Wednesday, December 16, 2015

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.



2 comments:

  1. Applying for or Appealing a Social Security Disability Case can be very challenging. It was very challenging for me, especially the first time my application was denied and I had to file an appeal. I completed an online Social Security Disability Appeal form and submitted it. Little did I know that it would take up to two to three years to even get a court date scheduled. I said to myself, “I can’t wait two to three years just for a court date because by then I will be homeless with no money, no food, and lose everything I ever owned.” Also, going back to work was out of the question because I was not physically or mentally ready to return and would eventually get terminated from a job.

    So I started doing intensive internet research for nine months to find a way to get my Social Security Disability Appeal Case approved without waiting two to three years for court date to be scheduled. I utilized the information I found and won my Social Security Disability Appeal on my own without a court date. I did not have an attorney because I did not want to lose 25% of my back pay to attorney fees and I wanted to decide my own fate. After going through the whole process, that’s when I decided to write this book to explain in detail what documents and tests you need to try to win your Social Security Disability case the first time around or appeal without a court date.

    I do not want anyone to go through what I experienced in trying to get approved for my Social Security Disability for a whole year. It is hard for someone to get approved when they do not know what to do or what documents and tests you may need in order to prove you are indeed disabled.
    This information really helped me get approved for a Social Security Disability Appeal without a scheduled court date. I recommend that you download “How To Win Your Social Security Disability Without An Attorney” so you can start utilizing this information for your Social Security Disability Appeal or the first time you apply.

    If this information was available when I was trying to win my Social Security Disability Appeal, I would have ordered it. But during my nine months of research, I couldn’t find anything like this book out there on the internet. Please take advantage of this information because it takes you step-by-step through how to get your case reviewed without a court hearing and how you first apply for Social Security Disability. This will be the best money you ever spend on a self-help book.

    I created this website to help people better understand the Social Security Disability process. I have also written a book called “How To Win Your Social Security Disability Without An Attorney.” Download this book for $19.99, which is a special limited time offer. Do yourself a favor and purchase this book so you can start trying to get approved for a Social Security Disability Appeal or the first time you apply for Social Security Disability Benefits. To download book click on www.socialsecuritydisabilityandyou.com At the bottom of the webpage click on the Cart Tab to purchase the book “How To Win Your Social Security Disability Without An Attorney.”

    Please click cart on the upper right side of the website to place order.


    Good Luck

    ReplyDelete
  2. Applying for or Appealing a Social Security Disability Case can be very challenging. It was very challenging for me, especially the first time my application was denied and I had to file an appeal. I completed an online Social Security Disability Appeal form and submitted it. Little did I know that it would take up to two to three years to even get a court date scheduled. I said to myself, “I can’t wait two to three years just for a court date because by then I will be homeless with no money, no food, and lose everything I ever owned.” Also, going back to work was out of the question because I was not physically or mentally ready to return and would eventually get terminated from a job.

    So I started doing intensive internet research for nine months to find a way to get my Social Security Disability Appeal Case approved without waiting two to three years for court date to be scheduled. I utilized the information I found and won my Social Security Disability Appeal on my own without a court date. I did not have an attorney because I did not want to lose 25% of my back pay to attorney fees and I wanted to decide my own fate. After going through the whole process, that’s when I decided to write this book to explain in detail what documents and tests you need to try to win your Social Security Disability case the first time around or appeal without a court date.

    I do not want anyone to go through what I experienced in trying to get approved for my Social Security Disability for a whole year. It is hard for someone to get approved when they do not know what to do or what documents and tests you may need in order to prove you are indeed disabled. This information really helped me get approved for a Social Security Disability Appeal without a scheduled court date. I recommend that you download “How To Win Your Social Security Disability Without An Attorney” so you can start utilizing this information for your Social Security Disability Appeal or the first time you apply.

    If this information was available when I was trying to win my Social Security Disability Appeal, I would have ordered it. But during my nine months of research, I couldn’t find anything like this book out there on the internet. Please take advantage of this information because it takes you step-by-step through how to get your case reviewed without a court hearing and how you first apply for Social Security Disability. This will be the best money you ever spend on a self-help book.

    I created this website to help people better understand the Social Security Disability process. I have also written a book called “How To Win Your Social Security Disability Without An Attorney.” Download this book for $19.99, which is a special limited time offer. Do yourself a favor and purchase this book so you can start trying to get approved for a Social Security Disability Appeal or the first time you apply for Social Security Disability Benefits. To download book click on www.socialsecuritydisabilityandyou.com At the bottom of the webpage click on the Cart Tab to purchase the book “How To Win Your Social Security Disability Without An Attorney.”

    Please click cart on the upper right side of the website to place order.


    Good Luck

    ReplyDelete

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