articulate later in an unfavorable decision.  The ALJ will likely have called a vocational expert to testify at the hearing.  That witness will lack any degree or training in statistical analysis and therefore have to make up numbers about the incidence of jobs in the national economy.

Realistically, a full-blown hearing for a case in the bubble where the person has an arguable disability would require a four hour process.  No consistency exists from vocational expert to vocational expert and little consistency exists from ALJ to ALJ.  Can an ALJ have that lengthy of a hearing for any one single case?  In firing ALJ Shapiro, SSA has responded that an ALJ that regularly permits a full due process hearing will likely end up on the short end of the stick.  The agency expects the ALJ to manage the docket and dispose of the cases in the same period of time as the rest of the corps.  An ALJ that wants to provide due process in an administrative hearing on a regular and continuing basis for the half of cases that require that degree of inquiry will never meet the productivity expectations of the agency and find themselves in a disciplinary proceeding.

Harshaw v. Colvin

The Ninth Circuit affirmed in an unpublished memorandum the claim for disability in Harshaw v. Colvin.  The non-precedential memo deserves note because it marks a dangerous and wrong trend.  The court imposed issue exhaustion from the ALJ level.

Harshaw relies on Meanel v. Apfel and Silveira v. Apfel to get to the point of exhaustion and the absence of waiver of the exhaustion rule.  I know a little about those cases -- I was counsel in both. . Meanel has pedestrian pedigree.  She sought to attack vocational expert testimony based on evidence from a private vendor about job numbers; evidence never presented to the agency.  Meanel says "too late."  The claimant had counsel and court is too late.

Silveira had a companion case, Vargas.  Both raised the legal issue of application of the grids to individuals with semi-skilled backgrounds, no transferable skills, and illiterate in English.  Vargas did not raise the issue in the District Court.  Silveira did.  The court found that the legal issue was not waived and reversed in Vargas.

What do either of these cases have to do with Harshaw?  Not much.  Harshaw presented evidence to the ALJ that he suffered from pes planus, PTSD, and a personality disorder.  The record contained the evidence.  In Meanel, the record did not contain the job numbers evidence.  Sound different?  It is.  Expanding Meanel to include not only that the claimant present the evidence but also make a specific argument about the application of that evidence asks too much.  The evidence raises the issues and the ALJ is the inquisitor, not an adversary.  Meanel just doesn't apply, at all.

The district court had the first bite at the apple in Harshaw.  The court relied on two other USDC decisions:

Cisneros v. Colvin,No. 12-cv-0931-BAM, 2013 WL 5375490 at * 9 (E.D. Cal., Sept. 24, 2013) (finding waiver when plaintiff failed to raise the issue of improper past relevant work determination during administrative proceedings); Shaw v. Comm'r of SSA, 2008 U.S. Dist. LEXIS 30170, *20 (N.D. Cal. 2008) (Claimant waived argument challenging past relevant work when he failed to raise that objection at the hearing);

In a typical hearing, the ALJ will ask the vocational expert to characterize the claimant's past relevant work.  The VE's get it wrong because the witness does not have access to the earnings record.  The VE will miss earnings that do not qualify as substantial gainful activity or occurred too long ago to count.  But the claimant has the burden of establishing that s/he cannot perform the past relevant work.  In cases where the VE mischaracterizes the past work and the represented claimant does nothing, then Houston, we have a problem.  That isn't waiver; that is a decision that rests on substantial evidence before the agency at the time of the decision.  Coming up with new evidence or arguments about the true nature of the past work might be too late.

But those aren't the facts of Harshaw.  The claimant alleged that the ALJ missed the other impairments and that those impairments made a difference in the outcome of the case.  Waiver -- no, the evidence was there and the claimant never has a burden to argue the case, just the burden to present the evidence that supports the claim.

The Ninth Circuit memorandum ends with the caveat that the missed impairments did not cause other limitations.  Well, if that is the case, then the waiver discussion is irrelevant.  The court should have issued a one paragraph memorandum, the last paragraph.

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.

Phillips v. Colvin/Commissioner

The Ninth Circuit decided Phillips v. Commissioner on August 18, 2015.  I only occasionally write about unpublished opinions but this was my case and I have unique insight into what happened at the District Court level and before the Ninth Circuit.

The court found that Social Security Ruling 13-2p applied the case despite the fact that the Commissioner published the ruling after the ALJ issued the final decision in this case.  The lawyers for the Commissioner conceded at oral argument that the ruling did not represent a change in the law.

SSR 13-2p overrules Parra v. Astrue.   The claimant for benefits need not prove that absence will leave the drug addict or alcoholic still disabled.  The claimant for benefits just needs to prove that it is unclear whether abstinence will lead to recovery or leave the person in a disabled state.

In Phillips v. Astrue, the Commissioner argued that addiction to prescription medication was no different than addiction to street drugs or alcohol.  The District Court in the Eastern District of Fresno bought that argument.  Twice the District Court stated that Phillips was mistaken about the law, because the Commissioner did not concede what she conceded at the Ninth Circuit Court of Appeals, that addiction to prescription medication is fundamentally different than addiction to non-prescribed street drugs or alcohol.

Taking the representations at oral argument before the Ninth Circuit at face value, the representations made before the District Court had no legal support.  The position taken that SSR 13-2p did not change the law makes the argument at the District Court disingenuous.  The government cannot have it both ways.

But that is the role of the government lawyers in federal court defending Administrative Law Judge decisions denying benefits.  The government lawyers do not defend agency policy, the regulations, the rulings, HALLEX, or POMS.   Instead, the government lawyers defend the discretion of the ALJ to do whatever the ALJ wants to do with a particular set of facts.  The agency defense discretion over everything.  Only when the ALJ makes egregious omissions from a decision will the agency seek remand.  But misconstrue the facts and the law, Phillips v. Astrue and the litigation before the Ninth Circuit tells us that the agency defends that.

Young v. Colvin

In an unpublished memorandum disposition, the Ninth Circuit decided Young v. Colvin on July 21, 2015.  On the last line of the mem-dis, the court writes:

And a hotel housekeeper’s occasional interaction with hotel guests does not amount to more than minimal or superficial contact with the public. See DOT 369.687-018, 1991 WL 673072; DOT 323.687-014, 1991 WL 672783. 

Really?    The DOT does not say that and to make that finding without evidence is shocking.

DOT code 369.687-018 is a folder in the laundry and garment industries.  It is not a hotel housekeeper.

DOT code 323.687-014 is the cleaner, housekeeping occupation.  According to the DOT, the worker must:

Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title. May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned as Sleeping Room Cleaner (hotel & rest.). 

Personal assistance to patrons -- minimal and superficial, where does the court fathom that concept?  Words have meaning and personal does too.  The dictionary definition:

Full Definition of PERSONAL1
:  of, relating to, or affecting a particular person :  private, individual <personal ambition><personal financial gain>2
a :  done in person without the intervention of another; also :  proceeding from a single person

b :  carried on between individuals directly <a personal interview>3
:  relating to the person or body4
:  relating to an individual or an individual's character, conduct, motives, or private affairs often in an offensive manner <a personal insult>5
a :  being rational and self-conscious <personal, responsive government is still possible — John Fischer>

b :  having the qualities of a person rather than a thing or abstraction <a personal devil>6
:  of, relating to, or constituting personal property <a personal estate>7
:  denoting grammatical person8
:  intended for private use or use by one person <a personal stereo>

Which of the definitions of personal does the court use in deeming the work of a housekeeping cleaner devoid of more than minimal and superficial?

Sometimes a memorandum disposition is a reaction to bad facts, bad lawyering, or a deep conviction that the claimant will never win.  More often, it is because the case has nothing important to add to a burgeoning load of case law.  Young isn't law of the circuit and a good thing too.  Young is wrong on that last sentence, very wrong.

Hey Courts -- Apply the Law in Effect at the Time of Decision

Not really sure how a pernicious idea that it just would not be fair to review an ALJ decision based on the new regulations, ruling, POMS, HALLEX, or teletype weaseled its way into the cases -- but it has and it is wrong.  It is indefensibly wrong.  

In Lockwood v. Commissioner, the Ninth Circuit observed as its very first observation that the policy pronouncement interpreting the regulation about the impact of age was not in effect at the time of the ALJ decision.  In Chapo v. Astrue, the Tenth Circuit started a long string of cases for the proposition that the court ought to cite and review the ALJ decision based on the regulations in effect at the time of the ALJ decision.  In Rice v. Barnhart, the Seventh Circuit applied a deleted listing.  

In Howard ex rel. Wolff v. Barnhart and  Garrett ex rel. Moore v. Barnhart, the Ninth and Eighth Circuits conceded to the Commissioner's request to apply the interim final rules to children's disability cases decided under those regulations because of changes in the program instead of the final rules promulgated with a delayed effective date.   That application of the rules in effect at the time of the final decision instead of the rules in effect at the time of the court review had a specific and reasoned request -- to prevent the remand of every childhood disability case that would become pending after the final rules took effect.  So did Flener ex rel. Flener v. Barnhart, the Seventh Circuit just never told the public "why."   But those are different issues -- the Commissioner had a good reason and asked that the new rules not apply to all pending cases.  

 The general rule requires the courts to apply the law in effect at the time of the review -- not the law in effect at the time of the decision under review.  Henderson v. U.S.  It isn't like Henderson forged new ground.  Henderson relied on Thorpe v. Housing Authority of Durham.  The modern doctrine to apply the law in effect at the time of the appeal dates back to the founding of the nation.  United States v. Peggy Schooner.  

The author of the wiki article about Peggy Schooner states that a treaty between the United States and France about ships seized at sea during an undeclared war had retroactive effect.  That implication, suggestion, or statement is just wrong.  The treaty applied to pending cases not yet final.  Retroactive application changes the legal result of matters already final.  Application to all pending matters concerns an evenhanded resolution of all matters that will come before the court once the new legal anchor gets set.  

For Lockwood, the application of a different interpretation of a stable but ambiguous regulation has passed.  But Lockwood did not explain or address why it should not apply the interpretation of the regulation in effect at the time of decision.  And don't fret that Lockwood constitutes law of the circuit -- it doesn't.  Mutual Life Ins. Co. v. Lipp.

The numbers game

The vocational expert testifies to the presence of a hundred thousand jobs as a small product assembler -- do you believe it?

There are 145 million jobs in the nation.  There are 12,500 ish DOT codes.  On average, there are 11,600 jobs per DOT code.  But there are a whole lot more of certain jobs -- mostly skilled and semi-skilled.  Do you believe that any unskilled job has significantly more than the statistical average?

OK, vocational expert without any statistical expertise how did you get those numbers?

What are the Standard Occupational Classification groups for the occupations you identified?

There are 23 groups of SOC groups.  There are 818 different line item SOC codes.  Give me the one for this DOT code.

What are the North American Industry Classification System codes?

Work exists in certain industries.  The Census Bureau describes the numbers of jobs by NAICS code.  It is called County Business Patterns.

With the SOC and NAICS codes, anyone can look up the numbers of jobs within those intersections.  The BLS publishes employment projections that do exactly that.

How many production workers have jobs in the wood product manufacturing industry -- about 3,800. Look at line 48.

The wood product manufacturing industry employs 337,900 people.  Please don't tell me that a third of the people in that industry group have jobs as a dowel inspector.  I am not that naive.

Brief Writing Tips in SS cases

BRIEFING TIPS IN

SOCIAL SECURITY CASES

I.          INTRODUCTION

This paper discusses Social Security cases disability claims on appeal to the federal courts.  The reader will find a list of library requirements

A.        LIBRARY REQUIREMENTS

In order to effectively practice Social Security law, the practitioner must have an adequate library.  The library should include all of the following:

5 U.S.C.  covering the Administrative Procedures Act

28 U.S.C. covering the Equal Access to Justice Act

42 U.S.C. covering Titles II, XI, XVI, XVII and XIX of the Social Security Act

20 C.F.R. parts 404 and 416

Social Security Rulings and Acquiescence Rulings published by the Commissioner of the Social Security Administration in the federal register

Programs Operations Manual System (“POMS”)

Hearings, Appeals, and Litigation Law Manual (“HALLEX”) 

Dictionary of Occupational Titles published by the Secretary of Labor

Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles published by the Secretary of Labor

Occupational Outlook Handbook

County Business Patterns

II.         SUBSTANTIVE ISSUES ON A COMPLAINT FOR REVIEW

The biggest difference between the Appeals Council and the federal courts is the liberality with which the Appeals Council will accept new and material evidence.  20 C.F.R. §§ 404.970(b); 404.976(b)(1); 416.1470(b); 416.1476(b)(1).  The federal courts will only review evidence not considered by either the ALJ or the Appeals Council (depending on jurisdiction) for which good cause is shown to explain away the earlier non-submission.  42 U.S.C. § 405(g)(sentence 6). 

The test for the sufficiency of a decision by the Commissioner to deny benefits rests upon the regulatory framework of decision-making.  The Commissioner uses the five-step sequential evaluation process to make decisions.  20 C.F.R. §§ 404.1520; 416.920.  Those steps are:

1)      Whether the claimant is engaging in substantial gainful activity;

2)      Whether the claimant suffers from a medically determinable impairment or combination of impairments that is “severe;”

3)      Whether the claimant meets or equals any “listed” impairment;

4)      Whether the claimant retains the ability to perform his past relevant work; and

5)      Whether the claimant can perform any other work in light of his residual functional capacity, age, education, and work experience. 

Id. 

From an analytical standpoint, I prefer to attack an ALJ decision from the bottom to the top.  By using this methodology, I assume the correctness and defensibility of the decision and unwrap the onion one layer at a time.  It is easier to take nibbles than swallow the beast in one gulp.  In reviewing the writings of other lawyers, I have found that lawyers miss issues more when they leap at an issue rather than analyzing the case bit by bit. 

A.           THE EXISTENCE OF OTHER WORK

My first step inquires whether the ALJ properly found the ability to perform other work.  This step five of the sequential evaluation process inquires whether the claimant could perform work never before performed in light of his age, education, and work experience.  Several tools assist in this process.

Vocational expert testimony used to identify the existence of work activity must either conform to the Dictionary of Occupational Titles and its companions or provide a reasonable explanation for any such deviation.  Social Security Ruling 00-4p.  It is impossible to assess an ALJ’s step five conclusion that a person could engage in substantial gainful activity without comparing any testimony to the DOT and its companions. 

The DOT describes the work generally.  It describes the exertional demands, from sedentary to heavy.  Unexplained deviation from the exertional demands of identified work is error under Social Security Ruling 00-4p.  The describes the skill or training level required of the work activity, known as the SVP.  Skills do not transfer to unskilled work.  Nor do skills transfer to work requiring a higher SVP. 

The DOT and its companion publications describe skill sets.  This is done with work fields and with materials, products, subject matter, and services (MPSMS) codes.  Some publications take the stance that skill will only transfer within same or similar work fields and MPSMS codes.  See Not Just Any TSA, presented at this conference. 

The DOT and its companion publications describe aptitudes, temperaments, physical demands, and environmental conditions.  These rich sources of information describe the general learning ability of work, the dexterity requirements of work, the degree of exposure to the public, the stooping required, the amount of manipulation of objects required, the sound levels, and whether work is performed outdoors, to name a few.  The Social Security Administration does not pay vocational experts enough to check their stock answers against the particulars of the DOT and its companion publications.  At the hearing and on appeal, I inquire, trust, and verify. 

Another tool for examining the sufficiency of the step 5 determination is the grids.  The grids appear at 20 C.F.R. part 404, subpart P, Appendix 2.  Neither an ALJ, a vocational expert, or other component of the Social Security Administration may rebut the findings of disabled directed by the grids.  Social Security Ruling 83-5a.  Therefore, an individual falling into a grid that directs a conclusion of disabled must be found disabled, despite any testimony from a vocational expert to the contrary.  Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995); Cooper v. Sullivan, 880 F.2d 1152, 1156-1157 (9th Cir. 1989). 

B.         THE ABILITY TO PERFORM PAST RELEVANT WORK AND RESIDUAL FUNCTIONAL CAPACITY

The question of whether a claimant can perform past relevant work raises many of the same issues and techniques as the ability to perform other work.  If an ALJ finds that a claimant can perform past relevant work, I check the residual functional capacity findings against the requirements of the work activity generally and specific to this claimant for conformity with the DOT and its companion publications.

The biggest issue at step four of the sequential evaluation process, and the biggest issue to confront the test of ALJ decisions is the resolution of the issue of the claimant’s residual functional capacity.  The determination of residual functional capacity requires that the ALJ blend together the medical evidence, lay evidence, and the subjective complaints of the claimant.  I typically attack each piece of this puzzle individually. 

1.            THE MEDICAL EVIDENCE

Medical evidence in a Social Security case comes in three flavors:  (1) treating evidence; (2) one-time examining physician evidence; and (3) non-examining physician evidence.  Each piece of evidence plays a role in the disposition of a Social Security disability claim. 

The Commissioner articulates a preference for the opinions of the treating physician.  20 C.F.R. §§ 404.1527; 416.927.  As long as the opinions of a treating physician are “not inconsistent” with the balance of the record and is well-supported by medically accepted clinical and laboratory diagnostic techniques, the ALJ must give the opinions of the treating physician “controlling weight.”  Social Security Ruling 96-2p.  I argue that “not inconsistent” means something broader than “consistent” because it is clear that the Commissioner uses the double negative in both the regulations and the ruling intentionally. 

The opinions and findings of examining physicians form the fulcrum against which the opinions of treating physicians are gauged.  I look for similarity of findings and clinical signs, similarity of diagnostic impressions, and similarity of medical source statements about what the claimant can and cannot do.  See Social Security Ruling 96-8p (residual functional capacity is the most that the claimant can do). 

The more interesting and probably underutilized source of appeals on the decisions of an ALJ is the use of the opinions of non-examining physicians.  The ALJ has an obligation to state the weight given to state agency opinions.  20 C.F.R. §§ 404.1521; 416.921; Social Security Ruling 96-6p.  Because the state agency physician or a testifying medical expert is a program physician, the Commissioner entrusts him with the knowledge of the medical requirements of the Social Security regulations.  20 C.F.R. §§ 404.1527(f); 404.1502; 416.927(f); 416.902; Social Security Ruling 96-6p.  The ALJ may not simply disregard an uncontradicted synthesis of the record set forth by a reviewing physician. 

2.            LAY EVIDENCE

The regulations have long provided for the consideration of evidence that does not qualify as an “acceptable medical source.”  20 C.F.R. §§ 404.1512, 404.1513(d), 416.912 and 416.913(d).  In 2006, the Commissioner published Social Security Ruling 06-3p.  In that ruling, the Commissioner directs the ALJ to consider:

“The examining relationship between the individual and the ‘acceptable medical source’;

The treatment relationship between the individual and a treating source, including its length, nature, and extent as well as frequency of examination;

The degree to which the ‘acceptable medical source’ presents an explanation and relevant evidence to support an opinion, particularly medical signs and laboratory findings;

How consistent the medical opinion is with the record as a whole;

Whether the opinion is from an ‘acceptable medical source’ who is a specialist and is about medical issues related to his or her area of specialty; and

Any other factors brought to our attention, or of which we are aware, which tend to support or contradict the opinion.  For example, the amount of understanding of our disability programs and their evidentiary requirements that an ‘acceptable medical source’ has, regardless of the source of that understanding, and the extent to which an "acceptable medical source" is familiar with the other information in the case record, are all relevant factors that we will consider in deciding the weight to give to a medical opinion.”

An ALJ was never free to disregard evidence from non-physicians.  This ruling makes that abundantly clear in an enforceable format published in the Federal Register. 

3.            SUBJECTIVE COMPLAINT TESTIMONY AND EVIDENCE

The greatest source of evidence of what a claimant can and cannot do despite the existence of severe impairments is the claimant himself.  The evidence from the claimant comes in the form of statements submitted with the application for benefits, statements made on questionnaires sent by the state agency, statements made in conjunction with a request for reconsideration or request for hearing, and the testimony given at the hearing itself.  The Commissioner does not insist that the subjective complaint testimony match up with the medical evidence.  In Social Security Ruling 96-7p, the Commissioner sets out the “excess pain standard” as requiring consideration of:

           

1.      The individual's daily activities;

2.      The location, duration, frequency, and intensity of the individual's pain or other symptoms;

3.      Factors that precipitate and aggravate the symptoms;

4.      The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;

5.      Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;

6.      Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and

7.      Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.

An ALJ decision that seeks to reject the testimony of a claimant should always recite the standard set forth in Social Security Ruling 96-7p.  The question that I address in a brief to either the Appeals Council or the federal courts is whether that articulation required by the ruling is both reasonable and supported by substantial evidence of record.

C.  THE LISTINGS

The listings of impairments appear in the regulations at 20 C.F.R. part 404, subpart P, Appendix 1.  Each of the listings states that meeting or equaling a listed impairment presumes that the individual could not engage in gainful activity.  The statutory test for disability is the inability to engage in substantial gainful activity.  Therefore, the failure to meet or equal a listed impairment is never fatal to a claim for adult disability.  Childhood disability is beyond the scope of this paper. 

The listings are detailed and objective evidence oriented.  The listings require specific clinical or laboratory findings.  While equaling a listing is possible during a hearing, it is difficult to allege and prove on appeal except when two or more listings are close.  To challenge the ALJ’s findings that the claimant does not meet a listing, I compare the listing’s requirements to the clinical and laboratory findings throughout the record.  If all of the findings are present, just not in the same place, the issue exists.  Otherwise, it does not.  I will make an argument that someone that comes extremely close to meeting a listing would have a lesser residual functional capacity for work activity.  After all, the meeting or equaling of a listing implies the inability to engage in gainful activity and the residual functional capacity assessment concerns the ability to engage in substantial gainful activity on a full-time basis.  Social Security Ruling 96-8p. 

D.        THE PRESENCE OF A MEDICALLY DETERMINABLE SEVERE IMPAIRMENT

The Social Security Act requires that the Commissioner make a determination of disability on the basis of medically accepted clinical and laboratory diagnostic techniques.  The Commissioner uses the “severe” question to weed out claims that have no merit without the need to address more complicated factual questions in the sequential evaluation process. 

The Commissioner defines a severe impairment at 20 CFR § 404.1521 as follows:

(a)    Non-severe impairments(s).  Any impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.

(b)   Basic work activities.  When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs.  Examples of these include –

(1)   Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

(2)   Capacities for seeing, hearing, and speaking;

(3)   Understanding, carrying out, and remembering simple instructions;

(4)   Use of judgment;

(5)   Responding appropriately to supervision, co-workers and usual work situations;  and

(6) Dealing with changes in a routine work setting.

The regulation is constitutional.  It is a threshold finding for which there are no “gray” areas.  Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In assessing whether an impairment is “severe” the ALJ must consider the combined effect of all of the claimant's impairments on his ability to function, without regard as to whether each impairment alone is severe.  Simply put, step two of the sequential analysis is “a de minimus screening device to dispose of groundless claims.”  Smolen v. Chater, 80 F.3d at 1291 citing Bowen v. Yuckert, 482 U.S.at 153-154, 107 S.Ct. at 2297-98.

The most common area of error in failing to find a severe impairment is in the realm of mental impairments.  When it comes to mental impairments, the opinions of state agency physicians take on greater importance. 

E.         ENGAGING IN SUBSTANTIAL GAINFUL ACTIVITY

Among the five step sequential evaluation process, this is the most rare of issues.  The Social Security Administration generally takes the word of the claimant about the presence of work activity.  Work activity within 12 months of the date of onset of disability in the absence of a prior finding of disability may preclude a finding of disability.  Barnhart v. Walton, 535 U.S. 212, 217-22, 122 S. Ct. 1265, 152 L. Ed. 2d 330 (2002) (impairment and inability to work must last twelve months). 

An individual may begin a trial work period after the onset of disability and after the filing of an application for disability insurance benefits.  20 C.F.R. §§ 404.1579; 404.1588; 404.1598.  Claimants under either title can take advantage of the unsuccessful work attempt classification for work activity less than three months and in some circumstances less than six months.  Social Security Ruling 05-02.  

Current work activity does not foreclose a grant of disability for a prior period.  Earlier work activity that prevents a grant of disability does not foreclose a later onset of disability. 

F.         WRITING THE BRIEF

Focus on the theory of the case.  Many errors have no reason to get briefed.  Only brief material issues.  If the error does not bring the claimant closer to a favorable result but just tells the Court how really bad of a decision is on review, omit it.  This is not a conversation in the wee hours of the morning complaining about the ills of the world.  The Judge or Magistrate Judge have better things to do than entertain a gripe session in writing. 

Write better and shorter.  “Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.”  I would have written a shorter letter, but I did not have the time.  Blaise Pascal. 

Write more clearly.  Buy and use a style guide.  Garner's Modern American Usage or The Elements of Legal Style, by or edited by Bryan Garner belong on every writer’s desk.  Other style guides work as well but everyone can get better.  Refusing to consult a style guide to improve writing is like a world class athlete that forgoes a coach, after all he/she is already a world class athlete. 

And my pet peeve – throw away the verb “to be.”  Writing in the passive voice represents a snap shot, a static view of the world.  Writing in the active voice produces a cinematic experience that moves.  Compare, “Dr. Smith is the treating physician” with “Dr. Smith treated Claude Claimant.”  The first suggests only status, the second suggests an active relationship. 

V.        CONCLUSION

The existence of an ALJ or Appeals Council decision does not spell doom for the claimants case.  The District Court can provide relief.  The courts grant relief in about 50% of the cases filed.  Cite the rulings, the regulations, and applicable circuit precedent and other authority, in that order.  Focus on the issues that show that the claimant can win, not on extraneous issues that are not demonstrably material to the outcome of the case.  The most important practice pointer that I can give is simple, hunt with a rifle and not with a shotgun.