More enlightenment for consideration by Candidates

[decadealj]

Issue presented: What is the established law of the land? Statute, regulations and case law or SSA policy? The AC is the commish's policy wonk- let them reverse the law of the land with their policy authority!

[privateatty]

Feb 28, 2014 13:53:10 GMT -5 decadealj said:

Issue presented: What is the established law of the land? Statute, regulations and case law or SSA policy? The AC is the commish's policy wonk- let them reverse the law of the land with their policy authority!

Good question. At every Agency I have been or appeared before its the Statutes, case law and Regs that interpret the Statutes with a firm foundation in same.

Apparently at ODAR, y'all do things differently. Are there not Circuit Court decisions that point this out?

[decadealj]

When I took the oath with 50 classmates, our PD stated that we would apply the law of the Circuit in which we sat. There was much discussion in the class(with 2 AC judges in our class) whether we were bound to apply the ARs published by the agency to interpret the Cir Ct decisions. This caused me much difficulty because I often disagreed with the ARs and applied case law as I saw it. Led to some interesting cases in which the AR was flat wrong and the Courts agreed with me.

[trekker]

All I can say is that Judge Smith does what Judge Smith wants to do. Actually used that line in oral argument once (with the real name) when the magistrate asked me why the ALJ refused to follow orders from the AC and District Court.

[deltajudge]

8-)You are still required to be licensed to practice law to be an ALJ. You would assume that you have the ability interpret the law. Even congress according to the constitution cannot pass retroactive laws. The problem with this agency going back to the mid 80s is that it has slowly been taken over by people that are not lawyers, and have no idea how a quasi-judicial agency should be managed. Not only do they have no conception of the law or how it should be applied, they are totally incompetent as managers.

[hamster]

Deltajudge: When I went to the Military Judges' Course at the Army JAG School, in Charlottesville, VA, ten years ago, we learned there are two kinds of judges: judges that HAVE BEEN reversed, and judges that WILL BE reversed. This is true whether one is an Article III judge, a military judge, an immigration judge, or an ALJ.

All these folks were lawyers when they got hired, and all "have the ability [to] interpret the law." It's just that we sometimes get it wrong. The judges on the Appeals Council will sometimes get it wrong, too. But we're all lawyers. None of us are lay managers. We all have a conception of the law and how it should be applied.

Therefore, I don't see a problem here. I have confidence that most everyone tries to do their best and apply the law faithfully. When one doesn't, a bit of remedial training and/or the ignominy of a reversal is still better than banishment with hard labor to the Gulag.

Oh--full disclosure here: I have several reversals and remands under my belt. (WHAT were they thinking??!!)

Best, Hamster

[trekker]

When I was in law school, my physician spouse once said that "it's a law and there has to be a right and wrong answer." Hamster has a point. If every question had only one correct answer then we wouldn't need attorneys, judges and appellate courts.

[aljwatch]

And for Immigration Judges there generally is no shame in a remand, especially given that the law changes (or at least different courts' interpretation of the law changes) every time you blink!! I agree with Hamster that most judges try to apply the law correctly, and I believe that most can accept if an appellate body or a court sees the law differently without taking it personally. And remands or reversals are not a problem in agencies where management understands that this is not (necessarily) a sign of the judge's lack of intellectual or legal ability. Each reversal or remand needs to be examined in context.

[deltajudge]

8-)Hamster, I can only agree. It's not a perfect world. You are right, we can only do the best we can under the circumstances. and hope it is recognized.

[onepingonly]

Bear in mind that AC members are not ALJs. I have heard from at least one ALJ/longtime-agency-insider that not all AC members are attorneys. I have no firsthand knowledge on that. I know several ALJs who were formerly AC members. I've never heard of an ALJ becoming an AC member (I think the AC pay is less and I don't think they work anywhere but the DC/Falls Church area). AC review is an internal agency process that does not materially resemble appellate review in Article III land.

[papresqr]

Actually, the AC judges are Administrative Appeals Judges (AAJ's) and their pay scale is identical to that of ALJ's. However, they have GS-14 attorneys, Appeals Officers, who review the cases. From USAJobs:

"Incumbent serves as an Appeals Officer (AO) assigned to one of the Members of the Appeals Council. Exercises independent judgment and discretion as an individual reviewing recommendations to deny requests for review of decisions of Administrative Law Judges in claims for entitlement to benefits and issues arising under the Social Security Act. In cases where a request for review should be granted or the case involves major policy or other issues, incumbent forwards the case with an analysis and recommendation to the Appeals Council Member for consideration. The Appeals Officer position has quasi-judicial powers in deciding issues based on the record, as constituted."

[onepingonly]

Thanks for that clarification. They don't go through OPM, right? If pay is the same, I wonder why AC members opt to become ALJs. Perhaps for more geographic options. I've never seen a case where they issues a substantive decision. As I understand it, they can reverse and NOT remand (i.e., simply pay it). But then, if they did, there's no reason we in the provinces would hear about it. Again, thanks.

[trekker]

I have seen substantive decisions, at least as I define that word, from the AC. It is rare but I have seen well written decisions that explain to the ALJ precisely why his/her decision was legally inadequate. While submitting a request for review of an ALJ to the AC is not as formal as an appeal to DC, Circuit Court, or SCOTUS, there are standards of review and most of us outsiders who represent claimants write mini-appellate briefs outlining why we believe the case is appropriate for review. Also, I have seen detailed instructions to the ALJ on what s/he has to do upon rehearing the case. Finally, I have had cases where the ALJ won't follow those instructions. Maybe the AC was incorrect but often those are the cases that I would take to DC and get remanded from there. We are lawyers and we disagree, even with judicial opinions.

Here are the standards:

§ 404.970. Cases the Appeals Council will review. (This is for Title II cases. 20 CFR 416.1470 deals with Title XVI.)

(a) The Appeals Council will review a case if—
(1) There appears to be an abuse of discretion by the administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the general public interest.
(b) If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.
[45 FR 52081, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987]

[hopefalj]

Mar 4, 2014 20:00:40 GMT -5 onepingonly said:

Thanks for that clarification. They don't go through OPM, right? If pay is the same, I wonder why AC members opt to become ALJs. Perhaps for more geographic options. I've never seen a case where they issues a substantive decision. As I understand it, they can reverse and NOT remand (i.e., simply pay it). But then, if they did, there's no reason we in the provinces would hear about it. Again, thanks.

As someone who regularly checks the reasons for their remanded decisions, I can say I've seen a few reversals. They're not all that substantive (meaning short and sweet findings) because it usually only happens with a clear error, such as a refusal to apply grid rules or ignoring valid IQ scores in the 60s with corresponding adaptive deficits. Those were tons o'fun to write, too.

[decadealj]

trekker- problem is my experience indicates AC doesn't distinguish between "error of law" and "policy or procedural issue". I never quarreled with a "policy" call but when the AC cited "policy" as "law". The AC certainly has the authority to remand for "policy and procedure", i.e. HALLEX, POMS, etc. but to cite "policy" as "law" indicates to me that the AC(and OGC from their briefings to the field) don't know the difference. I can opine from much experience that no subject draws more disagreement between or among ALJs then whether an ALJ is bound to apply agency "policy" when the ALJ perceives a conflict with Circuit or published District Court precedent.

[trekker]

decade: would agree with your position on OGC -- I call it bang my head against the wall and have always been thankful when I had a USAA that cares. Maybe my experience is skewed by some of the AC decisions and DC work that I did when I lived in NoVA. The Alexandria DC was really good and thorough. I understand the difficulty in trying to argue what is policy, what deserves deference, and how to apply Circuit or DC precedent. My experience was that the vast majority of ALJ's would not look at published decisions unless there was an AR on it. We could start a whole new topic on agency acquience (which this thread is attempting to do at some level). I have just as big of a problem just getting the local offices to follow the POMS especially on some of the more obtuse issues. Another bang my head against the wall type of discussion. And I would agree that most AC decisions are very terse but I have seen some that do parse out the error of law. Yes they are few and far between, but they do exist. As I am answering your post, I am trying to explain to a claimant why it would be difficult to appeal the unfavorable decision that was written. I disagree with the decision but it is legally defensible and it would be extremely difficult to prove abuse of discretion. Claimants don't understand those nuances.