Aug 31, 2014

Social Security Not Faring Well In 7th Circuit

     From the online American Bar Association Journal:
In a published opinion issued two weeks after oral argument, the Chicago-based 7th U.S. Circuit Court of Appeals has overturned the denial of disability benefits to a woman who claimed severe pain because of a herniated disc.
The two-week turnaround by the author of the opinion (PDF), Judge Richard Posner, is quick even by his speedy standards, according to Illinois lawyer Barry Schultz, who represented the claimant. The 7th Circuit has been reversing a lot of adverse determinations in disability cases, particularly in the last year, he tells the ABA Journal. ...
The claimant in Goins v. Colvin had testified that the incessant pain, along with drowsiness caused by medication, limited her daily activities to eating, caring for her dogs, watching TV and sleeping. An MRI taken in 2010 after she applied for disability benefits revealed she had degenerative disc disease, stenosis, and a condition in which her brain tissue extends into the spinal canal. At an evidentiary hearing, the 250-pound woman said she had to quit a cafeteria job in 2008 because it was too strenuous, and she rated her pain an 8.5. An administrative law judge concluded she was exaggerating and denied benefits. The appeals court reversed. Posner took issue with the ALJ's conclusion and with two doctors who evaluated the claimant's medical records for the Social Security Administration ...
Posner said the ALJ should not have drawn adverse inferences based on the fact that the claimant had not sought frequent medical treatment. The claimant was indigent, Posner said, and had no health insurance....
Posner also criticized Social Security Administration lawyers for arguing the ALJ had accommodated the claimant's obesity by providing that her work duties could not require her to climb ladders, ropes, or scaffolds and only occasionally require her to climb stairs, balance, kneel, crawl, stoop, or crouch. "Does the SSA think that if only the plaintiff were thin, she could climb ropes?" Posner asked.

"If we thought the Social Security Administration and its lawyers had a sense of humor, we would think [the argument] a joke," Posner said.
     By the way, if you read the actual opinion, the woman had a Chiari malformation. That's what Judge Posner was writing about when he used the phrase, "a condition in which her brain tissue extends into the spinal canal." That's not just a routine herniated disk or spinal stenosis problem, although those can be bad enough. A Chiari malformation is a serious congenital problem at the base of the brain. If you know anything about the base of the brain, you know it is absolutely the last place in your body that you want any kind of problem.

15 comments:

Anonymous said...

And here's where I know Posner has no f'ing clue what we are dealing with as ALJ's...he states "the administrative law judge should have arranged for her to be weighed shortly before the hearing."

HAHAHAHAHAHA!!!! I'll just send the claimant over to my special claimant weighing station.

In a dream world, Posner makes a valid point about the nature of the agency...CE's etc, but given the production pressure and agency funding, this what we deal with and what you get. I aspire to live in Judge Posner's dream world...one where I can order significant and substantiated CE's along with a competent legal staff to write my decisions. Until then, I'll do the best with what we have. And I look forward to Judge Posner's future advocacy for adequate agency funding.



Anonymous said...

Please stop blaming the people who right your decisions for your failures. The cases are not sent back for bad writing. They are sent back because a Judge did not weigh the evidence properly or follow the law. It is the Judge who signs the decision. Everyone in the Agency is under pressure to produce, so that is no excuse for the ALJs to complain. The problem is that historically they did whatever they wanted and got away with it. Sorry but that party is over. Carry your own weight, properly weigh the evidence and give clear instructions covering ALL five steps concisely. Stop making moral judgments about the claimants.

Anonymous said...

And then spend hours combing through every decision word for word since they won't require that our writers know the difference between 'right' and 'write'.....But still get out 500-800.

Anonymous said...

Your pettiness just proves my argument. I was going to put in a NB but I said to myself, would someone really be that petty to think that i did not know the difference between right and write. Just goes to show you. It was a typo at 4 am, I am now properly chastised.

Anonymous said...

I'd love to have 2 scales in the hearing rooms and have the attorneys verify their accuracy (2- so heavy people can stand on both at once) but I would not dream of doing it if the agency did not require it as policy.

Anonymous said...

I don't know about your office, commenter #2, but if you look at reasons for remand (and the AC orders and original decisions, themselves), you'll quickly find that "inadequately discussed opinion evidence" or whatever it's called and "inadequately discussed B criteria" are way more often than not cases where the WRITER missed an opinion altogether. Not that the analysis was lousy, but that an opinion (or the B criteria themselves) were simply not discussed.

Should the ALJs do a much better job of guiding we writers? Could they note at least the more critical opinions and list a few things they specifically want talked about. Yeah.

But we writers have more time to review the record than anyone else in the process at ODAR, and we do our review just before/concurrently with writing the decision. ALJs review before the hearing (and if they do that well, they won't have too much time to review for a long time after the hearing). It is an error for an ALJ to miss an opinion, but it is an inexcusable one for a writer to do so.

You must be one of those paralegals that only writes about what's specifically in the instructions and maybe tacks on a bit about the CEs. Try looking at every page in Case Documents (sometimes things aren't exhibited, you know). See what you find and what happens to your agree rate.

Anonymous said...

9:09 - You sound suspiciously like an ALJ, and I am not a paralegal. You are so obvious. Yes, there are a fair amount of the types of remand you speak of and those are caught at the AC, or should be. Those are not the cases that are really at issue in Court remands generally speaking. Yes, the ALJs have it tough now. However, the first commenter blamed all the problems on the writers, and I just wanted to point out that there is PLENTY of blame to be shared. NB: From my mobile device, fat thumbs do not good writing make

Anonymous said...

ALJs have a responsibility to review the entire record. Don't blame the GS 9-12 writers when you miss something. You ALJs are paid $165K a year. Do your job and stop whining and blaming other people. Take responsibility for your own errors and sloppy work. Ultimately, you sign the decision!

Anonymous said...

The claimant in the Goins case had a documented herniated disc, was morbidly obese, and had a Chiari malformation. The ALJ found a medium RFC. Yes, medium. Take 3 bowling balls, put them in a sack, and lift that sack every 15 minutes throughout the day, five days a week. That's what medium work requires. And the claimant was a younger individual, whose application could have been denied with a sedentary RFC. Posner's decisions are flip and unrealistic at times in terms of what he thinks ALJs and writers have time to do, but when you look at the RFC's in those cases they often are outlandish. A defensible decision is a combination of the ALJ doing his or her job well, including a sensible RFC, and the decision writer doing his or her job well.

Anonymous said...

Seems like most of you are missing the point. Posner spotted a poor ALJ decision and corrected it. He didn't have to attack the SSA and their writers. But hey, it was deserved in this case.

Not sure why some of these writers are so thin-skinned. Writers that I know are reasonable and good. But their decisions are not always perfect. Same w/ ALJs.

But just like I own my own law firm, the buck stops w/ me on a case. I can blame my paralegals, hearing managers, writers, etc. internally. But externally it is on me.

So ultimately it is the ALJ responsibility and then the SSA. Writers should not be blamed.

Anonymous said...

A couple of observations. First, while Judge Posner's comment that the ALJ should have had the claimant weighed before the hearing is absurd, it is true that the courts have no idea how ODAR functions. The courts do not appreciate ALJ workloads, that ALJs have no control over the decision writers -- many of whom are not attorneys, but are what the Agency calls "paralegals," but are not real paralegals, and that an ALJ who demands quality work will get no support from ODAR management, many of whom are not attorneys and were certainly never litigators.

However, do not blame the courts for their lack of knowledge. ODAR management does not want the courts to know how hearing offices function. If the courts knew ODARs odd system of management and the many ways in which ODAR makes it difficult for ALJs (and writers) to do their job in a professional manner and, in fact, discourages professional behavior if it conflicts with production, the courts would be appalled.

In addition, an earlier comment noted the pressure ALJs are under to produce and dispose of cases. The Agency wants ALJs to dispose of 500-700 cases per year. In many hearing offices, however, those numbers are simply unattainable if an ALJ performs their duties in a thorough and professional manner.

Indeed, in the many years I was an ALJ, nobody ever clearly articulated to me how to review 500-700 cases, each of which averaged about 500-600 pages, develop the record as necessary, take notes on the file review, hold 500-700 hearings, each of which averaged about 1 hour, weigh the medical and non-medical evidence, write decision instructions in 500-700 cases, which each took about 1/2-1 hour, and review and edit 500-700 decisions.

While some offices may have smaller files, more dismissals, and various other reasons that make the production goal more attainable, in my experience, in my office, any ALJ who met the goals, did so by breezing through the files with little attention to detail. While not suggesting the ALJ behaved so in this case -I know nothing of the ALJ or the facts of the case, but emphasis on production over professionalism leads to bad decisions, claimant's getting paid who maybe shouldn't and, worse, claimant's not getting paid who should, and snarky comments by district and circuit court judges.

In my view, ALJs should not bow to Agency pressure to dispose of more cases than they can do in a professional manner. Again, I'm my view, the policies of former Commissioner Astrue, apparently Commissioner Colvin, DC Sklar, and Judge Bice encourage sloppy work, bad case law, and disservice to the public. Indeed, even the Social Security congressional subcommittee saw the danger in ODARs 500-700 production goal and unambiguously advised the Agency to stop, but ODAR continues full force -- if that's not telling, what is.

As long as ODAR continues on its present course, wants control over ALJs, and cares more for production than quality legal service to the public, there will be many such court decisions that put ALJs in a bad light.

Anonymous said...

Production, Production, Production. Live by the numbers, die by the numbers. That is what BHA/OHA/ODAR's death certificate will say.

Anonymous said...

This statement essentially nails it:
"the policies of former Commissioner Astrue, apparently Commissioner Colvin, DC Sklar, and Judge Bice encourage sloppy work, bad case law, and disservice to the public."

The acting/new COSS has no vision and seems to follow Bice and Sklar's leadership like a docile blind puppy.

Anonymous said...

I am an attorney writer and the author of the 9:09 statement. The last comment hinted at what I was getting at--writers are expected to average 1.0-1.3 decisions per day on a long-term basis. Regardless of type of decision (the days of DWSI are dead). Assuming your caseload looks something like ODAR-wide averages, one decision per day is significantly slower than the 4 hr/8 hr splits from DWSI. Plus, top mgmt has made it abundantly clear that quality is more important than production (for us).

ALJs still have absurd production goals. 500-700 per year, and what, like 2.3 dispositions per day?

Writers have the luxury of spending more time with the file. Period. If you're doing your job well, you should be able to find a lot of things ALJs miss (rightly or wrongly). Yeah it's their decision, and yeah a lot of ALJs are just horrible at doing their jobs properly, and yeah ALJ production expectations are unrealistic--but this is the system we have right now.

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