A Dangerous Trend -- Re-Writing the ALJ Decision

Unpublished memoranda -- yawn, they are not precedential.  The only parties that care are the parties to that memorandum and onlookers waiting for trends to develop.  Roy v. Colvin is such a memorandum.

The court found that the ALJ erred in rejecting the opinions of Dr. Eisenhauer.  The question is always materiality -- would it have mattered.  Under Stout v. Commissioner, the thought experiment assumes that the improperly rejected evidence is true and then asks would that credited evidence change the outcome.  Roy finds that the ALJ could have rejected the findings of Dr. Eisenhauer because those findings were brief and conclusory.  But the ALJ never found Dr. Eisenhauer's opinions to be brief and conclusory.  The Ninth Circuit said that.  Neither the District Court before it nor the Ninth Circuit on de novo review gets to weigh the facts.  Did the ALJ commit legal error or did the ALJ make a fact finding lacking the support of substantial evidence?  That is the sole function of the court.

Where the ALJ thinks that the report of a doctor belongs to another person and it turns out the ALJ was wrong and where the ALJ gives no other reasons for rejecting that opinion evidence, the court should NOT re-write the ALJ decision to give a reason that the ALJ did not offer.  "We are constrained to review the reasons that ALJ asserts.  SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)."  Connett v. Barnhart.  The Ninth Circuit lacks the judicial power to add reasons that the ALJ did not articulate.  This stands at the corner of administrative law -- don't excuse a decision because you think this ALJ might have decided it the way that you would because you, the court, are not the fact finder.

Spiva v. Astrue said it best: the government seems "determined to dissolve the Chenery doctrine in an acid of harmless error."

The Ninth Circuit should adopt and follow Spiva lest we all ingest a corrosive acid that gives everyone a jurisprudential ulcer.

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.