Shapiro v. Social Security Administration -- ALJ firing upheld

The Federal Circuit upheld the firing of an Administrative Law Judge for failing to meet productivity requirements.  The case is important because it documents the expectation of the Social Security Administration and the constraints that this puts on claimants seeking benefits.

In 2007, the Chief ALJ told the ALJ corps that the agency expected between 500 and 700 legally sufficient decisions each year.  So let's do the math.  An ALJ has to review the file, conduct the hearing, and give instructions to someone else to write the decision.  The ALJ has to review the decision and sign it.  We can assume that an ALJ takes about five weeks vacation per year and actually sits on the bench only every other week.  We also have holidays to address as well.  That brings us down to perhaps 23 weeks of hearings per year.

If the ALJ hears 20 cases per week, that ALJ will fall short of the productivity goal of 500 dispositions per year.  If the ALJ hears 30 cases per week, the ALJ will almost meet the upper edge of the disposition expectation announced in October 2007.  Assuming 24 hearings in a week and having hearings on four of the five weekdays, the ALJ must have six hearings per day.  That's at best an hour per hearing four days a week, 23 weeks per year to get into the range.

Some cases have relatively simple dispositions.  The ALJ calls a medical expert who testifies that the claimant meets or equals a listed impairment or has a residual functional capacity that calls for application of a favorable grid rule and the case is over in about 15 minutes.  But this does not address the cases on the bubble.

The case on the bubble requires full examination of any medical expert called by the ALJ, full examination of the claimant for benefits including a document by document explanation of any conflict that the ALJ might have perceived in terms of activities of daily living, adequacy of medical treatment, and other reasons that the ALJ might articulate later in an unfavorable decision.  The ALJ will likely have called a vocational expert to testify at the hearing.  That witness will lack any degree or training in statistical analysis and therefore have to make up numbers about the incidence of jobs in the national economy.

Realistically, a full-blown hearing for a case in the bubble where the person has an arguable disability would require a four hour process.  No consistency exists from vocational expert to vocational expert and little consistency exists from ALJ to ALJ.  Can an ALJ have that lengthy of a hearing for any one single case?  In firing ALJ Shapiro, SSA has responded that an ALJ that regularly permits a full due process hearing will likely end up on the short end of the stick.  The agency expects the ALJ to manage the docket and dispose of the cases in the same period of time as the rest of the corps.  An ALJ that wants to provide due process in an administrative hearing on a regular and continuing basis for the half of cases that require that degree of inquiry will never meet the productivity expectations of the agency and find themselves in a disciplinary proceeding.

Harshaw v. Colvin

The Ninth Circuit affirmed in an unpublished memorandum the claim for disability in Harshaw v. Colvin.  The non-precedential memo deserves note because it marks a dangerous and wrong trend.  The court imposed issue exhaustion from the ALJ level.

Harshaw relies on Meanel v. Apfel and Silveira v. Apfel to get to the point of exhaustion and the absence of waiver of the exhaustion rule.  I know a little about those cases -- I was counsel in both. . Meanel has pedestrian pedigree.  She sought to attack vocational expert testimony based on evidence from a private vendor about job numbers; evidence never presented to the agency.  Meanel says "too late."  The claimant had counsel and court is too late.

Silveira had a companion case, Vargas.  Both raised the legal issue of application of the grids to individuals with semi-skilled backgrounds, no transferable skills, and illiterate in English.  Vargas did not raise the issue in the District Court.  Silveira did.  The court found that the legal issue was not waived and reversed in Vargas.

What do either of these cases have to do with Harshaw?  Not much.  Harshaw presented evidence to the ALJ that he suffered from pes planus, PTSD, and a personality disorder.  The record contained the evidence.  In Meanel, the record did not contain the job numbers evidence.  Sound different?  It is.  Expanding Meanel to include not only that the claimant present the evidence but also make a specific argument about the application of that evidence asks too much.  The evidence raises the issues and the ALJ is the inquisitor, not an adversary.  Meanel just doesn't apply, at all.

The district court had the first bite at the apple in Harshaw.  The court relied on two other USDC decisions:

Cisneros v. Colvin,No. 12-cv-0931-BAM, 2013 WL 5375490 at * 9 (E.D. Cal., Sept. 24, 2013) (finding waiver when plaintiff failed to raise the issue of improper past relevant work determination during administrative proceedings); Shaw v. Comm'r of SSA, 2008 U.S. Dist. LEXIS 30170, *20 (N.D. Cal. 2008) (Claimant waived argument challenging past relevant work when he failed to raise that objection at the hearing);

In a typical hearing, the ALJ will ask the vocational expert to characterize the claimant's past relevant work.  The VE's get it wrong because the witness does not have access to the earnings record.  The VE will miss earnings that do not qualify as substantial gainful activity or occurred too long ago to count.  But the claimant has the burden of establishing that s/he cannot perform the past relevant work.  In cases where the VE mischaracterizes the past work and the represented claimant does nothing, then Houston, we have a problem.  That isn't waiver; that is a decision that rests on substantial evidence before the agency at the time of the decision.  Coming up with new evidence or arguments about the true nature of the past work might be too late.

But those aren't the facts of Harshaw.  The claimant alleged that the ALJ missed the other impairments and that those impairments made a difference in the outcome of the case.  Waiver -- no, the evidence was there and the claimant never has a burden to argue the case, just the burden to present the evidence that supports the claim.

The Ninth Circuit memorandum ends with the caveat that the missed impairments did not cause other limitations.  Well, if that is the case, then the waiver discussion is irrelevant.  The court should have issued a one paragraph memorandum, the last paragraph.

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.

Phillips v. Colvin/Commissioner

The Ninth Circuit decided Phillips v. Commissioner on August 18, 2015.  I only occasionally write about unpublished opinions but this was my case and I have unique insight into what happened at the District Court level and before the Ninth Circuit.

The court found that Social Security Ruling 13-2p applied the case despite the fact that the Commissioner published the ruling after the ALJ issued the final decision in this case.  The lawyers for the Commissioner conceded at oral argument that the ruling did not represent a change in the law.

SSR 13-2p overrules Parra v. Astrue.   The claimant for benefits need not prove that absence will leave the drug addict or alcoholic still disabled.  The claimant for benefits just needs to prove that it is unclear whether abstinence will lead to recovery or leave the person in a disabled state.

In Phillips v. Astrue, the Commissioner argued that addiction to prescription medication was no different than addiction to street drugs or alcohol.  The District Court in the Eastern District of Fresno bought that argument.  Twice the District Court stated that Phillips was mistaken about the law, because the Commissioner did not concede what she conceded at the Ninth Circuit Court of Appeals, that addiction to prescription medication is fundamentally different than addiction to non-prescribed street drugs or alcohol.

Taking the representations at oral argument before the Ninth Circuit at face value, the representations made before the District Court had no legal support.  The position taken that SSR 13-2p did not change the law makes the argument at the District Court disingenuous.  The government cannot have it both ways.

But that is the role of the government lawyers in federal court defending Administrative Law Judge decisions denying benefits.  The government lawyers do not defend agency policy, the regulations, the rulings, HALLEX, or POMS.   Instead, the government lawyers defend the discretion of the ALJ to do whatever the ALJ wants to do with a particular set of facts.  The agency defense discretion over everything.  Only when the ALJ makes egregious omissions from a decision will the agency seek remand.  But misconstrue the facts and the law, Phillips v. Astrue and the litigation before the Ninth Circuit tells us that the agency defends that.

Young v. Colvin

In an unpublished memorandum disposition, the Ninth Circuit decided Young v. Colvin on July 21, 2015.  On the last line of the mem-dis, the court writes:

And a hotel housekeeper’s occasional interaction with hotel guests does not amount to more than minimal or superficial contact with the public. See DOT 369.687-018, 1991 WL 673072; DOT 323.687-014, 1991 WL 672783. 

Really?    The DOT does not say that and to make that finding without evidence is shocking.

DOT code 369.687-018 is a folder in the laundry and garment industries.  It is not a hotel housekeeper.

DOT code 323.687-014 is the cleaner, housekeeping occupation.  According to the DOT, the worker must:

Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title. May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned as Sleeping Room Cleaner (hotel & rest.). 

Personal assistance to patrons -- minimal and superficial, where does the court fathom that concept?  Words have meaning and personal does too.  The dictionary definition:

Full Definition of PERSONAL1
:  of, relating to, or affecting a particular person :  private, individual <personal ambition><personal financial gain>2
a :  done in person without the intervention of another; also :  proceeding from a single person

b :  carried on between individuals directly <a personal interview>3
:  relating to the person or body4
:  relating to an individual or an individual's character, conduct, motives, or private affairs often in an offensive manner <a personal insult>5
a :  being rational and self-conscious <personal, responsive government is still possible — John Fischer>

b :  having the qualities of a person rather than a thing or abstraction <a personal devil>6
:  of, relating to, or constituting personal property <a personal estate>7
:  denoting grammatical person8
:  intended for private use or use by one person <a personal stereo>

Which of the definitions of personal does the court use in deeming the work of a housekeeping cleaner devoid of more than minimal and superficial?

Sometimes a memorandum disposition is a reaction to bad facts, bad lawyering, or a deep conviction that the claimant will never win.  More often, it is because the case has nothing important to add to a burgeoning load of case law.  Young isn't law of the circuit and a good thing too.  Young is wrong on that last sentence, very wrong.

Hey Courts -- Apply the Law in Effect at the Time of Decision

Not really sure how a pernicious idea that it just would not be fair to review an ALJ decision based on the new regulations, ruling, POMS, HALLEX, or teletype weaseled its way into the cases -- but it has and it is wrong.  It is indefensibly wrong.  

In Lockwood v. Commissioner, the Ninth Circuit observed as its very first observation that the policy pronouncement interpreting the regulation about the impact of age was not in effect at the time of the ALJ decision.  In Chapo v. Astrue, the Tenth Circuit started a long string of cases for the proposition that the court ought to cite and review the ALJ decision based on the regulations in effect at the time of the ALJ decision.  In Rice v. Barnhart, the Seventh Circuit applied a deleted listing.  

In Howard ex rel. Wolff v. Barnhart and  Garrett ex rel. Moore v. Barnhart, the Ninth and Eighth Circuits conceded to the Commissioner's request to apply the interim final rules to children's disability cases decided under those regulations because of changes in the program instead of the final rules promulgated with a delayed effective date.   That application of the rules in effect at the time of the final decision instead of the rules in effect at the time of the court review had a specific and reasoned request -- to prevent the remand of every childhood disability case that would become pending after the final rules took effect.  So did Flener ex rel. Flener v. Barnhart, the Seventh Circuit just never told the public "why."   But those are different issues -- the Commissioner had a good reason and asked that the new rules not apply to all pending cases.  

 The general rule requires the courts to apply the law in effect at the time of the review -- not the law in effect at the time of the decision under review.  Henderson v. U.S.  It isn't like Henderson forged new ground.  Henderson relied on Thorpe v. Housing Authority of Durham.  The modern doctrine to apply the law in effect at the time of the appeal dates back to the founding of the nation.  United States v. Peggy Schooner.  

The author of the wiki article about Peggy Schooner states that a treaty between the United States and France about ships seized at sea during an undeclared war had retroactive effect.  That implication, suggestion, or statement is just wrong.  The treaty applied to pending cases not yet final.  Retroactive application changes the legal result of matters already final.  Application to all pending matters concerns an evenhanded resolution of all matters that will come before the court once the new legal anchor gets set.  

For Lockwood, the application of a different interpretation of a stable but ambiguous regulation has passed.  But Lockwood did not explain or address why it should not apply the interpretation of the regulation in effect at the time of decision.  And don't fret that Lockwood constitutes law of the circuit -- it doesn't.  Mutual Life Ins. Co. v. Lipp.

The numbers game

The vocational expert testifies to the presence of a hundred thousand jobs as a small product assembler -- do you believe it?

There are 145 million jobs in the nation.  There are 12,500 ish DOT codes.  On average, there are 11,600 jobs per DOT code.  But there are a whole lot more of certain jobs -- mostly skilled and semi-skilled.  Do you believe that any unskilled job has significantly more than the statistical average?

OK, vocational expert without any statistical expertise how did you get those numbers?

What are the Standard Occupational Classification groups for the occupations you identified?

There are 23 groups of SOC groups.  There are 818 different line item SOC codes.  Give me the one for this DOT code.

What are the North American Industry Classification System codes?

Work exists in certain industries.  The Census Bureau describes the numbers of jobs by NAICS code.  It is called County Business Patterns.

With the SOC and NAICS codes, anyone can look up the numbers of jobs within those intersections.  The BLS publishes employment projections that do exactly that.

How many production workers have jobs in the wood product manufacturing industry -- about 3,800. Look at line 48.

The wood product manufacturing industry employs 337,900 people.  Please don't tell me that a third of the people in that industry group have jobs as a dowel inspector.  I am not that naive.