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Post by privateatty on Oct 8, 2014 16:15:13 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? I am simply asking folks to think. Yes, you must follow the Regs and Commish directives, whatever you call them. Yes, funky, I know I am not an Art III Judge. The motive behind the directive at issue comports with the PD change. We, OGC and Puzzle Palace, will tell you what the law is, not some Circuit Court, constitutional mandate regardless. If you are comfortable with that then fine. But I am going to keep questioning, just like I did so many years ago in my first year of law school. And I guess I'm in the right place too.
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Post by hopefalj on Oct 8, 2014 16:25:52 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 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 Thanks for the response. I guess the question remains how many of the 63 published decisions change the law or interpret the law differently than the agency, i.e. how many of these decisions affect how you do your job or will subject you to a remand if you ignore them? That's the issue to me. We have a long weekend coming up if you'd like to delve further into these cases.
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Post by Deleted on Oct 9, 2014 8:21:08 GMT -5
Okay. Agreed that the policy is not NEW. Did anyone suggest it was? Okay. Not NEW.
(Although for the past five years nearly every decsion that has gone over my name has cited to a specific 5th Circuit case, and that changed last week..so that is new.)
Okay. Agreed that it is a minor issue. It will not come up often, if at all. As an ALJ you don't ever have to think about it if you don't want to. Ignore at will. Or, you can just write around it. Agreed.
Okay. I can, and have, read the regs. I know it's the Commissioner's decision. Agreed.
But. Somewhere in all that, and hopefully beyond it, is the fact that we (ALJ's) are not Agency employees. Right? Independent judicary-ish? Right? Three hats? Representing and advocating impartially for claimants, government, and taxpayer. Correct?
Normally, I agree with Funky....but, "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."
That one disturbs me. Not much of a judge (administrative or otherwise) if I my judgement is superceeded by the opinion of one of the parties who appears before me. (In the sense that the claimant and the Agency are parties to the hearings we preside over).
"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."
Okay. Not Article III judges. Got it. Agreed.
But. Is the Agency really my 'client' or...perhaps more specifically...is the Agency my ONLY client? Not a sarcastic question.
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Post by christina on Oct 9, 2014 9:28:28 GMT -5
robg, all excellent points. Since I have been thinking about this more after your initial post, it has been bothering me more too. At best, is is another example of how SSA management has a disdain and disrespect for the judges. At best. At worst, it is deliberately interfering with ALJ independence. a key point and this is in the regs are that the Commish at the end of the day is responsible for SSA cases and i think there is even a reg or maybe it is in the SS Act that this responsibility is delegated to ALJs. so with that backdrop, there is some, in fact, a fair amount of room for the agency to direct policy, at least on a macro scale. but lately, there has been a fervor, in my opinion, to insanely control the judges, which is bad, in fact very bad. Although the policy you noted is not new, SSA's keen interest in reminding the "wayward" judges of this falls in line with their recent hypercontrolling ways.
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Post by funkyodar on Oct 9, 2014 16:20:22 GMT -5
It is certainly not beyond the realm of possibility that I, who has been wearing the three hats for just over a month, am missing something. Because to me, it seems pretty clear and perfectly in line with the separation of powers, the concept of delegated authority and school house rock.
Congress passes the statutes and regs. The executive branch enforces, based on how they interpret it. SSA rules and enforcement has been delegated by the pres to the commissioner. When someone claims disability, the commissioner decides, based on the rules regs and policy if they are disabled. But she can't do 975000 hearings. So she delegates the hearing authority ti aljs. They are given the qualified judicial independence to make findings of fact and to apply the rules regs and policy as the administration has interpreted it. Not to question, interpret or rule on the policy, but on the narrow issues of fact and then to apply the policy. No ssa alj has been delegated rule making, policy making or regulation interpretation authority.
But thats fine. The cases before me involve only whether a person is disabled under the applicable rules regs and policy. As an ssa alj I will never have a case where someone is arguing a policy or reg is unconstitutional. I'm not the proper venue for that. Thats why we have article three courts.
Do I think the commissioner should follow.circuit precedent? Usually. I mean there is definitely a legitimate interest in having the same law applied in Middlesboro as in Fresno when talking about a national program. And, I would hazard many many of those sixty three cases mentioned by mcb went off on individual specific issues and not questions of policy.or regulatory appropriateness. Those that do, in my admittedly limited experience, generally get acquiesced to.
In reality tho, it doesn't matter. My judicial independence has always been qualified. It's always been limited to deciding the issues of fact and applying the relevant rules regs and policy AS DELINEATED BY THE COMMISIONER. If I have an issue with that, I should have stayed a lawyer and fought the good fight or made much better friends that could help me get an article three judgeship.
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Post by agilitymom on Oct 9, 2014 16:32:51 GMT -5
Rock on Funky!
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Post by privateatty on Oct 9, 2014 20:28:47 GMT -5
Okay. Agreed that the policy is not NEW. Did anyone suggest it was? Okay. Not NEW. (Although for the past five years nearly every decsion that has gone over my name has cited to a specific 5th Circuit case, and that changed last week..so that is new.) Okay. Agreed that it is a minor issue. It will not come up often, if at all. As an ALJ you don't ever have to think about it if you don't want to. Ignore at will. Or, you can just write around it. Agreed. Okay. I can, and have, read the regs. I know it's the Commissioner's decision. Agreed. But. Somewhere in all that, and hopefully beyond it, is the fact that we (ALJ's) are not Agency employees. Right? Independent judicary-ish? Right? Three hats? Representing and advocating impartially for claimants, government, and taxpayer. Correct? Normally, I agree with Funky....but, "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." That one disturbs me. Not much of a judge (administrative or otherwise) if I my judgement is superceeded by the opinion of one of the parties who appears before me. (In the sense that the claimant and the Agency are parties to the hearings we preside over). "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." Okay. Not Article III judges. Got it. Agreed. But. Is the Agency really my 'client' or...perhaps more specifically...is the Agency my ONLY client? Not a sarcastic question. Not to sound too Polllyana or mundane, but your client is justice under the law. The Agency is a party as is the Claimant. That is why SSA Hearings arer really not "non adversarial."
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Post by privateatty on Oct 9, 2014 20:36:15 GMT -5
It is certainly not beyond the realm of possibility that I, who has been wearing the three hats for just over a month, am missing something. Because to me, it seems pretty clear and perfectly in line with the separation of powers, the concept of delegated authority and school house rock. Congress passes the statutes and regs. The executive branch enforces, based on how they interpret it. SSA rules and enforcement has been delegated by the pres to the commissioner. When someone claims disability, the commissioner decides, based on the rules regs and policy if they are disabled. But she can't do 975000 hearings. So she delegates the hearing authority ti aljs. They are given the qualified judicial independence to make findings of fact and to apply the rules regs and policy as the administration has interpreted it. Not to question, interpret or rule on the policy, but on the narrow issues of fact and then to apply the policy. No ssa alj has been delegated rule making, policy making or regulation interpretation authority. But thats fine. The cases before me involve only whether a person is disabled under the applicable rules regs and policy. As an ssa alj I will never have a case where someone is arguing a policy or reg is unconstitutional. I'm not the proper venue for that. Thats why we have article three courts. Do I think the commissioner should follow.circuit precedent? Usually. I mean there is definitely a legitimate interest in having the same law applied in Middlesboro as in Fresno when talking about a national program. And, I would hazard many many of those sixty three cases mentioned by mcb went off on individual specific issues and not questions of policy.or regulatory appropriateness. Those that do, in my admittedly limited experience, generally get acquiesced to. In reality tho, it doesn't matter. My judicial independence has always been qualified. It's always been limited to deciding the issues of fact and applying the relevant rules regs and policy AS DELINEATED BY THE COMMISIONER. If I have an issue with that, I should have stayed a lawyer and fought the good fight or made much better friends that could help me get an article three judgeship. If the Commish says gray about a CFR and the relevant Circuit Court says white after giving Chevron deference to that CFR, what is your duty here? Rely on the OGC to tell you what color of gray the Commish has pronounced? I know, you can apply the facts of your case to avoid or dance around the Circuit Court case, but the dance that you engage in abdicates your responsibility step by step to follow the law--as an ALJ. You have a larger duty here to afford a de novo hearing as the trier of fact--the only such one in the entire case.
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Post by funkyodar on Oct 9, 2014 21:58:52 GMT -5
Sorry Private, but I must reject your analogy on the basis that, in my experience, I've never seen a situation where the plain meaning of a stat (white, in your analogy) would be interpreted so contrarily (to be gray).
Now, let's tweak it a bit. Let's say the cfr section says white. And the commissioner interprets that to mean a pure, bright white. As an alj without delegated authority to rule on that interpretation and, instead, only qualified judicial independence to reach a finding of fact on whether the subject is in fact pure bright white, I cannot find something that is eggshell or offwhite to meet the reg. Period.
Now, lets say my circuit rules the policy interpretation of the commissioner is wrong and that it should include eggshell and offwhite.
Does the circuit courts ruling somehow increase my judicial authority? Does that one ruling somehow supercede the basic, established delegation of authority standard? No, it doesn't. Nothing about that ruling gives me any authority to contradict the interpretation of the commissioner.
I would hope the commissioner would acquiesce to the ruling. Once done, I now have the new interpretation to work with. But the commissioner certainly doesn't have to acquiesce. She, like any other party, can seek further appellant review. Or, she can foolishly choose to ignore the ruling, continue to use her interpretation and suffer the consequences of that choice in all future cases at least in that circuit. It's her choice.
Nothing about the ruling delegates that choice to me. Nothing about it lets me just ignore the dictates of the commissioner, my delegating authority. You know that. You may not like it. Not saying I do either. But we chose to be aljs. We chose to work in an area where we are not asked to make law, but to just administer it in narrow situations. An ssa alj stands in the shoes of the commissioner. You cant do that if you cant get past the idea that you have no authority to substitute your interpretation of the law or anyone elses for that of the commissioner. Sorry, but thats just the nature of the beast. If one doesn't like it, you dont have to keep riding it. There are plenty others willing to accept those intellectual and ego limitations and saddle up.
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Post by privateatty on Oct 10, 2014 6:05:11 GMT -5
Well, you see, you are talking about SSA. I'm not, in the sense of these AR's or acquiescence rulings, as y'all call them. This is a beast peculiar to SSA, apparently, and I certainly don't want to say anything more about them because I know nothing of SSA law other than what I read here.
What I do know is that I agree with you insofar that as an ALJ, whether under the Commish for you or under the Secretary under me, I am applying my Agency's law as I know it. In other Agencies, some ALJs are feral--that is they don't have an established body of law as you do. Others, like NLRB and SEC have their Commission law which may or may not be on point and thus they are applying Circuit Court law.
I don't agree with you in principle that you would apply the law of your Commish knowing that it flies in the face of established, precedential, Circuit Court law.
But heck, if you are comfortable with your Agency and you most assuredly are, I cannot say that you are doing the wrong thing--for you. I couldn't do it as I could not in good conscience apply "bad" law--law in which my Commish has ignored out of what I see as Agency arrogance. It would be like the Circuit Court saying that the SEC Reg is nunc pro tunc but then the SEC Commission saying "you know what, wer'e just going to ignore that and suffer the consequences". Am I going to follow my SEC Commission's subsequentl ruling? No, of course not as that would, IMO, violate my Constitutional oath.
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Post by tinman on Oct 10, 2014 6:28:17 GMT -5
Don't know anything about SSA law but in the administrative law world I practice in, no judge waits for the agency to update their regs or written policy to comport with published circuit law. Sounds to me like published circuit law has no precedential value for an ALJ unless SSA says it does, if I understand the discussion. This is a head-scratcher for those of us without an SSA background. I wonder if a circuit court would agree that an ALJ cannot apply its precedential decisions w/o acquiescence. You'd think the independence of an ALJ would extend as far as citing to and applying binding circuit precedent. Perhaps not--if there's one thing I do know, it's that admin law is not always intuitive. And I'm sure I'll learn all I'd ever want to know about it if I ever get that phone call...
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Post by privateatty on Oct 10, 2014 6:51:27 GMT -5
Don't know anything about SSA law but in the administrative law world I practice in, no judge waits for the agency to update their regs or written policy to comport with published circuit law. Sounds to me like published circuit law has no precedential value for an ALJ unless SSA says it does, if I understand the discussion. This is a head-scratcher for those of us without an SSA background. I wonder if a circuit court would agree that an ALJ cannot apply its precedential decisions w/o acquiescence. You'd think the independence of an ALJ would extend as far as citing to and applying binding circuit precedent. Perhaps not--if there's one thing I do know, it's that admin law is not always intuitive. And I'm sure I'll learn all I'd ever want to know about it if I ever get that phone call... Thanks for the post that puts my point in perspective--it's a headscratcher for me too!
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Post by Deleted on Oct 10, 2014 9:07:03 GMT -5
My friend Funky makes an interesting point about this idea of "delegated" authority. Trying to focus back on the question of whether the Agency can, or should, direct which case law an ALJ can cite to. I suppose one way to look at it, the narrowest way possible, is that an ALJ can't perform any action unless specifically authorized by the Commissioner. If he or she says hearings on Tues, then we have hearings on Tues. If he/she says diabetes is not a disability, then we don't pay people with diabetes. (A far out example).
If we look at it in the broadest possible way, the Agency is given certain authority, and powers, only in the area of social security. Thus, the ALJ's powers are limited to that area, and thus "derived" from the Commissioner. But that very broad interpretation wouldn't suggest that the Commissioner's powers extend to directing the work of the ALJ, just that the ALJ's authority is limited to social security. Would the word "jurisdiction" be out of place here? In the sense that the Commissioner has a jurisdiction over social security, and therefore the ALJ's authority is also limited to that jurisdiction.
I'm thinking that the truth, if such a thing exists, is somewhere in the middle, where our lowly ALJ is not required to accept every marching order like a good soldier, but is limited by reasonable and necessary rule-making.
For instance, the APA tells us that our humble ALJ " (c) Subject to published rules of the agency and within its powers," is empowered to:
o (1) administer oaths and affirmations; o (2) issue subpoenas authorized by law; o (3) rule on offers of proof and receive relevant evidence; o (4) take depositions or have depositions taken when the ends of justice would be served; o (5) regulate the course of the hearing; o (6) hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter; o (7) inform the parties as to the availability of one or more alternative means of dispute resolution, and encourage use of such methods; o (8) require the attendance at any conference held pursuant to paragraph (6) of at least one representative of each party who has authority to negotiate concerning resolution of issues in controversy; o (9) dispose of procedural requests or similar matters; o (10) make or recommend decisions in accordance with section 557 of this title; and o (11) take other action authorized by agency rule consistent with this subchapter.
In a sense, then, could one argue, that the ALJ's authority to conduct hearings and make decisions is, in fact, NOT derived from the Commissioner, but is derived from the APA? Does any part of the above lead one to believe that the ALJ's authority to regulate the course of the hearing and make decisions is limited by anything other than Agency Rules? And by this I mean Rules published and subject to public comment, etc. Does the above indicate to anyone that the authority to make decisions is limited by POMS or HALLEX or policy memos, or even regulation? A legit question, to which I think anyone who is sure they know the answer is mistaken.
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Post by privateatty on Oct 10, 2014 10:43:28 GMT -5
My power derives from the APA, not my Agency.
I have little doubt that the latter would disagree with this notion and thank goodness I'm not in an Agency that decries even its (the APA's) application and jurisdictional grant of power, but this discussion calls into question a broad range of issues that all ALJs (and wannabes) should think about, IMHO.
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Post by bartleby on Oct 10, 2014 14:09:47 GMT -5
And therein my friends lies the dilemma. Are we APA or SSA? What direction do we fall under? Do we have the protection of the APA in judicial independence, or must we decide every case as would the Commissioner, if she had any idea as to what was going on?? The problem is that the Regulations, Act, Policies, Hallex, and Poms consistently have inconsistencies in them. Do we pick one we like to enforce? Do we compare them and try to find a reasonable solution, ie., interpret them? Above, someone mentioned the Commish could decide that diabetes was no longer disabling. They have done that exact thing with obesity. Then they say we are not to take into consideration a person's habitus.. Okay, but then they say to be sure and take into consideration the person's obesity??? WTF? So do we consider habitus? Do they distinguish habitus from obesity? Until you have played the game for a while you can not understand the conflicting problems we face on a daily basis and the stress we find ourselves in due to the peril of interpreting the wrong way today. The Agency keeps track of your mistakes by the Comparison Rate with the Appeals Council. Or does this only truly reflect the mistake rate of the Appeals Council since they did not have the benefit of attending the hearing, or does it reflect the ineptness of some writers in the Agency? Or possibly the lack of time to properly edit those drafts due to the time constraints of the Agency? We are the largest Judicial Corp in the world. We have enormous responsibility to do the best of our abilities. Those efforts should not be thwarted by those managing us that do not have the knowledge or ability to do what we do. Again, I encourage all to read the book, "Social Security Administration, an Agency at War with Itself" by Frank Boroweic.
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Post by hopefalj on Oct 10, 2014 15:37:07 GMT -5
Bartleby... (Edited to take out the unnecessary snarky time-apologies)
"How Can We Consider Obesity in the Assessment of RFC When SSR 96-8p says, “Age and Body Habitus Are Not Factors in Assessing RFC”?
The SSR goes on to say that “t is incorrect to find that an individual has limitations beyond those caused by his or her medically determinable impairment(s) and any related symptoms, due to such factors as age and natural body build, and the activities the individual was accustomed to doing in his or her previous work.” (Emphasis added.) We included the italicized statement in the SSR to distinguish between individuals who have a medically determinable impairment of obesity and individuals who do not. When we identify obesity as a medically determinable impairment (see question 4, above), we will consider any functional limitations resulting from the obesity in the RFC assessment, in addition to any limitations resulting from any other physical or mental impairments that we identify.
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Post by moopigsdad on Oct 10, 2014 16:47:35 GMT -5
I have to agree with funky's analysis of what his present position requires of him. His ability to make decisions is controlled by the rules and regulations as written along with Commisioner dictates. He is not an Article III judge and cannot follow the latest district court's decision-making dictates. Rock on funky and do your job as required under the law my friend. The theoretical ideas expressed by others cannot guide your decisions as an ALJ for SSA/ODAR.
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Post by hal3000 on Oct 10, 2014 19:33:38 GMT -5
This anti management stuff is old and a complete waste of time. Funky is right on the money as usual. I for one would like to hear of a specific, supported example of when management required an ALJ to violate the APA. Everything I hear from management is about protecting the claimant. How does that violate the APA? Instead, what I hear is ALJs making this process about themselves rather than the claimant. It's not about us.
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Post by bartleby on Oct 10, 2014 19:46:27 GMT -5
Carry on suckers, enjoy your life and don't expect us to pick up the wounded or weak... If only you knew. Just returned from the annual Union conference and you will be rather surprised what the future holds. As Mr. T used to say, "I pity the fool..." The Agency attempted to remove every reference to the APA in the new position description and has removed the title Judge to be replaced with "incumbent".... Good night children, sleep well and sweet dreams, the days of your innocence are numbered.
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Post by jerseymom on Oct 10, 2014 22:05:36 GMT -5
OK friends, the sky is not falling (again). Despite whatever dire predictions were made at the Union training, here is what the future has is store for SSA ALJs: you must be productive, policy compliant, professional and polite. This is hard work and you must work hard to be successful. The job is about the claimant not the ALJ. We are facing increasing receipts with a shrinking budget. ODAR management wants ALJs to decide the case in a legally defensible, timely, and policy compliant manner. This is not a job to retire into. I have seen successful judges do the work in 40 hours a week, but know many others who work more than 40 hours a week. It is still one of the best jobs out there.
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