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Post by privateatty on Oct 7, 2014 17:09:59 GMT -5
I haven't educated myself as to all the finer, more technical aspects of this discussion. So, please forgive me for speaking out of turn. But, I've found most decisions easy to make and cause to be written. That is, every case is so dependent on its own facts. If a person is 50 years old and can only lift 10 pounds and has no past work, then they're disabled. I don't need to cite to an Article III court's decision. On the other hand, if a person is 25, drives every day, can lift 100 pounds, and their only functional limitation is that they cannot be exposed to atmospheric irritants on more than an occasional basis, then they're not disabled. (I base that on what I know the VE will testify to.) You have to consider the documentary and testimonial evidence and determine whether the evidence is believable or not. Is the claimant blowing smoke or testifying truthfully? Did the consultative examiner do a good job? Is the treating source's assessment, if any, a reasonable one? The deliberative process in every case is, as a practical matter, wholly fact dependent. You apply the facts you find to SSA policy and 20 CFR. I don't need to look to case law to decide whether the claimant is disabled. My two cents' worth. YMMV. Best, Hamster Since I know nothing of ODAR law, I can't appreciate your point. I assume that in your opinion there is no need to consult relevant case law since each case turns on its own facts. Is that not true of any case? Simply because Puzzle Palace has honed the Reg blade doth not make their sword any sharper. Obviously, any attorney or Judge worth their salt can dance on the head of a pin. However, my point is not just the dance, but rather the whole gathering. And there is an over-riding ethical issue here that is getting short shrift.
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Post by philliesfan on Oct 7, 2014 17:43:05 GMT -5
ALJs are not Article III judges. We are past of Executive Branch. At ODAR, we apply the provisions of the Social Security Act and other relevant statutes, the Social Security Regulations and Rulings, and ARs. ALJs in other agencies are also subject to the same kind of limitations. We have no equity jurisdiction. We have some leeway in the way we apply the Statute, Regulations, Rulings, etc. As Hamster noted, in most cases, based on the facts, the decision is based on the findings that I make on several factors, age, education, work experience, and residual functional capacity. None of this has anything to do Circuit Court law.
Social Security is a national program. Entitlement to benefits should not be dependent on which circuit the claimant lives in. The only Court decisions, other than those the subject to ARs, we are bound to follow are Supreme Court decisions
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Post by maxlaw on Oct 7, 2014 17:50:36 GMT -5
I agree I found this hard to swallow when the policy was introduced to us at training, but it hasn't been too problematic in application. I always decide my hearings in accordance with the law in my circuit. Generally I don't have to specifically cite the Circuit Court's decision to do so as I can explain the weight given various parts of the record without it. The one exception is Veterans Administration cases, for which a number of federal circuits have required a specific weight to be given. In those cases I add the circuit court cite, recite the appropriate standard, justify the weight I actually gave, and sign the case. I don't ask the writer's do so. Haven't been called on the carpet for it so far.
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Post by privateatty on Oct 7, 2014 18:49:16 GMT -5
ALJs are not Article III judges. We are past of Executive Branch. At ODAR, we apply the provisions of the Social Security Act and other relevant statutes, the Social Security Regulations and Rulings, and ARs. ALJs in other agencies are also subject to the same kind of limitations. We have no equity jurisdiction. We have some leeway in the way we apply the Statute, Regulations, Rulings, etc. As Hamster noted, in most cases, based on the facts, the decision is based on the findings that I make on several factors, age, education, work experience, and residual functional capacity. None of this has anything to do Circuit Court law. Social Security is a national program. Entitlement to benefits should not be dependent on which circuit the claimant lives in. The only Court decisions, other than those the subject to ARs, we are bound to follow are Supreme Court decisions There are alot of national programs--Longshore, Medicare, SEC law, etc. The ALJs who administer those programs are no different than you. The Circuit Court law is the law. Your argument flies in the face of the plain meaning of the Constitution.
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Post by philliesfan on Oct 7, 2014 19:13:37 GMT -5
In many of those agencies, ALJ decisions are written for a Board or Commission or some other body that can accept, reject, or modify the decision. Appeals are then often to a Circuit court, frequently the Fed Circuit. Therefore, there is a more uniform application of the law. Appeals from SSA cases are to the District Court where the claimant lives. Talk about random application of SSA law, and then to the applicable Circuit Court. Therefore, the Courts have two opportunities to screw up the law. I have seen many Court decisions that have stood SSA law on its head.
BTW, if there is a bad District Court decision, in order to take an appeal to the Circuit Court, it requires concurrence of the Office of General Counsel, the Appeals Council, and the Solicitor General's Office. As most cases are specific to their facts, appeals rarely happen, unless some overarching legal issue is in question.
If you become an SSA ALJ, looking up and citing Court cases will not be part of your work activity.
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Post by hamster on Oct 7, 2014 19:20:29 GMT -5
Whatever my friend Philliesfan said.
Private attorney wrote, in part, "The Circuit Court law is the law. Your argument flies in the face of the plain meaning of the Constitution."
The way I see it is like this. Let's say that the Circuit Court rules that it is illegal to order Spumoni ice cream. OK, I know that's the law...and I would have to follow it, even though I really like Spumoni ice cream.
But everybody who comes to the counter orders Vanilla. I say to them, "But Vanilla is so...well, vanilla. Why don't you order Spumoni?" However, nobody orders the Spumoni and all I serve is Vanilla. Vanilla, day in and day out.
It's that way with Circuit Court law. Nobody orders the Spumoni, so I never have to worry about it. Similarly, in my disability decisions, I never need to worry about Circuit Court law because the cases are, generally, plain vanilla.
Best, Hamster
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Post by workdrone on Oct 7, 2014 19:31:52 GMT -5
I agree I found this hard to swallow when the policy was introduced to us at training, but it hasn't been too problematic in application. I always decide my hearings in accordance with the law in my circuit. Generally I don't have to specifically cite the Circuit Court's decision to do so as I can explain the weight given various parts of the record without it. The one exception is Veterans Administration cases, for which a number of federal circuits have required a specific weight to be given. In those cases I add the circuit court cite, recite the appropriate standard, justify the weight I actually gave, and sign the case. I don't ask the writer's do so. Haven't been called on the carpet for it so far. I concur with Max and Hamster's points. Social Security law is really a very stale area of the law. There are very few, if any novel legal issues left and the vast majority of the cases turn on the weight of the medical evidence and claimant's credibility. The cases are won or lost based on very case specific evidence, not on some novel issue of law. Each circuit may have a handful of relevant Circuit Court rulings, and they are mostly addressed in the ARs. If not, a diligent ALJ should be well aware of that particular Circuit Court opinion in his/her daily work to minimize the chance of remand. So this whole thing about the 2013 OCALJ memo is much ado about nothing. I have cited my circuit court's opinion regularly in VA cases like Max did, and it hasn't been a problem during the years I been doing it. I have been calling cases the way I see it for quite a long time now, and while the agency has periodically pushed for more quantity over the year, I never had anyone interfere with my decisional independence. So I really don't think stirring up the pot here using a fairly routine OCALJ memo is justified in this case. Honestly, the only time I have seen any of this be an issue is when you have an ALJ who's doing 200 cases a year while pointing to his lengthy decisions that are choked full of worthless unpublished district court case cites and crazy footnotes as to why he's incapable of doing more. But that's a discussion for another thread.
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Post by privateatty on Oct 7, 2014 19:32:06 GMT -5
In many of those agencies, ALJ decisions are written for a Board or Commission or some other body that can accept, reject, or modify the decision. Appeals are then often to a Circuit court, frequently the Fed Circuit. Therefore, there is a more uniform application of the law. Appeals from SSA cases are to the District Court where the claimant lives. Talk about random application of SSA law, and then to the applicable Circuit Court. Therefore, the Courts have two opportunities to screw up the law. I have seen many Court decisions that have stood SSA law on its head. BTW, if there is a bad District Court decision, in order to take an appeal to the Circuit Court, it requires concurrence of the Office of General Counsel, the Appeals Council, and the Solicitor General's Office. As most cases are specific to their facts, appeals rarely happen, unless some overarching legal issue is in question. If you become an SSA ALJ, looking up and citing Court cases will not be part of your work activity. None of these arguments/rationale allow you as an ALJ to escape the Constitunional mandate. Do you think you are the only ALJ who may not like the applicable Circuit Court case? Pardon me, but your argument is simply that the Agency is right and the Circuit Court is wrong. Thus, you have eloquently made my point for me.
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Post by funkyodar on Oct 7, 2014 20:20:12 GMT -5
This discussion and the various positions of those involved in it is a microcosm of the debate and positions that are always taken by those that hate every move management makes and those that act as if management is never wrong. As a former writer and newly minted alj I must say I have often found it silly.
An alj for ssa is not an article III judge. It is not our job to make law or even really interpret it. We are article I judges. We administer the law. The executive, in this case the commissioner, is charged with enforcing/administering the law. As she/he interprets it. We have absolutely no authority that isnt derived from the commissioner. We stand in their shoes and, as such, must apply the rules, regs, policy and statutes as the commissioner would. As they have interpreted them. Not as anyone else has interpreted them. Not as we think they should be interpreted. Our judicial independence is qualified in that it does not extend to the ability to disregard whatever the commissioner has interpreted the law to be.
The circuit.court precedence is a perfect example. When someone appeals the way the commissioner has interpreted the law or enacted policy, the commissioner is the party. If the circuit rules against her, she has the same options as any other party that loses in circuit court. She can seek.appeal to the.supremes, acquiesce and accept the ruling or choose to disregard it, keep doing what she has been doing and suffer the consequences. Whatever her decision, we as aljs that are bound to follow her directives (because, again, we have no authority but that which stems from the commissioner) have no authority to decide to apply or not apply the ruling other than as the commissioner directs.
Is it odd as a lawyer to not apply precedent in a circuit? Yep. But we have all had clients that dire t us to proceed in a way where we have to fight precedent. As a judge? Would an article three judge disregard precedent from the circuit he sits in? Of course not. But thats his job. We, ssa aljs, are not article three judges. It's that simple.
And, in reality, most circuit court decisions are acquiesced to in that circuit. So, as noted by sratty, hamster and max, it's really not an issue anyway.
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Post by gary on Oct 7, 2014 20:34:42 GMT -5
This discussion and the various positions of those involved in it is a microcosm of the debate and positions that are always taken by those that hate every move management makes and those that act as if management is never wrong. As a former writer and newly minted alj I must say I have often found it silly. An alj for ssa is not an article III judge. It is not our job to make law or even really interpret it. We are article I judges. We administer the law. The executive, in this case the commissioner, is charged with enforcing/administering the law. As she/he interprets it. We have absolutely no authority that isnt derived from the commissioner. We stand in their shoes and, as such, must apply the rules, regs, policy and statutes as the commissioner would. As they have interpreted them. Not as anyone else has interpreted them. Not as we think they should be interpreted. Our judicial independence is qualified in that it does not extend to the ability to disregard whatever the commissioner has interpreted the law to be. The circuit.court precedence is a perfect example. When someone appeals the way the commissioner has interpreted the law or enacted policy, the commissioner is the party. If the circuit rules against her, she has the same options as any other party that loses in circuit court. She can seek.appeal to the.supremes, acquiesce and accept the ruling or choose to disregard it, keep doing what she has been doing and suffer the consequences. Whatever her decision, we as aljs that are bound to follow her directives (because, again, we have no authority but that which stems from the commissioner) have no authority to decide to apply or not apply the ruling other than as the commissioner directs. Is it odd as a lawyer to not apply precedent in a circuit? Yep. But we have all had clients that dire t us to proceed in a way where we have to fight precedent. As a judge? Would an article three judge disregard precedent from the circuit he sits in? Of course not. But thats his job. We, ssa aljs, are not article three judges. It's that simple. And, in reality, most circuit court decisions are acquiesced to in that circuit. So, as noted by sratty, hamster and max, it's really not an issue anyway. You have hit the nail on its head. In the district court when we were being precise we referred to the Commissioner's decision, not the ALJ's.
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Post by JudgeRatty on Oct 7, 2014 21:05:29 GMT -5
Bingo. Yes Privateatty is right circuit court decisions do matter. Of course they do! But at ODAR the Commissioner determines how that will in fact be applied for all of us so citing to the ARs is essentially following the case law. It is actually a practical way to ensure precedent is followed consistently throughout the agency. So back to my original point, it really is not an issue for me in practice.
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Post by christina on Oct 7, 2014 21:25:31 GMT -5
for the record, this policy that robg noted has been agency policy for 20 years if not longer. I am side-stepping the issue of whether it should be policy or not. too tired to offer relevant commentary on that right now. i am just pointing out it's been the policy for a long time and not some new concoction management started. i thought i saw some posts suggesting this is new. oh and part of the theory is unanimity. until the agency issues an AR, they do not want judges coming up with different but viable versions of what a circuit court ruling means. i think that is the general thought behind this policy. one exception to this is are cases where the claimant resides in New York state. for any new SSA case covered by Stieberger, which as far as i know are all disability cases we, as in SSA, are to apply second circuit caselaw. Can't remember if Stieberger states that directly(I think it does) or if a subsequent case does. but at any rate, the different policy in NY is due to a circuit court case that basically said ..... you SSA, if we issue a decision, we want it followed, AR or not.... and now that I think of it, i have not handled any New York cases for years so it's possible that has changed anyway. Good night all.
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Post by Deleted on Oct 8, 2014 7:23:06 GMT -5
Quality discussion. I agree that it is a minor issue that may rarely, if ever, come up. I agree that the Agency has a rationale for keeping decisions issued by the Agency policy consistent. I also agree that we can write around it. One should not read my open-ended questions as a raging diatribe against Agency and/or Union coupled with a burning desire to…quote case law. That would be somewhat silly.
What did happen was that a memo went out telling ALJ’s and writers to remove any reference to Circuit Court case law in our decisions. That makes me go “hmm”. I want to think about that for a minute, and bouncing it off the fine minds on the board is a way to do that.
So, not taking this too seriously, something about the policy rubs me the wrong way as a lawyer. Case law, SSRs, AR’s, regulations, etc. are all tools in the toolbox for a practitioner of the law. Why pull a tool from the box, even if it is a rarely used one?
I was thinking about how our legal system undergoes change in an organic way. Some lowly practitioner makes a point, challenges a law/policy/reg, moves a case via appeal through higher Courts, and change occurs. As a former litigator, I advocated change in law/policy/regulation etc. for the benefit of my client. My legal opponents did the same. In the Social Security system, who is in the best position to advocate for change/reinterpretation/growth of existing law? Advocates for claimants surely are working the appeal system to advocate for claimants. Counsel for the Agency mostly appear to be defending the status quo. I can’t see their role as one that would challenge existing law. On the other hand, having an independent judiciary occasionally call into question existing law/policy/reg. and having that question percolate up the appeal chain, might…might be a beneficial thing. So, again, the question: why pull that particular tool from the box?
Pardon the length of my post. An example: I am continually frustrated by the legal definition of the term “severe.” In particular, the Circuit court rulings in my area make me think that we should be revisiting this area of Social Security law. No rep for a claimant is ever going to argue that the legal definition of “severe” should be…more “severe”. I can’t see an Agency counsel arguing that the Agency has it wrong. But, if a member of the (quasi-independent?) ALJ corps took a stand on the right case and wrote some compelling argument…and that argument percolated up the food chain… My point being that the crafters of the memo may be overlooking the possibly beneficial products of using all the tools in our toolbox.
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Post by redryder on Oct 8, 2014 14:20:10 GMT -5
I find these kinds of discussions are reminescent of my days in private practice and appeared before judges about whom the bar held the opinion "if you want to hide the law from him/her, put it in a lawbook." While several members of the corps have been quick to chastise Judge Bice, no one seems to have bothered to look in the regulations that govern our procedures. Had they, they would have discovered 404.985 and 416.1485 which address "application of circuit court law" and further noted these have been in force since May 6, 1998. New policy? No.
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Post by mcb on Oct 8, 2014 15:04:23 GMT -5
Regardless of whether Circuit and Supreme Court case law are binding on an ALJ/Commissioner, OGC visits our hearing office once a year, for a meeting with the ALJs and decision writers, and discusses the previous year's decisions, and what language, ommissions, etc., found in an ALJ decision may lead to a DCt or COA remand and suggests remedies to avoid future remands. If COA decisions are not important, why does OGC visit us annually? Ignore Circuit case law at your own peril??? Or don't and receive a reprimand from management?
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Post by gary on Oct 8, 2014 15:08:36 GMT -5
There is a difference between not citing district and circuit court cases and ignoring them.
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Post by mcb on Oct 8, 2014 15:12:53 GMT -5
There is a difference between not citing district and circuit court cases and ignoring them. Bad choice of words on my part. Really, just wondering if by changing language in a decision, for example "a credibility finding for a third party witness," ( a recent issue in my Circuit) so that it doesn't lead to a future remand, indicates whether they are binding on us.
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Post by mcb on Oct 8, 2014 15:23:52 GMT -5
And, in reality, most circuit court decisions are acquiesced to in that circuit. So, as noted by sratty, hamster and max, it's really not an issue anyway. Not sure which Circuit you are referring too, but the last time there was an AR in my Circuit was 2005 on a 2004 Circuit decision. Since then, there are at least 63 published decisions in my Circuit.
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Post by hopefalj on Oct 8, 2014 15:51:37 GMT -5
And, in reality, most circuit court decisions are acquiesced to in that circuit. So, as noted by sratty, hamster and max, it's really not an issue anyway. Not sure which Circuit you are referring too, but the last time there was an AR in my Circuit was 2005 on a 2004 Circuit decision. Since then, there are at least 63 published decisions in my Circuit. How many of those interpreted or determined SSA policy? A quick review of my circuit's SSA cases shows the majority had to do with EAJA fees, and all but one of the others were affirmations of the ALJ's denial decisions. At least in our circuits (because we have states in multiple circuits), the circuit court opinions that significantly affect agency policy are contained in the ARs. But that could merely be my area and not the same as everywhere else. I tend to have a high opinion of all of the judges that post on this board in terms of caring about the job and doing their best to perform their duties as ALJs. I don't think that this policy will significantly affect you regardless of whether you cite case law in your decisions, to the ARs, or just to general principles. But I have had the privilege of writing for a judge or two that have sought out cases from other circuits, whether at the circuit or district court and regardless of whether it was published, solely to contravene agency policy. Is this a rampant problem? I can't imagine it is. However, these folks do exist.
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Post by mcb on Oct 8, 2014 16:06:27 GMT -5
How many of those interpreted or determined SSA policy? A quick review of my circuit's SSA cases shows the majority had to do with EAJA fees, and all but one of the others were affirmations of the ALJ's denial decisions. At least in our circuits (because we have states in multiple circuits), the circuit court opinions that significantly affect agency policy are contained in the ARs. But that could merely be my area and not the same as everywhere else. Not going to go through all 63, but the five published decisions this year include: 1. Remand on 12.05C issue 2. Remand weighing medical opinion and adverse credibility finding issues 3. Remand and reversal for award of benefits on weighing medical opinion issue (55 pp. decision no dissent) 4. EAJA case (Fees awarded because the underlying federal agency action lacked a reasonable basis in law because the Social Security administrative law judge disregarded competent lay witness evidence without comment). 5. Affirmation on reliability of VE testimony issue
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