1. Fee Petitions and Travel Time in Social Security Cases

As a practical matter, fee petitions submitted to the Social Security Administration do not bill for time, they bill for a specific result.  It constitutes a substitute for the expedited fee or fee agreement process.  The statute establishes the three criteria as (1) a written agreement filed with the Commissioner before a decision is made; (2) the fee is set at the lesser of $4,000 or 25% of the past due benefits;[i]and (3) the decision made is favorable to the claimant.  Failure of any one of the three conditions preclude the Social Security Administration from approving the fee agreement under the “expedited fee process.”  42 U.S.C. §§ 406(a)(2)(A); 1631(d)(2)(A). When that happens, the representative must file a fee petition including an itemization of time.   

When the fee agreement process does not apply, a representative can charge and receive a fee only upon authorization of the Commissioner.  Before 1991, the fee petition process was the norm.  Now the fee petition process is the exception to the rule.  42 U.S.C. § 406(a)(1) describes the exception to the rule.    The fee petition process applies whenever the fee agreement process does not with limited exceptions.  HALLEX I-1-2-51.  The fee petition process is set out in the regulations.  See, 20 C.F.R. §§ 404.1720 and 416.1520.  Subsections (b) and (c) of those two sections both provide for the petition, decision, and review process.  This raises the question of the parameters of agency discretion in setting fees.  

May a Representative Charge for Travel Time? 

A question arises whether a representative may legitimately bill for time associated with travel or waiting at the hearing office for the agency to call the matter.  The agency has no published policy or statement about billing for travel time.  “A lawyer’s time and advice are his stock in trade.”  Abraham Lincoln. 

The American Bar Association discussed billing practices for fees, disbursement, and other expenses.  ABA Formal Opinion 93-379 (December 6, 1993).  The Formal Opinion posits examples of a lawyer appearing on three matters on the same day in the same courthouse; flying cross-country for a deposition on a matter and simultaneously working on a brief for another client; and using research conducted for one client to the benefit of representation of another client.  The Formal Opinion quotes the comment to Model Rule 1.2 to the effect that the scope of services may be limited by agreement.  The Formal Opinion then answers the three questions:  a lawyer appearing on three cases may not bill for all the time associated with travel and attendance to all three clients; a lawyer may not bill for travel and preparation of a motion;[ii] and use of recycled pleadings does not permit billing again for the same time spent in the past. 

If Abraham Lincoln made a correct statement about a lawyer’s time and the client has retained a representative to handle a claim that requires travel, then travel time is compensable.  The ABA Formal Opinion assumes without discussion that travel time is compensable just cautions against double billing for the time.  Ethics and Time-Based Billing cites to the ABA Formal Opinion for the proposition that a lawyer may only bill for the time actually spent.  Michael Downey, Ethics of Time-Based Billing, Law Practice Today (ABA Law Practice Management Section 2006).[iii] 

Some have suggested that the regulatory availability of reimbursement for expenses precludes billing for time.  See 20 C.F.R. § 404.999c.  That regulation discusses the reimbursable travel expenses.  Billing for time and billing for expenses constitute two separate and discrete billable items.  It would constitute an unreasonable exercise of billing discretion to charge the client for expenses which the Social Security Administration has promised to pay by binding regulation.  But expenses for gasoline and depreciation of a private vehicle certainly constitute a subject for reimbursement, the vehicle and its consumables do not constitute the lawyer’s stock in trade; his time constitutes his stock in trade.  Lincoln. 

A representative can and should charge for reasonable travel time associated with representation of a claimant.  Claimants have an interest in retaining the representative of his/her choice without regard to the agency's ability to constrain that choice by depriving that person of the liberty to compensate the representative for all the time associated with that representation.  No ethical limitation exists to preclude the claimant form making that choice or from the representative to request compensation for the time expended. 

This takes on greater importance where the claimant and the representative never contemplate compensation for any particular allotment of time.  The claimant contracts with the representative to compensate out of a specific percentage of past due benefits.  While the amount of time expended constitutes a regulatory factor, that regulatory factor is never dispositive of the eight factors listed.[iv] 

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[i] Effective February 1, 2002, the Commissioner increased the fee cap to $5,300.  Effective June 22, 2009, the Commissioner increased the fee cap to $6,000.  See GN 03940.003.  ODAR sometimes suggests that it is not bound by POMS.  It is a factual resource regardless of the wisdom of advocating an agency publication has the net effect of deluding the public about what is and is not agency policy. 

[ii] The Formal Opinion appears to countenance watching a movie on the airplane, a purely personal endeavor.  This author submits that personal departure precludes billing for that time because the lawyer could review and re-review the file and other papers related to the client’s interests during a plane flight. 

[iii] Available at http://apps.americanbar.org/lpm/lpt/articles/mgt01064.html. 

[iv]  They are: (1) the purpose of the program; (2) services provided; (3) complexity of the case; (4) level of skill and competence required in providing the services;  (5) amount of time spent on the case; (6) results the representative achieved; (7) level(s) in the administrative process; and, (8) amount of the fee requested.  20 C.F.R. §§ 404.1725(b)(1) and 416.1525(b)(1).   HALLEX I-1-2-57.

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.

It Really is Time to Object to Vocational Experts Giving Numbers Testimony -- Always

This is the body of a letter sent to the Administrative Law Judge objecting to the intent to ask a vocational expert questions about job numbers.  I use it in all cases where the notice of hearing from the Office of Disability Adjudication and Review states that a vocational expert will appear.  Copy it and paste it into your word processing program, then use it as you professionally see fit.

 

The notice of hearing in this matter provides for the presence of a vocational expert.  This letter serves to set forth the objection to the vocational expert’s identification of job numbers in the national economy, as defined by statute, without providing a basis for administrative notice. 

The current practice of adducing numbers of jobs evidence constitutes a request for a statement of the numbers of jobs.  The current prevailing practice violates the regulations.  The Commissioner takes administrative notice of the number of jobs from reliable governmental and non-governmental sources.  20 C.F.R. §§ 404.1566(d); 416.966(d).  Those subsections provide:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;

(2) County Business Patterns, published by the Bureau of the Census;

(3) Census Reports, also published by the Bureau of the Census;

(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and

(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

Completely absent from this list the “vocational experts.”  Subsection (e) provides for the use of vocational experts to identify specific occupations, transferable skills, and similarly complex issues.  The existence of a number of jobs in the regional economy or several regions of the country is a matter of statistical fact that does not vary by the name of the person called.  The public interest in the uniform application of a complex administrative scheme of adjudication requires that the Commissioner fulfill the legal promise articulated in the regulations.  The agency must take administrative notice of job numbers data, not the unsupported word of someone with no statistical analysis background. 

The proper methodology described by the regulations requires administrative notice.  How an occupation gets performed falls within the ambit of the vocational expert’s knowledge.  HALLEX II-1-9-28.  All of the provisions regarding administrative notice of job data permit the agency to start with notice and deviate for persuasive reasons.  HALLEX II-1-4-23,  HALLEX II-1-6-23, HALLEX II-1-8-26, and HALLEX II-1-10-24.  This principle is found in a binding pronouncement.  See Social Security Ruling 00-4p (regarding the DOT, listed in 20 C.F.R. §§ 404.1566(d)(1); 416.966(d)(1)). 

 Two published sources of job numbers data form the cornerstone of the subject of administrative notice for the numbers of jobs.  Those are the County Business Patterns (CBP) and Bureau of Labor Statistics (BLS).  CBP publishes job numbers data by industry using North American Industry Classification System (NAICS) codes.  See http://www.census.gov/econ/cbp/overview.htm.  The Bureau of Labor Statistics (BLS) provides job numbers data by occupational category using the Standard Occupational Classification (SOC) system.  See http://www.bls.gov/soc/.  The label SOC or OES are interchangeable and refer to the same data sets.  See http://www.bls.gov/oes/current/_stru.htm. 

Because the Commissioner takes administrative notice of the numbers of jobs information from both the County Business Patterns and the Bureau of Labor Statistics, the proper methodology requires cross-indexing that job numbers information.  It is not hard to do.  The BLS Occupational Employment Statistics and the OES Query System provide the data.  The vocational expert need only provide:

1.       The statement of the SOC group for a particular DOT code;

2.      The identification of the NAICS codes for the industries in which that occupation exists;

3.      A statement of the number of other DOT codes that co-exist at that intersection; and

4.      How the existence of those other DOT codes at the intersection of the SOC group and the NAICS code affect the calculation of the numbers of jobs. 

An example helps.  Assume the vocational expert identifies an occupation classified as a production worker, all other.  Assume a plastic roller, DOT code 690.685-498.  This occupation falls into production worker, all other, SOC group 51-9199, along with over 1,500 other DOT codes.  If the vocational expert stated that the occupation existed in the Plastic Product Manufacturing industry, that would mean NAICS code 326100.  According to the BLS, the intersection of the SOC group and the NAICS code represents 5,200 jobs in the nation as of May 2012. 

The BLS states that production workers represent 1.02% of the workers within that industry.  CBP states that the industry 32600 and its subparts represented 559,991 jobs in the nation as of March 2011.  Applying the BLS percent of total employment to the CBP statement of the job size of the industry leads to an estimate of 5,712 jobs.  That industry employed 46,105 people in California as of March 12, 2012.  Total employment of production workers in California in the plastic product manufacturing industry represented 471 jobs total at all exertional and skill levels. 

Under the HALLEX provisions and using Social Security Ruling 00-4p by analogy, a vocational expert can deviate upward or downward from the BLS or CBP estimates of the numbers of jobs for a persuasive basis.  That would necessarily include a statement of the other codes within that intersection.  Aggregation would require a downward estimate of the number of jobs. 
 
If and when a vocational expert states that there are 218,740 jobs in a single occupation as a production worker, that witness gives testimony that is wholly unreliable.  There are too many DOT codes within SOC group 51-9199 for that to be entertainable much less true.  Of the 1,526 DOT codes in SOC group 51-9199, fully 869 are skilled or semi-skilled occupations.  Thirty-nine that are unskilled require very heavy or heavy exertion.  One hundred seventy six unskilled production worker occupations are classified as requiring medium exertion.  Almost a quarter of the unskilled light occupational base exist within this classification, i.e. 390 occupations.  The sedentary unskilled occupational base finds 52 of its members in SOC group 51-9199. 

The Social Security Administration should demand the basis for administrative notice of jobs numbers data.  That basis for administrative notice includes the SOC group, the NAICS code(s), and a statement of the number of DOT codes within that intersection.  The vocational expert should explain how he/she accounted for the other DOT codes in making the final estimate of the number of jobs.  The fundamental basis of judicial notice requires that the Court receive the necessary information so that the fact can be accurately and readily ascertained.  See generally FRE Rule 201(b) and (c). 

Administrative notice allows the Social Security Administration to establish the existence of facts without resorting to formal methods of proof.  See 2 KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 10.6, at 150 (3rd ed. 1994); 4JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 25.01, at 2 (1993). “A court or an agency can make a finding of fact without evidentiary support by taking judicial or official notice, respectively, of that fact.” 2 id.; see MCCORMICK ON EVIDENCE § 359, at 1028-33 (Edward W. Cleary ed., 3rd ed. 1984). With administrative notice, an administrative law judge “bypasses the normal process of proof and relies upon facts and opinions not supported by evidence ‘on the record.’” Id. at 1028.

EAJA Offset

The recurring question of the reduction of fee awards under 42 U.S.C. §§ 406(a); 1382(d)(2) (hereafter referred to generically as “406(a)”) by the amounts awarded under 28 U.S.C. § 2412.  The question arises where counsel has submitted a fee petition or the Social Security Administration reviews the reasonableness of the fees on a review under the expedited fee process on request by the claimant, counsel, or own timely own motion.  The result is the same regardless of the scenario under which counsel seeks fees under sec. 406(a) after having first received fees under sec. 2412. 

 The uncodified portion of the EAJA provides the short answer to the question.  The Savings Provisions of Section 206 of Pub.L. 96-481, as amended by Pub.L. 99-80, § 3, Aug. 5, 1985, 99 Stat. 186, provide that:

“(b) Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) [section 406(b) of Title 42, The Public Health and Welfare] shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code [subsec. (d) of this section].  Section 206(b)(2) of the Social Security Act [section 406(b)(2) of Title 42] shall not apply with respect to any such award but only if, where the claimant's attorney receives fees for the same work under both section 206(b) of that Act [section 406(b) of Title 42] and section 2412(d) of title 28, United States Code [subsec. (d) of this section], the claimant's attorney refunds to the claimant the amount of the smaller fee.”

 (Emphasis added); see also HALLEX I-1-2-91(A).[i]  This uncodified provision articulates the intent of Congress that counsel not receive and keep both EAJA and fees under 42 U.S.C. § 406(b) “for the same work” and if counsel receives both fees then counsel shall refund the smaller fee to the claimant. 

In a case remanded under 42 U.S.C. § 405(g)(sentence 4), the court enters judgment and counsel seeks EAJA fees immediately.  The court does not retain jurisdiction and the time invested on remand is not part of the court case.  See generally Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).  Time invested by counsel either before the first exhaustion of administrative remedies or after the remand from the court are not part of the court case and are not “the same work.”  See also HALLEX I-1-2-91(B)(1). 

There are times when the EAJA fee can and should offset a fee payable under 42 U.S.C. § 406(a).  Those circumstances occur when the fee is “for the same work.”  The court retains jurisdiction and work performed on remand is part and parcel of the court case when the court remands pursuant to 42 U.S.C. § 405(g)(sentence 6).  Sullivanv. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989); Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 2162-63, 115 L.Ed.2d 78 (1991); Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).  If and only if the court has retained jurisdiction over the proceedings on remand and awards fees pursuant to the EAJA for that time does the offset of the EAJA fee award from the fees payable for that time expended before the Social Security Administration arise.[ii] 

The policy concerns are appropriate.  The Congressional purpose in enacting the EAJA is patent.  Congress sought to offset the costs of litigating against the government where the United States could not prove that its position was substantially justified.  Scarboroughv. Principi, 541 U.S. 401, 124 S.Ct. 1856, 1861, 158 L.Ed.2d 674 (2004) citing H.R.Rep. No. 99-120, p. 4; see also POMS GN 03990.001.  In some circumstances, the EAJA fee may be the entire fee that counsel can receive.  See e.g. McGraw v. Barnhart, 370 F.Supp.2d 1141 (N.D. Okla. 2005) rev’d on other grounds 450 F.3d 493 (10th Cir. 2006).  The district court in McGraw illustrates the proposition that in many cases the EAJA fee is the only fee for the court work.  This can arise in small benefit level cases (e.g. SSI with income by a non-eligible spouse), closed period (including cases where the back benefit pool is cut off by the claimant getting benefits on a subsequent application with or without the encouragement or assistance of counsel), or other circumstances.  Reducing the fee payable for time spent before the Social Security Administration by the amount of the fee received by counsel before the courts defeats the intent of Congress that counsel only get paid once for each hour of work.  Reducing the administrative award by the court fees means one set of hours did not get paid, at all. 

It is a true observation that the claimant gets no true fee relief by the presence of the EAJA award not offsetting an administrative fee.  Where the administrative fee exhausts the 25% withheld for that purpose, the question raised is whether counsel can keep the entire EAJA fee for court work and the entire 25% for the administrative work.  The claimant has received some fee relief insofar as counsel had any incentive to take a case to the district court.  If it were not for the presence of EAJA fees, many cases would become unviable.  This would violate the intent of Congress that people have the resources to litigate against government action that is not substantially justified.  Therefore, allowing counsel to retain an EAJA fee and receive fully reasonable compensation for different hours expended before the Social Security Administration is correct.

Finally, any practice by an ALJ, ODAR, Region, or SSA generally to reduce the amount of the sec. 406(a) fees by the amount of the EAJA fees for different time means that counsel that seeks fees both before the Social Security Administration and before the courts for representation of a claimant will have the amount of the EAJA fees offset twice.  The courts will offset the amount of a fee payable under 42 U.S.C. § 406(b) by the amount of the EAJA fee.  Scarborough, 124 S.Ct. at 1862 fn. 2.  It is the court that is obligated not to offset the EAJA fee against the sec. 406(b) fee but to order counsel to reimburse the smaller of the two fees for time paid for twice. 

In light of the uncodified portion of the EAJA, the intent of Congress, and the possibility that in many cases the court will order the reimbursement against a fee payable under sec. 406(b), it is not appropriate to reduce, credit, offset, or otherwise take into account the amount of a prior EAJA award in setting the fees payable under sec. 406(a). 

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[i] This section “provides that when a representative received fees for the same work under both section 206(b) of the Social Security Act and EAJA, the representative must refund to the claimant the amount of the smaller fee.”  The “NOTE” in the following paragraph ignores the operative phrase “for the same work.”  POMS GN 03990.040 clarifies the “for the same work” requirement for offset.  See also POMS SI 00830.100(B)(5). 

[ii] A fair question, beyond the pale of this position paper, is whether time expended by counsel after remand from the court under sentence 6 should be the focus of fees under sec. 406(a) or 406(b). 

The Eastern District of California - Fresno Division

The Law Offices of Lawrence D. Rohlfing has long had a presence in the Eastern Disrrict of California.  The representation of Social Security disability claimants stretches back about 20 years.  The office has never had a strong presence at the adminstrative level, just handling court cases for other attorneys and representatives whose clients have suffered a denial of benefits.  These cases get to the District Court after administrative hearings in Fresno and Bakersfield, all handled by the Fresno Office of Disability Adjudication and Review.

The problems start at the ODAR level.  For the fiscal year ending September 2011, the hearing office had an average allowance of 49.9%.  One very experienced judge pays 29.7% of the cases that he hears; another experience ALJ pays 38.1% of the cases that he hears.  Compare these numbers to the average allowance rate for every ALJ in the Social Security system of 62.4% and the problems begin to crystallize.  The Fresno ODAR is almost one standard deviation from the mean not as a rogue ALJ but as an office.  There are worse offices in the nation but Fresno ODAR is a bad place to have a Social Security disabiliity claim heard.  A claim has a 20% lower chance of getting paid in Fresno than in a hypothetical average ODAR. 

These cases that get denied end up at the Appeals Council.  The AC grants review in about 25% of the cases that it hears.  Some of the 75% that the AC denies end up in federal court.  The United States District Court for the Eastern District of California, Fresno Division, hears the cases that the Fresno ODAR and the AC deny. 

I do not have any statistics but my experience informs me that the Fresno District Court changed in the last 10 years.  It has become more apt to affirm bad decisions of the Commissioner of Social Security.  Perhaps this arises from a cultural shift, perhaps from an incredible case overload in cases of all types, or some other reason that escapes by narrow view.  The message in the past 5 years form the Fresno Division has been clear, it is not a claimant friendly forum. 

So how do we can we possiby detect a shift in the decisions of the Fresno District Court, principally by the Magistrate Judges in Fresno?  The Ninth Circuit Court of Appeals reviews the decisions of the District Court.  The Ninth Circuit "publishes" all of its opinions, those certified for publication in the official reports and deemed precedential and those that get classified as memorandum dispositions that lack the force of precedence.  The cases decided after November 10, 2009, are searchable by court of origin and parties.  The Ninth Circuit calls the Fresno Division the "Fresno District Court."  The Fresno District Court classifies Social Security cases as suing the Commissioner of Social Security with the abbreviation of either CSS or CSSA. 

In the last 2 years, the Ninth Circuit decided 11 cases coming out of the Fresno District Court.  It reversed in 6 and affirmed in 5.  One of the 5 affirmances was a pro per.  So in attorney represented cases, the Fresno District Court has found itself reversed in 60% of the cases.  The average reversal rate for any District Court group of decision is less than 20%.  The reversal rate over a two year period forms the basis for a real concern.  Not all deserving cases get appealed for legal, logistical, or business reasons.  If the Fresno District Court gets reversed 6 out of 10 times in attorney represented cases, experience teaches that there are other cases that suffered "affirmance of the Commissioner's decision" that did not get appealed to the Ninth Circuit. 

The system needs to work.  The public needs to have confidence that the system works.  The Social Security disability program already has the appearance of a lottery with benefits dependent on the identity of the decision-maker rather than the facts of the cases.  When an ODAR gets well below average in allowances in a program that is based on the presenced of jobs in the economy in a region bereft of jobs, then the District Court must provide real and meaningful review that holds the feet of the administration to the fire.  Administrative discretion cannot replace the public expectation of evenhanded administration of justice. 

Your mileage may vary.