Subsequent Applications -- Just Do It

For representatives that have clients whose cases go to federal court, the filing of a subsequent application can cause problems with the fees charged.  This is true whether the representative is also a lawyer that handles the case in federal court while pursuing a subsequent claim; the representative refers out the federal court claim and represents the claimant on the subsequent claim; or refers the client for the federal court claim and the subsequent claim to an attorney. 

1.  The Subsequent Claim

First things first, representatives have a duty to advise their clients on the ability to file a new claim with Social Security while the other claim is in federal court.  A grant of a subsequent claim cuts off the accrual of past due benefits for fees.  That works to the net benefit of the claimant and the net loss of the attorney.  Attorneys "shall consult with the client as to the means by which they are to be pursued."  ABA Model Rule 1.2(a).  This fits with the obligation to provide competent representation.  POMS GN 03970.010.    Absent an expired "date last insured" for Title II benefits, the only reason to endure the risk of litigation without putting all the eggs in one basket is to protect the prospective fee interests of the representative(s).  Attorneys must advise their clients of the right and effects of a subsequent claim under the ABA Model Rule.  See also California Rules of Professional Conduct Rule 3-500.

Most claimants will take the option to spread the risk of loss of past and future benefits and file a new claim.  The claimant can do so with or without representation.  If the claimant appoints a representative as to that claim and the prosecution of that claim results in the payment of benefits, that representative may charge and receive a fee under the fee agreement process. 

2.  The Court Action

On average, the courts grant relief in under half of the claims for relief presented.  Successful claimants may receive fee relief under the Equal Access to Justice Act.  Attorneys may take a lien or accept an assignment in those EAJA fees.  Attorneys may receive fees from the past due benefits, up to 25% of the benefits that result from the action for review.  The most common form of relief in a court proceeding to review the final decision of the Commissioner is a remand for further proceedings. 

3.  Consolidation

If the claimant receives a remand order from the court with the subsequent claim pending, SSA may consolidate the two claims for a single decision.  HALLEX I-1-10-25.  Two claims under the same title with abutting or overlapping periods of time present a single question of whether and when disability exists.  Two claims under different titles with overlapping periods of time present issues of collateral estoppel as to the whether and when disability exists to the extent of temporal congruence.  Two applications that do no overlap or abut the periods of time should not get consolidated. 

If the claimant receives a remand order from the court with a subsequent claim already in pay status, SSA may consider reopening and revising that grant of benefits.  Reopening puts the onus of quick action on the agency to resolve the matter diligently.  Carillo-Yeras v. Astrue.

If the claimant receives a remand order from the court with a subsequent claim already in pay status, SSA may affirm the grant of benefits on the subsequent application.  The claimant can proceed to decision on remand without concern that the agency will disturb the current pay status.  This is the best case scenario and more likely now than it was prior to SSR 11-1p. 

4.  The Potential Downside

The filing of a subsequent claim with a prior claim pending in federal court continues the development of the medical file.  SSA, through the state agency, will collect records to develop the subsequent claim and may send the claimant out for consultative examinations.  The presence of a subsequent claim permits the representative to have access to a drop point for newly developed medical evidence.  Those are positive points.  So is there a downside?

The potential downside to filing a new claim for benefits is that the state agency will collect records and possibly send the claimant out for new examinations while developing new opinion evidence from the state agency physicians.  New evidence may cut both ways.  With the 2015 revision to the regulations requiring the claimant and the representative to submit all evidence that relates to the claim, the perception of a way to avoid new harmful evidence takes on an illusory characteristic. 

The ALJ also has the right and perhaps the responsibility to send the claimant out for new consultative examinations on remand.  The remand refloats the application and the ALJ must adjudicate through the date last insured to deny the claim and through the date of decision to allow the claim or for an unexpired date last insured.  That makes evading the subsequent application to prevent development of other non-treating medical evidence a mirage. 

5.  Should the Claimant File a Subsequent Application While Pursuing a Federal Court Action?

For SSI - yes.
For DIB - yes if the claimant has an unexpired date last insured beyond the date of the administrative decision. 

Just do it. 

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.

McLeod or Chaudhry -- the Duty to Develop

In the space of 9 months, I note that the Ninth Circuit has widened the gap in the panel determinations on the duty to develop the record on the question of a VA determination of disability. 

McLeod v. Astrue went through three iterations before becoming law of the Circuit.  The final decision sets out the facts of McCleod professing ignorance of whether he had a VA disability determination.  He had a lay representative before SSA, an attorney before the District Court, and Paul Eaglin in the Court of Appeals.  The Cour considered the presence of a lay representative the same as unrepresented in triggering a heightened duty to be "especially diligent" in developing the record.  In the final analysis, the ALJ had to do more to get the VA disability rating because of its probative impact on the SSA disability determination. 

Chaudhry v. Astrue found its way into the books on August 10, 2012.  Jeffrey Baird handled the case on appeal but not before the SSA.  Chaudhry testified that he received a 100% disaiblity rating from the VA.  The attorney reprenting Chaudhry argued to the ALJ that the claimant did in fact have a 100% disaiblity rating.  What the record did contain is a 30% headackes, 30% neck impairment, 20% back impairment, 30% depression, and 20% narcolepsy.  The VA increased the rating for depression to 50% as of 2006, well before the case went to hearing.  Don't add the numbers together, that isn't how the process works.  Suffice it to say that the ALJ added the numbers together using his understanding of the VA methodology instead of the correct methodology that would have added up to 100%.  Chaudhry argued through counsel that the ALJ should have gotten the final rating from the VA himself since the attorney at the hearing was wrong about the presence of the 100% finding in the file.  Two problems -- the final rating did not wind its way into the record and the person making the representation was an attorney. 

And that is the problem.  Everyone in the room knows that the ALJ blew it.  He added the numbers wrong and the rating really is 100%.  The question is whether the Court will place its stamp of approval on a decision that the public knows is palpably and unmistakeably wrong.  When the Court rushes in to affirm the wrong decision because what the ALJ did falls within the range of wrong but reasonable, the Court degrades the public confidence in both the SSA and the Court. 

This is not a situation where reasonable minds could differ.  This case raises the specter of an easily verifiable concrete fact that is either right or wrong.  Discretion permits an ALJ to have his own conclusions, but not his own facts on which no reasonable person could differ.  In Chaudhry, we have a young man that served the United States, after leaving his native Pakistan, honorably in the military only to have an ALJ's silent speed torpedo his entitlement to disability benefits.  Certainly Chaudhry got his VA benefits and if still insured for disability benefits can get SSDI for future periods.  But that isn't the promise that we as a nation made to our young men and women that served in the armed forces especially an immigrant that probably served against the cultural norm from which he emerged.  What we promised was that if he sustained injury during the course of his military service that he would receive a VA benefit for any compensable disability and if the disability precluded substantial gainful activity that he would receive SSDI to permit him some semblance of a standard of living. 

The Court should get out of the business of excusing bad decisions by the SSA under the guise of permitting a wide range of discretion.  The Court should get into the business of narrowing the range of discretion so that claimants like Chaudhry have their cases determined based on the facts of the case instead of the lottery of the identity of the individual ALJ.  Someone pass a note to the Court -- "there are administrative law judges that make mistakes and the Court is the last protection against gross error."  This case involves the grotesque error of harming our servicemen and women. 

Roberts v. Commissioner of SSA

Today the Ninth Circuit decided Roberts v. Commissioner.  Another disability claim by a person claiming disability that went before an Administrative Law Judge without the benefit of counsel.  Once a person gets to the hearing stage, the default should be to hire an attorney to handle the job.  See Why Hire and SSDI Attorney. 

The big deal is that the Social Security Administration tells its ALJs that they must get a waiver signed by the claimant for benefits if that person wants to proceed without an attorney.  The form is:

I understand my right to representation at the hearing. I voluntarily waive this right, and I request to proceed without a representative. I also acknowledge that I received a list of organizations that provide legal services prior to receiving the Notice of Hearing.

As the Court framed it:

ALJ “should ensure on the record” that an unrepresented claimant “has been properly advised of the right to representation and . . . is capable of making an informed choice about representation,” and goes on to list several questions that an ALJ may wish to ask the claimant in order to accomplish this. HALLEX I-2-6-52.

If the ALJ didn't do what SSA told the ALJ to do, why should the Court simply let the agency off the hook?  Reverse and send the case back for a hearing with the Roberts represented by an attorney. 

But this is why Lockwood was so important.  Either the agency is bound by its own rules and procedures or SSA can simply disregard what it tells the agency and the world how it handles the largest adjudicative body in the world.  The statute (42 USC sec. 406(c)) is pretty clear:

The Commissioner of Social Security shall notify each claimant in writing, together with the notice to such claimant of an adverse determination, of the options for obtaining attorneys to represent individuals in presenting their cases before the Commissioner of Social Security. Such notification shall also advise the claimant of the availability to qualifying claimants of legal services organizations which provide legal services free of charge.

The government assumes that we read every piece of paper that slides across the inbox of life.  More importantly, the government assumes that we understand every piece of paper.  Except SSA recognizes that this is not necessarily true.  SSA knows that claimants for disablity either do not read or do not understand every piece of paper that they are charged with reading.  Fusing together that recognition of reality with the literal words of the statute, the Court should have found that the ALJ in this case violated the spirit of the statutory text even if he complied with the letter of the law. 

That seems to have been lost on this generation.  The intent of the statute seems to have gone away to be replaced by the requirement that Congress imagine every consequence and every problem.  I won't hold my breath waiting for Congress to gain that kind of prescience.  The regulation (20 CFR sec. 404.1706) tells us that:

We will also tell you that a legal services organization may provide you with legal representation free of charge if you satisfy the qualifying requirements applicable to that organization.

And there it is.  A promise to tell us more than the written word contained in a notice with a raft of other papers.  What does "we will also tell you" mean?  According to HALLEX I-2-6-52, it means that an ALJ will tell "us" before starting an administrative hearing.