Judge Says He Has No Discretion to Roll Back Three Months

Yep, that is what the ALJ told me in a pre-hearing conference.  I was taken aback.  That isn't my recollection and I have a grasp of the regulations.   Client turned 55 some eight years ago, three months after the date last insured.  I expect a grid finding on the remote onset at the DLI so the judge's statement leaves me scratching my head.  My client was in the waiting room reviewing her E exhibit statements in this USDC remand. I pull out my Google Pixel phone and I do what every representative should do, google it. 

Tying it in:  Social Security Ruling ... no, that isn't right, it is in HALLEX.  Start over:  HALLEX borderline age.  Boom  Feeling like I might have missed something so I verbally dance while reading quickly on the first entry:  HALLEX I-2-2-42.  "Judge, the HALLEX says you have discretion at a few months before the age change to find disability as of the date last insured." 

Judge asks for the cite.  HALLEX I-2-2-42 paragraph B, 1, second bullet.  "You have it backwards counsel."  Deep breath.  Just read the pertinent parts out loud and the judge will get it:

ALJs will assess whether the claimant reaches or will reach the next higher age category within a few days to a few months after the:
 . Date last insured;

Judge reads along.  "Oh, I read that wrong before.  I stand corrected.  Go get your client." 

Win. 

Serendipity for the day:  HALLEX refers to POMS DI 25015.006 for additional guidance on the borderline age situation.  Need to remember that the next time an ALJ tells me that the corps is not bound by POMS.  

Lesson for the day, the ALJ will get it absolutely legally wrong.  Don't back down; correct the mistake.  Use your smartphone or other device.  It is impossible to anticipate every wrong thing a judicial officer or witness might say.  It is our obligation to correct on the fly and dance like a person possessed as we figure it out. 

Lockwood is Dead, Long Live HALLEX

This goes in the category of "I told you so." 

Lockwood v. Commissioner Soc. Sec. Admin.  stands for the proposition that an ALJ need not discuss why she didn't use a higher age category in a borderline age situation.  The court rejected use of POMS  DI 25015.005(B)(4) as applying to the burden of explaining the decision to use the chronological age -- because it wasn't in force when the ALJ decided the case; because it conflicted with HALLEX II-3-5-2; and because the courts don't enforce either HALLEX or POMS. 

We know that when the agency tells us what a regulation means, that interpretation of the regulation is controlling unless plainly erroneous or inconsistent with the regulation.  Washington State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler ("While [POMS]administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect."  Keffeler continues:

In short, the Commissioner's interpretation of her own regulations is eminently sensible and should have been given deference under Auer v. Robbins. 

Auer gives controlling deference to an interpretation of a regulation unless plainly erroneous or inconsistent with the regulation.  We eliminate strike three against POMS; let's look at strikes one and two. 

Strike two and inconsistency with HALLEX falls today.  HALLEX I-2-2-42 states clearly that the ALJ will explain why she used the chronological age instead of the higher age category whenever the borderline age situation occurs.  HALLEX and POMS now agree, an explanation is due. 

Strike one and applying the interpretation to the case the court has before it -- IS NOT A RETROACTIVE PROBLEM.  In re Schooner Peggy holds that the court applies the law in effect at the time of decision, not the law in effect at the time of the act.  The Supreme Court grants an exception to prevent manifest injustice.  The ALJ is not a party to court proceedings and it is not unjust to have administrative decisions get decided according to the law as we now understand it. 

Lockwood is dead.  Long live HALLEX ... and POMS too. 

 

Beltran v. Astrue

On May 2, 2012, the Ninth Circuit decided Beltran v. Astrue.  Attorneys that handle Social Security disability cases consider the issue of signficant number of jobs (SNOJ) in the economy to constitute the Holy Grail.  Pursued and promised but never quite attained.  This case is a baby step closer to that Holy Grail. 

As the third attorney on the case, I had some reluctance to pursue the SNOJ issue.  This nuanced issue typically requires finesse and a perfect record.  The record had some traps but overall a tip in favor of pursuit.  The ALJ in the case denied Beltran disability insurance benefits as of her date last insured.  The ALJ reasoned that the ability to perform 135 jobs in a single sedentary occupation represented a large enough occupational base to expect the vocational adjustment.  The ALJ granted Beltran SSI benefits ... beginning 6 days after the expiration of her date last insured for SSDIB benefits. 

SSI carries with it a benefit tied to financial status of income and resources and grants the beneficiary Medi-Cal coverage.  Medi-Cal grants access to emergency rooms and public clinics and hospitals.  The private medical providers do not treat Medi-Cal recipients. 

SSDIB carries with it a benefit that does not depend on household income and resources and grants the beneficiary Medicare coverage after 2 years of pay status.  Medicare grants access to doctors and hospitials.  The private medical providers do treat Medicare recipients.  For Beltran, pursuing the case had real importance to her in terms of monthly benefit and access to medical care. 

The case did have a couple of problems.  Had I represented Beltran at the District Court level, I would have included a borderline age situation.  Lockwood v. Astrue had not been decided and that decision would have mired the presentation of Beltran to a crawl.  Serendipity saved me from pressing an issue that probably would have won at the District Court level but provided Beltran with no additional past due benefits.  What I perceived as an error turned out to bring good fortune to the case. 

And the real reason to blog about this case ... the strident dissent from Judge Ikuta.  In April, the Ninth Circuit issued a decision in Molina v. Astrue.  That decision broadened the use of the harmless error doctrine.  The author of that opinion, Judge Ikuta.  The majority opinion in Molina and the dissent in Beltran paints Judge Ikuta into the corner of apologist for bad decisions from the Social Security Administration.  Harmless error means that the ALJ decision contains error.  Excusing error as harmless and expanding the use of that doctrine means that the adadge "close enough for government work" continues to have vitality. 

Judge Ikuta complains that the Court usurps the perogative of the agency to make fact findings based on the slimmest of evidence.  Healthcare Employees Union v. NLRB rejected the "rational basis" test that the NLRB sought in review of agency decisions.  The Ninth Circuit, like all courts, reviews decisions of agencies on the record as a whole.  During the expansion of agency power in the last 80 years, the courts have never abdicated the role of making sure that any agency decision make sense.  In other words, the fact that there exists a rational discernable basis for a decision has never and should never rescue the decision from the probing eye of the court. 

In footnote 1 of the dissent, Judge Ikuta complains that alcohol abuse caused some of the problems and limitations found by the ALJ to afflict Beltran.  Judge Ikuta states that problems caused by a history of alcohol abuse don't count in the disability analysis.  First, the ALJ already backed out ethanol from the equation in finding Beltran eligible for benefits 6 days later.  Second, the statute and the regulations remove benefit eligibility if the disabling limitations would evaporate with abstinence.  The footnote represents a misstatement of law and fact. 

The statute requires that Beltran and other claimants for benefits have the capacity to perform a signficant number of jobs in the region in which they live or several regions of the country in light of the residucal capacity for work and in consideration of age, education, and work experience.  While it is true that employment practices and openings don't count, that truism pales when the statute requires consideration of age.  The Commissioner's regulations call this the ability to adjust to other work.  For someone aged 50 or over, the ability to perform every single unskilled sedentary job in the nation does not provide a significant enough occupational base.  For a person aged 55 or over, the ability to perform every single unskilled sedentary and light job in the nation does not provide a significant enough occupational base.  Beltran was 49 years, 11 months, and 3 weeks old at the time that her insured status expired.  The ALJ granted SSI benefits a week later and found that 1 occupation representing at most 135 jobs represented a signficant number.  That kind of sophist analysis deserves the searching scrutiny of the court to second guess the decisions of an ALJ.

Public confidence in a system of administrative adjudication demands better and the majority got it right in holding SSA's feet to the fire.