Friday, September 25, 2015

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.

Tuesday, September 15, 2015

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.