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Post by justasecuritymonitor on Oct 12, 2020 9:30:40 GMT -5
I follow appeals of my decisions, as well as own motion reviews, mostly now for amusement rather than enlightenment. Anyway, to hopefalj's point - I issued a denial, it was appealed, and the AC sent the file to an ME who opined clt equaled a 12.05 listing (which I thoroughly considered). AC didn't weigh the opinion against the rest of the evidence, they just reversed the decision. I was annoyed, yes, but still ok/fine/whatever, good for the claimant and rep. But then to top it off, it counted against my agree rate. Thread creep warning! It's infuriating to me that the AC's med staff reversals count against agree rates, when remands based on new evidence don't count. Isn't the AC ME's opinion "new evidence"? |
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Post by justasecuritymonitor on Oct 12, 2020 9:41:04 GMT -5
Well, since I'm taking the time to review the evidence, take testimony regarding the record, make a decision (which I like to think I'm taking seriously), draft instructions for someone to write and support my decision, and then go through the decision before signing my name to it, you'll have to forgive me for being annoyed when a couple of AAJs ship the record off to some doctor that was training residents at Parkland when Kennedy was brought in, get an incoherent report from said doctor, and then use that garbage to say my decision isn't supported by substantial evidence without even bothering to review the decision. I've seen them effectively make up evidence to support an ME's opinion ("Well, we know the listing requires these findings and the record doesn't have the specific findings required by the listing, but the doctor said the condition is pretty bad, so we find that's basically the same thing as having the required findings to meet the listing"). They've completely butchered the refs and misapplied them, and they get to do this without any review or accountability whatsoever. It's seems a little odd to me that you'd be more bothered if they sent a decision back to you that tried to get you to agree versus just disagreeing with you. At least with the former you have the decisional independence to disagree with them and actually make a decision. Perhaps it would be less bothersome to me if they showed even basic competence in doing it, but HALLEX and the Regs apparently don't require that. In my experience so far, they've certainly not voluntarily shown any. I have had cases sent back to me for not addressing an opinion (actually not an opinion as we define them) when an analysis of it was included in the decision. The AC seems to really be struggling with applying current medical evidence rules. I wish more ALJs would use the provisions in HALLEX I-2-1-85 to request "clarification" of AC orders when the AC screws up - for example, by remanding a current rules case for not evaluating an "opinion" that the "claimant is disabled" when carrying out the cure bullet in that order would be a violation of the regulation that says "we will not provide any analysis about how such evidence was considered in a decision, even under [the regulation that requires us to evaluate opinion statements]." I also see the AC CONSTANTLY stepping on the "light work = 6 hours standing/walking" rake and remanding for "unresolved conflict" when an RFC limits to, say, 4 hours s/w but doesn't explain how that's "not a conflict" with the VE's testimony saying the claimant can do light jobs. The regulation defining light work specifically says a job can be light "if it involves sitting most of the time" with enough pushing/pulling to exceed sedentary. I see the AC get this wrong FAR more than they get it right. |
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Post by hopefalj on Oct 12, 2020 15:12:00 GMT -5
I have had cases sent back to me for not addressing an opinion (actually not an opinion as we define them) when an analysis of it was included in the decision. The AC seems to really be struggling with applying current medical evidence rules. I wish more ALJs would use the provisions in HALLEX I-2-1-85 to request "clarification" of AC orders when the AC screws up - for example, by remanding a current rules case for not evaluating an "opinion" that the "claimant is disabled" when carrying out the cure bullet in that order would be a violation of the regulation that says "we will not provide any analysis about how such evidence was considered in a decision, even under [the regulation that requires us to evaluate opinion statements]." I also see the AC CONSTANTLY stepping on the "light work = 6 hours standing/walking" rake and remanding for "unresolved conflict" when an RFC limits to, say, 4 hours s/w but doesn't explain how that's "not a conflict" with the VE's testimony saying the claimant can do light jobs. The regulation defining light work specifically says a job can be light "if it involves sitting most of the time" with enough pushing/pulling to exceed sedentary. I see the AC get this wrong FAR more than they get it right. To your first point re: clarification, there are two problems with this. First, it's an extremely narrow set of circumstances where it's appropriate to seek clarification. Obvious screw up via policy misconstruction is not one of the listed examples. Second, it relies on management to grasp the issue and figure out the issue and correctly handle it. If there's one group that can make the AC decisions look good in comparison, it's management and their decision making. |
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salvo
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Post by salvo on Oct 13, 2020 15:04:21 GMT -5
There's an alternative to requesting clarification. Per HALLEX I-2-1-88, there's the AC Feedback initiative, which allows for submissions regarding AC orders that don't meet the clarification standard but "...demonstrate inconsistent application of policy by the AC, or while technically correct, contains only insignificant errors that would not likely result in a court remand".
I've actually been having some luck with this. It only requires a brief paragraph or two to submit, and I can confirm that they're actually reviewing these and taking some action. Just got confirmation today regarding a submission regarding an AC order where they remanded based upon my failure to consider the correct DLI, but the DLI was correct at the time of the decision, and the reason they AC thought it was wrong was they reviewed the case a year and a half later, and the claimant's DLI had changed because they *returned and continued to work* shortly after the initial decision was issued (apparently, checking the earnings records was a bridge too far for them).
I've decided to start submitting the crazy remands like this, because, well, squeaky wheel gets the grease and all. Maybe if they get enough complaints they can see some of the reasoning the AC is applying and correct.
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Post by lurkerbelow on Oct 13, 2020 16:29:09 GMT -5
Salvo, thanks for the idea. I'll pass a suggestion about the HALLEX on "special" remands to the resident ALJ. Some would probably jump at the chance.
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Post by shoocat on Oct 13, 2020 22:22:47 GMT -5
There's an alternative to requesting clarification. Per HALLEX I-2-1-88, there's the AC Feedback initiative, which allows for submissions regarding AC orders that don't meet the clarification standard but "...demonstrate inconsistent application of policy by the AC, or while technically correct, contains only insignificant errors that would not likely result in a court remand". I've actually been having some luck with this. It only requires a brief paragraph or two to submit, and I can confirm that they're actually reviewing these and taking some action. Just got confirmation today regarding a submission regarding an AC order where they remanded based upon my failure to consider the correct DLI, but the DLI was correct at the time of the decision, and the reason they AC thought it was wrong was they reviewed the case a year and a half later, and the claimant's DLI had changed because they *returned and continued to work* shortly after the initial decision was issued (apparently, checking the earnings records was a bridge too far for them). I've decided to start submitting the crazy remands like this, because, well, squeaky wheel gets the grease and all. Maybe if they get enough complaints they can see some of the reasoning the AC is applying and correct. I don't typically find out the basis for remands until prepping for the hearing. Of course, I could check what cases have been remanded on a daily basis and what the remand was based on so I could request this, but I don't have the time to do that. |
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salvo
Full Member
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Post by salvo on Oct 14, 2020 14:06:27 GMT -5
There's an alternative to requesting clarification. Per HALLEX I-2-1-88, there's the AC Feedback initiative, which allows for submissions regarding AC orders that don't meet the clarification standard but "...demonstrate inconsistent application of policy by the AC, or while technically correct, contains only insignificant errors that would not likely result in a court remand". I've actually been having some luck with this. It only requires a brief paragraph or two to submit, and I can confirm that they're actually reviewing these and taking some action. Just got confirmation today regarding a submission regarding an AC order where they remanded based upon my failure to consider the correct DLI, but the DLI was correct at the time of the decision, and the reason they AC thought it was wrong was they reviewed the case a year and a half later, and the claimant's DLI had changed because they *returned and continued to work* shortly after the initial decision was issued (apparently, checking the earnings records was a bridge too far for them). I've decided to start submitting the crazy remands like this, because, well, squeaky wheel gets the grease and all. Maybe if they get enough complaints they can see some of the reasoning the AC is applying and correct. I don't typically find out the basis for remands until prepping for the hearing. Of course, I could check what cases have been remanded on a daily basis and what the remand was based on so I could request this, but I don't have the time to do that. Neither do I. The orders I've submitted to the ACFI have been after the remand hearing. In fact, the HALLEX even states these are for cases where the remand order is clear, but wrong or pointless, which means we hold the cases anyway. HALLEX even states to continue with the hearing regardless, and don't put anything on pause. The idea is to send these crazy remands up to people who are supposed to be paying attention to them, so that they can prevent more of the same in the future. I figure, it only takes a couple paragraphs, and it beats griping about these among ourselves (which is guaranteed to accomplish nothing), and if they receive a lot of the same issue, maybe something can get fixed. |
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Post by justasecuritymonitor on Oct 15, 2020 17:06:16 GMT -5
I've wished for years that they would set up an email alert that notifies the ALJ and DW when a case of theirs has been remanded, with a link to the file. That can't be that hard, right?
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Post by lurkerbelow on Oct 15, 2020 19:25:41 GMT -5
I've wished for years that they would set up an email alert that notifies the ALJ and DW when a case of theirs has been remanded, with a link to the file. That can't be that hard, right? In theory. In reality this is probably why IT positions require knowledge of "legacy systems" |
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Post by hopefalj on Oct 15, 2020 20:58:29 GMT -5
I've wished for years that they would set up an email alert that notifies the ALJ and DW when a case of theirs has been remanded, with a link to the file. That can't be that hard, right? It shouldn't be, but they probably figure accessing that link via DART isn't difficult for DWs or ALJs. They're not going to put any effort into making things easier for us. |
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Post by Legal Beagle on Oct 19, 2020 17:56:31 GMT -5
The AC automatically send back a huge number of Lucia cases at one time, surprising everyone, including OCALJ. This resulted in the order that all of them be assigned to the HOCALJ. What I have seen is in some cases, the ALJ in the original case had been appointed way long before Acting Commish Colvin came on the scene, so there was no issue that the ALJ was appointed by a sitting Commish.
It was an easy answer to the question, had they wanted to do something other than just throw it back - all you have to do is look at the ALJ's ALJ number . . . anybody appointed before or have an ALJ number under about 3100, was properly appointed. Some cases had other additional reasons for remand, but some were solely because of the Lucia objection. Talk about a massive waste of time, taxpayer money, and usually, giving claimants false hope.
But then, that is what they do on no-show dismissals that are appealed - they just remand, without even seriously looking at the record. Thus adding a few more months of limbo, when the claimant could have just re-filed and asked that the prior claim reopened, and had a decision in a lot less time.
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Post by shoocat on Oct 20, 2020 16:47:05 GMT -5
The AC automatically send back a huge number of Lucia cases at one time, surprising everyone, including OCALJ. This resulted in the order that all of them be assigned to the HOCALJ. What I have seen is in some cases, the ALJ in the original case had been appointed way long before Acting Commish Colvin came on the scene, so there was no issue that the ALJ was appointed by a sitting Commish. It was an easy answer to the question, had they wanted to do something other than just throw it back - all you have to do is look at the ALJ's ALJ number . . . anybody appointed before or have an ALJ number under about 3100, was properly appointed. Some cases had other additional reasons for remand, but some were solely because of the Lucia objection. Talk about a massive waste of time, taxpayer money, and usually, giving claimants false hope. But then, that is what they do on no-show dismissals that are appealed - they just remand, without even seriously looking at the record. Thus adding a few more months of limbo, when the claimant could have just re-filed and asked that the prior claim reopened, and had a decision in a lot less time. With no show dismissals, I have found that using something other than the canned language can help. If there was an acknowledgement of hearing or any phone contact or a prior appearance, etc., it can show knowledge of what the importance of appearing was and get the no show remand upheld. As a result, I add this in. I figure that the more I can point out to the AC about why I dismissed it keeps them from remanding. This is a small subset of no shows but it can help. |
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Post by carrickfergus on Nov 9, 2020 18:32:22 GMT -5
Expect this to end up at the SCOTUS, since there is disagreement among the circuits. It will be interesting to see if the court issues a narrow ruling, or takes the chance to pull on the loose threads left by Lucia and Seila. Game on |
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Post by Crash Landers on Nov 9, 2020 19:03:39 GMT -5
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Post by nylawyer on Nov 9, 2020 19:36:24 GMT -5
I would guess mostly likely any ruling would be on the narrow issue of whether one can raise an appointment challenge for the first time at the District Court level. But, I have to admit I feel better with the prospect of a Biden Justice department arguing the case than I would under the current administration. |
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Post by rp on Nov 17, 2020 21:39:07 GMT -5
Hardly an Appointment Clause challenge.
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