AC more active these days?

[superalj]

Is ithe AC remanding more cases lately? Not only have I noticed an increase, but the reasons are increasingly technical/harmless.

Any scuttlebutt would be appreciated.

[statman]

I have observed the same. My guess is there are less appeals so more time to nit pick.

[christina]

In my opinion yes and very detailed remands

[fowlfinder]

From my experience, yes they are more active. I have had two cases pulled from local hearing offices prior to hearing (but shortly after scheduling), and are currently pending at the AC. Both hearing dates we were given are long past now but the AC still has the cases for "quality control review."

[superalj]

With respect to detailed, very detailed when on own motion as they simply re-adjudicate the case giving no deference whatsoever to the fact finder.


When they remand UFs, mysterious and vague with even more and more remands that would be harmless in any other appellate court. I’m not saying we are perfect, but I can distinguish between a real remand and bush league, gotcha remand. I would estimate over half of the remands I see follow in the later for increasingly bizarre reasons like not admitting new evidence that were duplicates already in the record or not addressing a minor difference bw an opinion and a RFC that is not even close to have a bearing on the case.

It just seems that if the analyst or AJ disagrees with the decision, they will find some reason to remand forgetting that their job is to review for substantial evidence.

ALJs have always complained about the AC but it just seems to me that they are getting much worse in the last year or so.

[stevenq]

Jan 23, 2023 12:02:36 GMT -5 superalj said:

It just seems that if the analyst or AJ disagrees with the decision, they will find some reason to remand forgetting that their job is to review for substantial evidence.

Something I haven't seen discussed or know myself is: sure, substantial evidence is the standard of review in fed court land. But is that the same standard the AC is supposed to be using for ALJ decision review?

[nylawyer]

I've seen a bunch of what I'd call ticky tacky technical remands recently from the AC, but that was following a bunch of remands from the DC for the same ticky tacky issue, so I guess I can't really blame them, they are just saving the tax payers some money and bowing to the inevitable.

[hopefalj]

Jan 23, 2023 14:14:55 GMT -5 stevenq said:

Jan 23, 2023 12:02:36 GMT -5 superalj said:

It just seems that if the analyst or AJ disagrees with the decision, they will find some reason to remand forgetting that their job is to review for substantial evidence.

Something I haven't seen discussed or know myself is: sure, substantial evidence is the standard of review in fed court land. But is that the same standard the AC is supposed to be using for ALJ decision review?

Absent abuse of discretion, submission of “new and material” evidence, or error of law, yes, it’s a substantial evidence review (20 CFR 404.970 & 416.1470).

To the original question, I’ve found the AC to be largely the same in terms of analytical quality and basic legal competence throughout my decade-plus with the agency.

[arkstfan]

Jan 23, 2023 15:00:59 GMT -5 nylawyer said:

I've seen a bunch of what I'd call ticky tacky technical remands recently from the AC, but that was following a bunch of remands from the DC for the same ticky tacky issue, so I guess I can't really blame them, they are just saving the tax payers some money and bowing to the inevitable.

Had a remand for an RFC that included “no exposure to hazards such as…” with a list of examples.

Remand stated that a work place is full of hazards such as open doors a person might walk into and needed to get VE testimony for no hazards.

A VE had testified as to such restrictions.

Now our district court magistrate is really aggressive. Disagreeing with VEs testimony that a restriction would erode by some percentage but not eliminate the position. If DOT says frequent reaching and VE testified that they had placed people in those positions with that restriction, we get to do it again because by God the DOT says frequent.

[arkstfan]

I’m sympathetic to AC. It is rather clear they work under an expectation that they find around 15% of decisions requiring remand. They get filter down from magistrates who vary wildly from hesitant to send anything back to those who consider their role to do a de novo adjudication based on the record where they substitute their judgment for that of the ALJ. AC is supposed to react to gin up some sort of consistent policy in response to that.

It is by nature tedious work where you have no interaction with the witnesses nor the decision maker. There’s no follow up questions and no chance to seek clarification and you don’t see what the ALJ saw for in-person or video hearings.

The ALJ corps and writers for the most part evolve in reaction to remands. So each “hole” in decisions that provided reason to remand gets plugged. With each mutation in decision writing and hearing process and instruction drafting the bar for remand has to move lest they be left nothing but a rubber stamp approving all decisions except a few drafting goofs or procedural goofs.

In theory the remand rate should decline with these adaptations but it doesn’t.

Worse still award rates are falling so more cases are appealed but they are more solid than those from five years ago because everyone adjusts.

It’s a tough gig.

[ba]

Jan 30, 2023 1:45:50 GMT -5 arkstfan said:

I’m sympathetic to AC. It is rather clear they work under an expectation that they find around 15% of decisions requiring remand. They get filter down from magistrates who vary wildly from hesitant to send anything back to those who consider their role to do a de novo adjudication based on the record where they substitute their judgment for that of the ALJ. AC is supposed to react to gin up some sort of consistent policy in response to that.

It is by nature tedious work where you have no interaction with the witnesses nor the decision maker. There’s no follow up questions and no chance to seek clarification and you don’t see what the ALJ saw for in-person or video hearings.

The ALJ corps and writers for the most part evolve in reaction to remands. So each “hole” in decisions that provided reason to remand gets plugged. With each mutation in decision writing and hearing process and instruction drafting the bar for remand has to move lest they be left nothing but a rubber stamp approving all decisions except a few drafting goofs or procedural goofs.

In theory the remand rate should decline with these adaptations but it doesn’t.

Worse still award rates are falling so more cases are appealed but they are more solid than those from five years ago because everyone adjusts.

It’s a tough gig.

Perhaps if OGC engaged in offensive litigation when a magistrate or district judge applies an incorrect standard, that may help establish some consistency.

[Ace Midnight]

I suspect it would be cost prohibitive, but having someone defend DDS' determination at the hearing level would probably bolster support for resulting ALJ decisions at the next level(s) of review. There would be more concessions that DDS was flat out wrong (FF by agreement, rather than OTR). They would be authorized to negotiate for LO, particularly with unrepped claimants who do not understand, things the ALJ are either not authorized to do or cannot efficiently do (because of articulation and support requirements).

I'm not in favor of making it a trading marketplace like criminal court, but an advocate for the state agency's determinations would at least demonstrate some confidence in it.

[nylawyer]

Jan 30, 2023 13:21:49 GMT -5 ba said:

Jan 30, 2023 1:45:50 GMT -5 arkstfan said:

I’m sympathetic to AC. It is rather clear they work under an expectation that they find around 15% of decisions requiring remand. They get filter down from magistrates who vary wildly from hesitant to send anything back to those who consider their role to do a de novo adjudication based on the record where they substitute their judgment for that of the ALJ. AC is supposed to react to gin up some sort of consistent policy in response to that.

It is by nature tedious work where you have no interaction with the witnesses nor the decision maker. There’s no follow up questions and no chance to seek clarification and you don’t see what the ALJ saw for in-person or video hearings.

The ALJ corps and writers for the most part evolve in reaction to remands. So each “hole” in decisions that provided reason to remand gets plugged. With each mutation in decision writing and hearing process and instruction drafting the bar for remand has to move lest they be left nothing but a rubber stamp approving all decisions except a few drafting goofs or procedural goofs.

In theory the remand rate should decline with these adaptations but it doesn’t.

Worse still award rates are falling so more cases are appealed but they are more solid than those from five years ago because everyone adjusts.

It’s a tough gig.

Perhaps if OGC engaged in offensive litigation when a magistrate or district judge applies an incorrect standard, that may help establish some consistency.

Agreed. Far and away the worst remands to deal with are those where the District Court is applying some rule that does not exist, and the AC just remands it back without comment.

[surfdude]

Lately the trend has been, at least here on the West Coast, that U.S. District Court Magistrates and Judges mostly treat appealed unfavorable ALJ disability decisions, and related Appeals Council affirmances, as clay pigeons to be shot down for what seem to be "ticky tacky" reasons (as stated above) and/or claimant-favoring ideological reasons, rather than decisions to be assessed under the substantial evidence rule and current Social Security disability regulations. One recurring theme on remands is simply that "the claimant's subjective complaints were not sufficiently considered", even where the ALJ decision notes that such complaints are not well-supported by objective medical data, and that all or most of the medical opinions in the record, and certainly the most "persuasive" ones, do not support disability: isn't that the definition of substantial evidence?

I am not confident that appealed ALJ decisions are receiving enough capable and vigorous defensive representation in the Federal Court appellate process; OGC advocates in the process seem to consider it a victory to have cases remanded back to the ALJ for another look, so long as an outright reversal is avoided. There also has been a notable increase in the numbers of ALJ decisions being remanded by stipulation, without any formal decision, which should be very rare; to me this signals that SSA OGC advocates often are being cowed into submission and not "defending the case" with appropriate effort and ardor. I agree it would be refreshing to see some strategically selected appeals of District Court remands by OGC to the Circuit Courts.

Have the same patterns been evident in other regions of the country?

[superalj]

Hopefully it’s a west coast thing. I remember the shock and awe of the accept as true with respect to the claimants subjective allegations in one 9th circuit remand. In my district, OGC loses about 60 percent of the time, which sadly, isn’t bad for them.

I don’t worry as much about the USDC as we are a national program and follow our regs unless their is an AR. Plus, I’ve heard the USDC remand doesn’t count against us so I shrug my shoulders. It’s the increasing “ticky tacky” AC remands that bother me.

[jagvet]

I find them often annoying and sometimes amusing. The latest one was that there was noise on the DRAP, so AC figured that the hearing monitor must not have muted. AC remanded for a do-over. I listened myself--it was the claimant who was sitting in a car, not the hearing monitor. There was some ambient traffic noise, but everything was clear. Oh well. Easy notch in the remand belt for the AC judges!

[nylawyer]

Feb 1, 2023 14:25:06 GMT -5 jagvet said:

I find them often annoying and sometimes amusing. The latest one was that there was noise on the DRAP, so AC figured that the hearing monitor must not have muted. AC remanded for a do-over. I listened myself--it was the claimant who was sitting in a car, not the hearing monitor. There was some ambient traffic noise, but everything was clear. Oh well. Easy notch in the remand belt for the AC judges!

If I had gotten that one, I would have been cancelling a lot of hearings over the past couple of years. I frequently hear noise in the background of claimants who are in a car or out in the street or at work. But now you are telling me that it might get remanded for that?

[jagvet]

Feb 1, 2023 18:48:57 GMT -5 nylawyer said:

Feb 1, 2023 14:25:06 GMT -5 jagvet said:

I find them often annoying and sometimes amusing. The latest one was that there was noise on the DRAP, so AC figured that the hearing monitor must not have muted. AC remanded for a do-over. I listened myself--it was the claimant who was sitting in a car, not the hearing monitor. There was some ambient traffic noise, but everything was clear. Oh well. Easy notch in the remand belt for the AC judges!

If I had gotten that one, I would have been cancelling a lot of hearings over the past couple of years. I frequently hear noise in the background of claimants who are in a car or out in the street or at work. But now you are telling me that it might get remanded for that?

Yup.  

[hopefalj]

Feb 1, 2023 2:06:35 GMT -5 surfdude said:

Lately the trend has been, at least here on the West Coast, that U.S. District Court Magistrates and Judges mostly treat appealed unfavorable ALJ disability decisions, and related Appeals Council affirmances, as clay pigeons to be shot down for what seem to be "ticky tacky" reasons (as stated above) and/or claimant-favoring ideological reasons, rather than decisions to be assessed under the substantial evidence rule and current Social Security disability regulations. One recurring theme on remands is simply that "the claimant's subjective complaints were not sufficiently considered", even where the ALJ decision notes that such complaints are not well-supported by objective medical data, and that all or most of the medical opinions in the record, and certainly the most "persuasive" ones, do not support disability: isn't that the definition of substantial evidence?

I am not confident that appealed ALJ decisions are receiving enough capable and vigorous defensive representation in the Federal Court appellate process; OGC advocates in the process seem to consider it a victory to have cases remanded back to the ALJ for another look, so long as an outright reversal is avoided. There also has been a notable increase in the numbers of ALJ decisions being remanded by stipulation, without any formal decision, which should be very rare; to me this signals that SSA OGC advocates often are being cowed into submission and not "defending the case" with appropriate effort and ardor. I agree it would be refreshing to see some strategically selected appeals of District Court remands by OGC to the Circuit Courts.

Have the same patterns been evident in other regions of the country?

That type of failure to sufficiently discuss the 16-3p factors seems to be a 9th and 11th Circuit specialty (my experience is limited to only five of the circuit courts). I have not seen any judge issue a remand on that basis, but I have seen multiple RVRs (own motion remands) where the AC says as much.

What I have found with the courts in my area is that the decision to remand or affirm a decision is entirely judge-dependent. There are more than six judges, but three who have reviewed at least three of my decisions have affirmed every one of them and three have reversed every one of them. I can assure you the decisional quality hasn’t varied all that much between them.

The reasons for the reversals vary, but what I have essentially found is that if a judge doesn’t like your decision, doesn’t agree with your decision, or, most cynically, seems to believe everyone who files should be found disabled (because someone who wasn’t disabled would never file), then there is no limit to the absurd substantial evidence argument that could be made or perhaps even the highly technical legal error that avoids the necessity of even performing a substantial evidence review. Courts also really screw things up by applying incorrect or rescinded regulations, too. It’s great.

My AC remands/reversals tend to fall under three main categories: (1) some technical issue that warrants a remand, such as poor work up leading to an early medical record not being exhibited, the VE failing to specifically identify a potential conflict, new evidence coming in with an appeal that covers the time between the hearing and the decision, etc.; (2) where they sent the record to some octogenarian doctor that hasn’t practiced medicine in 20+ years for a post-hearing “expert” opinion that they adopt without any real analysis of it; or (3) some ridiculous or completely stupid reason like failing to consider a MSS buried in an exhibit full of duplicates when it was clearly evaluated but simply was strong cited, not explaining why i disregard some portions of an opinion when the decision clearly explains exactly why that was, or simply showing complete incompetence in applying our regulations. I rarely get them for anything substantive.

Frankly, the court and AC remands have gotten me to the point that I no longer worry about remands beyond my control. I double check for the technical issues, but I’m simply incapable of accounting for those judges that insist on remanding everything or AC buffoonery.

[anderson]

Feb 1, 2023 14:25:06 GMT -5 jagvet said:

I find them often annoying and sometimes amusing. The latest one was that there was noise on the DRAP, so AC figured that the hearing monitor must not have muted. AC remanded for a do-over. I listened myself--it was the claimant who was sitting in a car, not the hearing monitor. There was some ambient traffic noise, but everything was clear. Oh well. Easy notch in the remand belt for the AC judges!

Interesting. Whenever I occasionally determined someone was in a car (or, one, at a bar) that was the end of the hearing and reschedule--because I didn't think they could have a fair hearing.