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Post by Orly on Oct 11, 2014 7:34:21 GMT -5
Good night children, sleep well and sweet dreams, the days of your innocence are numbered.
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Post by privateatty on Oct 11, 2014 8:13:42 GMT -5
694 F.3d 287 (3rd Cir. 2012) Mark W. HAGANS, Appellant v. COMMISSIONER OF SOCIAL SECURITY.
That case is instructive on this issue--and regulatory ambiguity. It can be found on Google Scholar. funky is right, you do do things differently at SSA--as the Court points out. The biggest adjudicative system in the world with all the special legal trappings attached thereto.
ARs may not have the force of law as far as the Circuit Court is concerned, but to all those at SSA they do. Now I can stop scratching my head.
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Post by redsox1 on Oct 11, 2014 10:56:49 GMT -5
Thanks for the cite PA. I'll definately check it out.
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Post by hal3000 on Oct 11, 2014 20:15:29 GMT -5
thanks for the cite-- it was a very good read.
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Post by Deleted on Oct 13, 2014 7:54:20 GMT -5
Good Catch! Fascinating read... if you're interested in Administrative Law. Clearly, some are not.
A somewhat detailed description of the nature of an Acquiescence Ruling is necessary to aid our deference analysis. Broadly, agencies are empowered to interpret a statute through the processes of rulemaking, adjudication, or licensing. Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq. Rulemaking is defined as the “agency process for formulating, amending, or repealing a rule,” and a rule is defined as an “agency statement of general or particular applicability and future *301 effect.” Id. § 551(4), (5). The rulemaking process must involve the notice-and-comment procedures outlined in the APA unless there is good cause or the proposed rule falls into the category of “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. § 553(b)(3)(A). In the context of the administration of the Social Security Act, the SSA issues two types of rulings which do not involve notice-and-comment procedures: Social Security Rulings, which address both administrative and judicial decisions, and Acquiescence Rulings,FN16 which relate only to decisions by federal appellate courts. Social Security and Acquiescence Rulings, available at http:// www. ssa. gov/ OP_ Home/ rulings/ rulings- pref. html (last visited August 8, 2012).
FN16. Although it is clear that the process for formulating an Acquiescence Ruling does not require notice-and-comment, the procedure employed by the SSA is somewhat opaque because the agency's internal guidelines do not explain the process for drafting and approving an Acquiescence Ruling or who bears the responsibility for doing so.
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Post by privateatty on Oct 13, 2014 8:15:01 GMT -5
Notice, robg how the Board crosses out your text from the opinion? Same thing happened to me and I got so frustrated I just cited to the case.
The last citation in the case above is Marbury v. Madison, 5 U.S. 137, 177 (1803)--holding that it is the "province of the judiciary 'to say what the law is'"--in a reminder to SSA.
Yes, it is a shame that we don't seem to have alot of admin law aficionados.
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Post by Deleted on Oct 13, 2014 8:19:23 GMT -5
Yeah, still working on that. Not sure where the line thru is coming from...Still trying... "Acquiescence Rulings "explain how SSA will apply a holding by a United States Court of Appeals that is at variance with [the agency's] national policies for adjudicating claims." Acquiescence Ruling Definition, available at www.ssa.gov/regulations/def-ar.htm (last visited August 8, 2012); see also 20 C.F.R. § 404.985(b) (stating that the SSA will issue an Acquiescence Ruling when it "determine that a United States Court of Appeals holding conflicts with [the SSA's] interpretation of a provision of the Social Security Act or regulations"); Social Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55,656 (Sept. 22, 2005) ("An acquiescence ruling explains how [the SSA] will apply a holding in a decision of a United States Court of Appeals that [the SSA] determine conflicts with [its] interpretation of a provision of the Social Security Act (Act) or regulations when the Government has decided not to seek further review of that decision or is unsuccessful on further review."). The content of this type of ruling "describe the administrative case and the court decision, identif[ies] the issue(s) involved, and explain how [the SSA] will apply the holding, including, as necessary, how the holding relates to other decisions within the applicable circuit." 20 C.F.R. § 404.985(b). Acquiescence Rulings are announced through publication "in the `Notices' section of the Federal Register under the authority of the Commissioner of Social Security and are effective upon publication." Acquiescence Ruling Definition, supra. Importantly, "ARs do not have the force and effect of the law or regulations," although the SSA requires that they be "binding on all components of SSA unless superceded, rescinded, or modified by another ruling." Id.[17]
[17] It might appear from this brief description that the name "Acquiescence Ruling" is something of a misnomer given that these rulings are issued to indicate the SSA's policy of refusing to follow the decision of a Court of Appeals. However, such rulings specifically explain the SSA's general policy that it will comply with the appellate ruling within the circuit where the ruling was issued except to the extent that it elects to relitigate the issue. See 20 C.F.R. § 404.985(a) ("We will apply a holding in a United States Court of Appeals decision that we determine conflicts with our interpretation of a provision of the Social Security Act or regulations.... within the applicable circuit...."). Such compliance is generally proper to avoid exceeding the scope of the agency's power, because it is axiomatic that it is within the province of the judiciary "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). [18] It is worth explaining what we mean when we refer to "the force of law." The Supreme Court has explained that a rule has "the `force and effect of law'" when it possesses "certain substantive characteristics" and is "the product of certain procedural requisites." Chrysler Corp. v. Brown, 441 U.S. 281, 301, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). An "important touchstone" for distinguishing whether a rule has the force of law is whether the rule "affect individual rights and obligations." Id. at 302, 99 S.Ct. 1705 (quotation marks omitted). While Acquiescence Rulings are "binding" within the SSA, this binding effect does not extend beyond the agency to bear on the "individual rights and obligations" of the people and entities regulated by the SSA. Thus, as the SSA recognizes, Acquiescence Rulings lack the force of law."
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Post by tinman on Oct 14, 2014 8:35:48 GMT -5
So when, due to bureaucratic inefficiency or whatnot, SSA neglects to timely aquiesce to a published circuit opinion, as it apparently recognizes that it must do (see FN17) in cases where the opinion is contrary to national policy, what is an ALJ to do? Apply national policy contrary to the circuit opinion while waiting for an AR that does not have the force of law or regulation to tell the ALJ what the ALJ can find out by reading the opinion? Or does the ALJ apply the law of the circuit? The former raises a host of questions beyond the scope of this 10 minute break I'm taking. Still clear as mud to me, but, as I said before, I'm sure I'll find out all I need to know and more if I ever get the call.
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Post by Deleted on Oct 28, 2014 7:47:10 GMT -5
Still thinking on this issue and ran across an interesting example. One of our fabulous writers pointed out a recent Admin Message on the policy net, AM-14056. Now, before anyone screams, I am aware this is not new. It is just new to me.
AM-14056 3. Borderline intellectual functioning is a medically determinable impairment. Although it will not meet a listing and may not be disabling as a single impairment, it may be disabling in combination with other mental or physical impairments.
Here's what the 5th circuit has to say about that:
Acosta v. Apfel, 162 F.3d 93 (5th Cir. 1998) Acosta's argument is without merit because borderline I.Q. scores do not constitute a nonexertional impairment. See Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir.1990) (rejecting that I.Q. score of 72 supports finding of nonexertional impairment).
Selders v. Sullivan, 914 F.2d 614 C.A.5 (La.),1990. “Below-average intelligence alone does not constitute a non-exertional impairment.” Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir.1990). …[T]he vocational report stated that Selders functioned within the “borderline range of intelligence.” Although mental retardation qualifies as a non-exertional impairment,…
It appears, then, that SSA policy is in direct conflict with 5th Circuit jurisprudence and has been since at least 1990. That's 24 years and counting. Not only is there no AR on this subject/case, there has not been an AR issued by SSA in the 5th Circuit since 1999.
In this case, I actually agree with SSA, and think the Court may have missed something. What I should be doing is choosing a good case with clear facts and writing a decision calling Acosta v. Apfel into question, and ultimately, giving SSA counsel the opportunity to argue before the District and Circuit court that a change in course in warranted. How can I do that when I am instructed...not to even cite to the case?
I don't think they thought this through.
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Post by hopefalj on Oct 28, 2014 9:57:24 GMT -5
robg, I agree with your general principal that the Fifth Circuit appears to have lost something in translation or misused a term of art. The question is the practicality of challenging these opinions. A claimant is never going to challenge an ALJ's finding that BIF is a severe impairment, right? These appeals arose out of a finding that they were non-severe or through direct application of the Grid Rules if I'm not mistaken. Who would challenge your finding that BIF is a nonexertional or severe impairment? Why would OGC take that up?
On top of that, I'm not sure that the Fifth Circuit is saying that BIF cannot be or is not a severe impairment. In Selders (forgive my lack of formatting), the claimant did not have a diagnosis of BIF. The vocational report noted that he was performing in the borderline range of intelligence, but he did not have a corresponding diagnosis establishing an MDI. In Acosta, the claimant's lowest IQ score was 82, which is low-normal.
To me, it seems that both claimants were arguing that their below average intelligence caused limitations, and much like body habitus, ALJs can't just assign limitations based on what a claimant can realistically perform.
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Post by onepingonly on Oct 28, 2014 20:34:53 GMT -5
To be an impairment, it has to be an abnormality. What's the normal IQ in the 5th circuit? I have the same question about obesity.
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Post by Deleted on Oct 29, 2014 7:10:46 GMT -5
To be an impairment, it has to be an abnormality. What's the normal IQ in the 5th circuit? I have the same question about obesity. Ohhhhhhh......snap. I think Onepingonly just took a shot at my home. Fat and not very bright. That's us. Wait...maybe the reference was to the judges sitting on the 5th circuit? Yeah, let's say that. Hopefalj: Well, ...thinking...you are correct, the claimant would never appeal a finding of BIF as an impairment. So, if there is an area of the law that needs arguing, who is in the best position to start that process? I suggest,...us. Suppose I wrote a decision in which I said that the undersigned would have concluded that the claimant has a MDI of BIF, and would therefore be disabled, but the undersigned is prohibited from doing so by the holding in Acosta. Counsel for the claimant appeals, and OGC has a chance to argue the vaildity of their policy on the record, and maybe get a decision backing up their policy. But, in order to take the back-handed approach, I would have to reject the Agency's instruction to only follow policy and not cite District/Circuit Court case law. An example, I think, of an opportuinty that the Agency is missing by not seeing forest for trees. On, the 5th Circuit reasoning, I think something may have developed there inintentionally. The Selders case states that BIF is not an impairment, but mental retardation is. The Acosta case says BIF is not an impaiment on it's own. Hypothetical: 45 year old construction worker with a 72 IQ and a fractured spine. Why would I NOT say that the claimant has two fuctional impairments, BIF and DJD, resulting in an RFC of sedentary and non-skilled work? Good discussion....
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Post by bartleby on Oct 29, 2014 7:47:26 GMT -5
I think the problem is, is that to be a MDI, there must be a diagnosis by an authorized source. Therefore, we can not conclude that a low IQ score leads to a MDI of BIF. Someone must have used the term BIF in a diagnosis, hopefully based upon a low IQ score (just to make it simple). Obesity is supposed to be the same way. A Judge should not conclude a person is obese based upon weights and heights. If no authorized source has diagnosed obesity as an impairment, we should not be concluding so. Some Judges or writers do so as we are to discuss obesity in combination with other impairments... But, if it is not diagnosed somewhere in the reoords, we are overstepping our bounds by doing so. JMHO.
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Post by JudgeRatty on Oct 29, 2014 17:04:39 GMT -5
Wrong Bartleby. SSR 02-1p Obesity says: When the evidence in a case does not include a diagnosis of obesity, but does include clinical notes or other medical records showing consistently high body weight or BMI, we may ask a medical source to clarify whether the individual has obesity. However, in most such cases we will use our judgment to establish the presence of obesity based on the medical findings and other evidence in the case record, even if a treating or examining source has not indicated a diagnosis of obesity. Generally, we will not purchase a consultative examination just to establish the diagnosis of obesity. I agree. We routinely use the ruling to establish obesity by using the BMI Clinical Guidelines set forth in the ruling. Many medical records include the BMI but do not always include the actual diagnosis. I have seen remands where obesity was not spelled out as a diagnosis in the records, but the BMI was clearly within the obesity range--and the case was remanded for failure to consider obesity as a factor. This situation is similar but opposite to fibromyalgia. The fibro criteria in the ruling may indicate fibro is not a medically determinable impairment, but there may be diagnosis in the record. This is one of those situations where the writer can help explain the criteria used in the ruling versus the diagnosis by the claimant's doctor and the differences. I have not had this happen where a specialist is involved because they routinely know the criteria to establish the diagnosis. I have seen it happen frequently with family docs who simply carry the diagnosis along based upon the claimant's statement that they have fibro, or that there are no tender point examinations or other impairments were not ruled out. This is a tedious job and takes time to tease out what is what here.... impairment or not? Plus, throw in sources who are not "acceptable medical sources" to establish the diagnosis, and it gets time consuming.
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Post by bartleby on Oct 29, 2014 19:46:05 GMT -5
Wait, what, you mean our Reg's. rules, policies, directives, Act, Hallex, and Poms contradict themselves and need to be decided which ones win, or is there a need to interpret them? Hummmmm. I never thought of that before... So we now have diagnostic skills and abilities and directives telling us to do so. How very inconsiderate for those of us that have no medical experience. Now, I agree we must consider the impact that obesity may have on other severe impairments, ie, djd of weight bearing joints, but I still say that an ALJ can not render a diagnosis of obesity as that is reserved for the medical profession, just as the finding of disability is reserved for the Commish. You may establish obesity and definitely consider it in combination with other impairments, but without a medical diagnosis you should not list obesity as a severe impairment. You do not have a license to practice medicine nor do you have a right to diagnose. Hopefully your medical malpractice is in effect at the time you do so. Further, the standard for diagnosing obesity has evolved and is now based on girth vs height. Those measurements are not in the medical records. I mean I guess you can keep a tape measure around your neck for emergency diagnosis, but, naaahhh.
Oh wait, we are not to consider body habitus.....
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Post by bartleby on Oct 29, 2014 21:05:42 GMT -5
Perhaps you should check my agree rate with the Appeals Council.. Strangely the writers in my office think I am one of the best. Now, I must go eat my humble pie.
Oh, by the way, I said you would consider obesity and would arrive at a proper RFC, but you wouldn't note obesity as a severe impairment unless diagnosed by a physician. We do not make up diagnoses. Without a diagnosis you don't have a severe impairment to list in Severe Impairments. Not within your scope as an attorney or judge.
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Post by Deleted on Oct 31, 2014 7:48:02 GMT -5
Reading from afar, interesting conversation. But I think the arguments as to what we as an ALJ can/cannot do, rule/not rule, interpret/not interpret, etc miss the fault in the base foundation.
Herein lies the fault:
SSA is a national adjudication process. There is only one (1) SSA program with one set of rules/regs that are national in scope in application. So, a 52 year old truck driver with lumbar/depression in La Jolla should have the exact same outcome as a 52 year old truck driver with lumbar/depression in Newark. Theorectically. Remember there is only one set of SSA rules/regs and mathematically it would be impossible for the same inputs to have different outcomes. Thus: (Clmnt1 + evidence1)/Rules1 = c1(outcome) = (Clmnt2 + evidence2)/Rules1; a finite conclusion But this is never going to happen in real life. We end up with (Clmnt1 + evidence1)/Rules1 (not=) c1(outcome) (not=) (Clmnt2 + evidence2)/Rules(x+1)...... to infinity for each and every claimant. Thus there is an unknown "x-factor" integer being inserted somewhere in the process; i.e. at Rule(x+1). There is a "fault" in the equation if you do not mind. The fault lies not with the ALJ's and their interpretation and application of the SSA rules/regs. ALJ's are simply adding A + B. The fault lies in the different value (x+1) assignments being given to each individual case by higher authorities, i.e., federal courts. The federal courts, contrary to one (1) SSA, are more than 100 separate individual fiefdoms that freely and randomly assign variables to A, B, etc for each and every claimant. Example: (true scenario) Inside one state there are 2 separate federal courts. Their division runs down the middle of a street. Claimant 1 standing on one side of the street is 52 year old truck driver with lumbar/depression. Claimant 2 stands (quite literally 40 feet) away on the opposite side of the street. Clmnt2 is also a 52 year old truck driver with lumbar/depression. They smile and wave at each other. Both then turn and go to SSA for their disability determination. Now "only" and in stark reality, "only" based on where each claimant's feet actually touch earth on either side of an imaginary line dividing them by a mere 40 feet will a decision be made as to which one will receive disability benefits. This is regardless of the medical facts, evidence, testimony, entered in each claim. In theory in each claim clmnt1 and clmnt2 the ALJs apply Rules1 to get outcome C1. Simple enough. However at federal court levels, simply and only depending on which side of the street the claimant stands, and nothing more, the courts can unilaterally decide whether or not Rules(x+1) will apply. In the example I make, (true scenario) on one side of the street, the court says clmnt1 is not disabled if there is a generic description of other jobs available. On the other side of the street, simply based on where his feet touch the ground and nothing more, that other court says clmnt2 is disabled unless there is a specific listing of other jobs available. The individual courts, despite there being only one (1) set of national rules have literally changed the rules to their own liking. Court 1 uses Rules(x+1), court 2 uses Rules (x1+1), etc until court(Xn)= Rules(Xn) to infinity. All based NOT on evidence, not on testimony, but ONLY on where a claimant's feet physically touch earth. Where that touching of earth occurs, will determine which court has jurisdiction and then which Rules will apply to that specific claim...even though there is only one set of rules that should apply across the board. Is this a Nonsensical system of adjudication? Yes.
Solution? Remove the variable x-factor; i.e., the variability of the courts as to rules(x+1). One national appellate court that applies one set of SSA Rules1 for all SSA claimants regardless of where a claimant's feet touch ground. That way I as an ALJ can unilaterally and equally apply Rules1 to hear and adjudicate a claim that originates anywhere geographically just the same as ALJ(n) would do 1000 miles away. As there would only be one appellate court of review (rather than the current 100's of individual fiefdoms and rules as currently exists; case outcomes will become uniform. ALJs can, if desired, then easily cite to a standard set of rules, a standard set of court rulings that are uniformally applied across the board. ARs, SSRs, etc simply fade away as uncessary background noise from antiquity.
Mathematical Probability of Application? <0
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Post by sealaw90 on Oct 31, 2014 8:00:13 GMT -5
papajudge, This sounds like an argument to change the appellate jurisdiction from the U.S. District Courts to the Court of Federal Claims, the DC Court of Appeals, etc. In otherwords, have one federal court become the sole adjudicator of appeals to ensure unanimity. We do this for many federal programs, why not SSA? It would essentially require one statutory change. Open for discussion...
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Post by Deleted on Oct 31, 2014 8:13:00 GMT -5
Correct. And yes other agencies have done so.
VA claims are directed through one (1) federal court appeal of review for specific purpose: uniformity. The US Court of Appeals for Veterans Claims was specifically created a couple of decades ago for this purpose. Those appeals then go to one (1) federal court for review: The US Court of Appeals for the Federal Circuit. (Not to be confused with US Federal Circuit Courts)
OPM claims for federal employees follow similar route: OPM to MSPB to US Court of Appeals for the Federal Circuit; again for uniformity.
I see no practical reason why there cannot be a US Court of Appeals for Social Security Claims that then appeals to the the US Court of Appeals for the Federal Circuit. Centralization of one appellate system for one national set of SSA rules makes sense as opposed to the current system where hundreds of small individual federal court fiefdoms are making an incomprehensible mishmash and out of the uniformity of SSA claims. <object style="position: absolute; z-index: 1000;" id="plugin0" width="1" type="application/x-dgnria" height="1"><param name="tabId" value="{787104A2-B352-4370-9B8E-E3E2FB0B97C5}"></object>
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Post by redryder on Oct 31, 2014 8:21:07 GMT -5
The idea of a specific court of appeals for SSA claims has been talked about among the ODAR field personnel for years. This is not something SSA can do. DOJ with the federal courts has to take that step. They never have shown any support for the idea. To the contrary, they have fought against any plan that would increase or change their current jurisdiction (like get rid of the AC and go directly to USDC). They don't want the work or the additional expense. So as "simple" as your solution may sound, it is not going to happen. In these times of tight budgets, no one wants to have to commit his agency's resources for a new program unless it would arguably save a ton of money.
That is part of the logic behind programs such as the current push for national writing and pulling centers. One location with lots of employees versus same number of employees spread over lots of locations. It saves on rent and utilities. Can have fewer managers and lower grade managers. Ex. The techs who pull cases are no higher than a GS 9. So if they are all in a center, you don't need GS 13 supervisors for them like you have in the field where the GS oversees techs and writers who can be up to GS 12. Same for the move to electronic time keeping. If done correctly, it reduces the amount of time the administrative assistants are spending doing time manually. Many larger offices currently have 2 AA's, but that may be whittled down to 1 with this change. Frees SSA to put that FTE to another use.
So we can postulate and propose all we want, but the bottom line in these times is the budget. No agency is flush with cash, despite what we may hear about government waste.
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