New and Material Evidence?

[Deleted]

For the sitting ALJ’s out there, I have something I want to vent about, and I’m curious if anyone else has had a similar experience.

When I get a case back from the Appeals Council, I generally have one of two reactions. About half the time, I say, “Oh, I see, I could have done that better.” The other half of the time, I say “What? What does that even mean? What?…How?…that doesn’t even make grammatical, much less legal, sense.” (The sad part is I am beginning to recognize the names of the AC judges. Before I read the decision I can flip to the back and read who wrote it and tell you if it’s going to be a “head-scratcher.”

Can you sense my frustration? So, for the past year or so I have gone through the trouble of submitting cases to the Appeals Council Feedback Initiative. I received a response yesterday which I’d like to vent about.

1. Tone. Does it have to be so adversarial, …and…snarky? I frequently find these remands to be capricious, and ridiculous. Sending these cases back over and over just increases backlog. But, I really do try to tone my language down to a professional level. (Sometimes I fail. I could do better, too.) With that said, if the purpose of this process is to produce better decisions, the combative attitude of ALJ vs. AC is not helping.
2. In the case I received yesterday, counsel for the claimant knew that the hearing did not go well. About a month post-hearing, counsel sent the claimant to a doctor to generate a report on ability to function. When counsel received the bad news, he attached the report to his appeal and cited “new and material evidence.”
3. My argument was that the AC should be focusing on the evidence present at the time of decision. . “… [T]he AC usually considers only the evidence that was before the ALJ at the time period through the date of the ALJ decision. See 20CFR 404.976(b) and 416.1476(b).“ HALLEX I-3-3-6 A. Specifically, stretching the definition of “new and material” to include evidence manufactured after the date of decision….well, I think most lawyers reading this probably see the problem there.
4. The response from the AC tells me this: Evidence is new if it is not of record. HALLEX I-3-3-6(B). Evidence is material if it involves the specific issues adjudicated by the ALJ or is directly related to establishing disability. Id.
5. Kick that around for a second. Anything not in the record is “new” and anything related to disability is “material.” I think that means that everything is new and pretty much any medical record is material. That is the most liberal possible interpretation of the statute. It is hard for me to think of a piece of evidence that would not be new and material under that standard.
6. I don’t think the AC quite understands how claimant’s counsel are using this to game the system and get a new hearing. If all you need is a medical record not previously exhibited, just manufacture one post hearing. Or, just send the claimant to the doctor, or even the E.R. It’s all new and material, right?
7. If we as a whole (Agency and ALJ) are really concerned about bringing down backlog and wait time, allowing claimants to return for de novo hearings over and over again is not helping. Allowing counsel for the claimant to generate and submit new evidence post-hearing, and rewarding them with a new hearing is not helping.

My vent is complete. I’m curious what the other ALJ’s have experienced in this regard. Thank you for your time.

[carrickfergus]

Here's some for ya, just off the top of my head:

I've had decisions remanded (and reversed) where the AC forwarded the file to THEIR OWN medical experts for yet another opinion. (And it turns out those aren't excepted so they count against the agree rate.)

Also had a remand pinned to me me when a prior ALJ decision was sent back to that ALJ, and meanwhile I had an intervening decision that wasn't even appealed.

A DIWC/SSDC decision (one decision) was sent back and counted as two remands.

There was also the case where a remand to another ALJ appeared as a remand under my dismissals.

I also had a remand where I found SA to not be a SI and it was remanded b/c the AC did find it to be a SI, and then wanted a new hearing conducted in order to discuss materiality.

Then there's the case where another ALJ gave an RFC of "less than sedentary" and the favorable decision was remanded to me (the prior ALJ was no longer in the area) b/c the RFC was deficient - even though that ALJ decision indicated that the clt would still have gridded favorably at a full range of sedentary.

[hopefalj]

Not a current ALJ, but I review my remanded decisions whenever they pop up.

- had a step 5 unfavorable remanded because the claimant possibly had earnings that could have been SGA.

- a decision was remanded for new and material evidence as well as failure to evaluate a medical opinion, which makes it count against me. Problem was the new and material evidence was that medical opinion, so it couldn't have been considered.

- decision remanded because a treating source opinion wasn't evaluated. The opinion in question? The claimant's musculoskeletal exam that noted full ROM and 5/5 motor strength.

- failed to address a treating source opinion that the claimant was disabled. This was found in the "S" part of a SOAP note and was pretty clearly the clsimant's allegation. The "O" was entirely normal, and the "A" contained a statement that there was no medical basis for his alleged pain and that the doctor didn't think he was disabled.

- remanded for incorrect calculation of a DLI by three months. Problem was there was no evidence in the record until over nine months after the correct DLI.

robg, I agree that gamesmanship is a huge problem with some reps, and there really isn't anything that can be done about it until SSA allows the record to be closed. It would be nice if there were a means to have the decisions reviewed again with having to go through the entire scheduling and development process again.

[Deleted]

Anyone ever get the feeling that the AC is just pulling X number of cases from Judge Y every quarter and finding a reason to send back Z% of those cases? It just gets to feeling very random. I wish I knew how the process really works.

I would prefer a letter from a person at AC stating "you could have done a better job with A, B, and C, but we declined to remand because your findings was reasonable based upon presented evidence, and your finding was due some small amount of defference." Dreaming.

[witty]

Interesting, tangential article in the online ABA Journal, August 21, 2014, discussing a 7th Circuit SSI case.

[witty]

Aug 21, 2014 10:06:42 GMT -5 witty said:

Interesting, tangential article in the online ABA Journal, August 21, 2014, discussing a 7th Circuit SSI case.

I guess this Posner decision illustrates the difficulties ALJs face in hearing and writing many decisions with what appears to be insufficient time allotted.  I am not an ALJ, so maybe my conclusion regarding what Posner's decision means is wrong. 

Anyway, the appellate oral argument can be heard via this link:

media.ca7.uscourts.gov/sound/external/nr.13-3729.13-3729_08_05_2014.mp3

[bartleby]

Robg, Down here we have a firm that has let it out that they never review or prepare for a case at the hearing level as they win half of them anyway and they save the review and preparation for the AC Remand.. There is no way that someone that doesn't do what we do should be allowed to review and bounce our decisions. If they want to have an AC, they should hire sitting Judges to do the job.. JMHO

Oh, by the way, I didn't read or hear the Posner comment, but he is a known ALJ hater..

[witty]

If you listen to the oral argument, he is showing no love for the ALJ or for the attorney representing SSA.  Ouch! Ouch! Ouch! Cringe-worthy.

[sandiferhands (old)]

Not to hijack, robg, but as a non-ALJ my question is: What are the practical repercussions to you as an ALJ if the AC disagrees and remands x% of your decisions?

[philliesfan]

Sandi:

Under new quality guidelines, if an ALJ wants to stay out of trouble, whatever that means, they need to have an AC agree rate of at 85% on cases where a decision is issued. Another downside is that we all have hundreds of cases on our dockets. AC remands are just another case that we thought we disposed of and now have to hear again.

[maquereau]

I have seen all of the above problems. I have actually seen worse from the AC. Yes, they have to make their numbers too, so there is a certain element of randomness or capriciousness in the decision to return a case. I had one returned to me that counted against me although the reason was "new and material evidence" that they admitted did not exist at the time the decision was rendered. I asked that the status be changed so that, even though I had the case on remand, it was not listed as due to my error. They said that it was too late to change the designation of the case - but that they would try to be more careful in the future. ... great

[gary]

The oral argument recording is interesting. I especially liked how the attorney for the claimant did not speak in rebuttal. In view of how well the argument had gone for the claimant there was no up side to arguing further. A lot of attorneys would not have made such a savvy move.

As to J Posner, he is very smart, and when he asks a question he not only expects it will be answered, but will do his best with follow up questioning to insure it is answered. He obviously felt the agency should have confessed error rather than defending this appeal. There was a little questioning by another judge (I do not know who) and that judge, though not nearly so dogged as J Posner, also did not seem impressed with either the agency's attorney or the ALJ.

A few months ago someone posted a link to an AALJ newsletter that included notes of a meeting in Chicago with J Posner. For those who missed it here is the link. The J Posner material is at the end.

www.aalj.org/system/files/documents/aalj_newsletter_________march_31____20141.pdf

[bartleby]

I truly believe that if the ALJ's were allowed to defend their decisions we would have a much higher success rate. OGC doesn't really have a handle on our area od law or what to stress. Many times they just acquiesce and just cave instead of putting up a case.. We might even have a higher success rate if the Attorneys in our office were to defent the decisions at the District Court. One of my best friends was a clerk for the District Court and all she handled were Social Security Disability cases. She said they used to sit around and laugh at us and point our grammar and spelling errors. When she became an ALJ it drove her crazy trying to do the right thing. It is impossible if one wants to keep the numbers up. Too many factors you have no control over. Posner would feel different if he had to do our job. My friend said she had about a week to work on each case...

[gary]

Based on the conversation with him reported in the AALJ newsletter, I think Posner would say if ALJs are overburdened, they need to hire more ALJs.

[shadow]

I had a recent AC reversal, not remand. It was a DA&A case, in which, based on quite a bit of medical evidence in the file, I found that the claimant met 12.09, evaluated under 12.04 I believe, but that DA&A was material to the claimant's disability. The claimant was described several places in the record as a "continuous" drug addict; methamphetamine and other substances, and it was clear, to me anyway, that drug abuse exacerbated his psychiatric symptoms and that the claimant would not be disabled but for substance abuse.

Over a year after my decision, the AC had a psychiatrist review the file, and this person opined that the claimant was listing level even without substance abuse. The AC reversed my decision based on this "new and material" evidence, and charged me with a reversal. The AC paid the claimant without suggesting that a representative payee be assigned. Remember, this claimant is an active, "continuous" substance abuser.

I try not to take these things personal, but sometimes it's hard.

[maquereau]

Shadow, what a bunch of crap! The AC misconceives their function when they hire out psychiatrists to see if they can undermine the ALJ decision.

[maquereau]

Aug 21, 2014 15:43:46 GMT -5 bartleby said:

I truly believe that if the ALJ's were allowed to defend their decisions we would have a much higher success rate. OGC doesn't really have a handle on our area od law or what to stress. Many times they just acquiesce and just cave instead of putting up a case.. We might even have a higher success rate if the Attorneys in our office were to defent the decisions at the District Court. One of my best friends was a clerk for the District Court and all she handled were Social Security Disability cases. She said they used to sit around and laugh at us and point our grammar and spelling errors. When she became an ALJ it drove her crazy trying to do the right thing. It is impossible if one wants to keep the numbers up. Too many factors you have no control over. Posner would feel different if he had to do our job. My friend said she had about a week to work on each case...

I have been lucky thus far with the District Courts reviewing my decisions. Undoubtedly, though, it is as you describe, clerks ridiculing the decisions from us that are on review. And no great wonder either. We hire vast numbers of people who have no concept of how to write a persuasive argument. Indeed, many of the writers seem unfamiliar with the rudiments of grammar and punctuation - to say nothing of higher level organizational concepts. When will management address the fact that WE ARE NOT GETTING THE WRITING SUPPORT WE NEED TO DO OUR JOB PROPERLY?!?!

[carrickfergus]

I recently had a VA case where I found 12.09 met but DAA material. The primary MH Dx given in the Tx notes was "substance abuse mood disorder." We'll see what the AC does with that. If they send it out to their own medical expert, I will throw up both my hands and just let them adjudicate the hearings.

[lolo]

I think they have a quota system and if not sending enough back, well....

[hamster]

Aug 21, 2014 12:25:58 GMT -5 philliesfan said:

Sandi:

Under new quality guidelines, if an ALJ wants to stay out of trouble, whatever that means, they need to have an AC agree rate of at 85% on cases where a decision is issued. Another downside is that we all have hundreds of cases on our dockets. AC remands are just another case that we thought we disposed of and now have to hear again.

Without double-checking, I believe my AC agree rate is 91%.

I do not agree often with AC remands, and I sometimes think that my colleagues there lack an appreciation of the realities at the hearing-level. But I do see remands from other ALJs who obviously did not know what they were doing--e.g., an RFC that is clearly not legally sufficient. So, there are incompetent ALJs out there--truly incompetent, not just someone who, on occasion, goofs up. That's why we have an AC, I guess.

As my friend Philliesfan wrote, "if an ALJ wants to stay out of trouble...." However, if an ALJ is conscientious and paid attention at the initial training, their AC agree rate is going to be close to 85%. It is only the incompetent and unconscientious ALJs who would have an AC agree rate that is so low that they're going to get noticed. IMHO, no hardworking and conscientious ALJ has anything to worry about, even if they aren't at or above 85%.

Best, Hamster