Social Security essentially requires that something it calls Findings Integrated Template (FIT) be used in drafting decisions for Administrative Law Judges (ALJs). FIT employs a lot of what lawyers call boilerplate to justify denials. Anyone familiar with FIT can tell that the FIT boilerplate is no longer working at the 7th Circuit Court of Appeals. It is particularly not working for Judge Posner on that Court. In case you are not familiar with him, Judge Posner is an extraordinary writer (although this opinion is not one of his best efforts). Other judges do not always agree with Judge Posner but they always pay attention to what he has to say.
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ReplyDeleteJudge Posner wants the ALJ to explain what claimant statements he/she believed/did not believe and state why or why not. The boilerplate language does not give the appeals court anything to review.
ReplyDeleteHe also wants ALJ's to better understand the nature of mental impairments.
Finally, he is tired of the government attorneys trying to save a deficient decision by mis-applying harmless error. The unfavorable decision stands on its own. The Office of General Counsel cannot save a deficient decision by pointing to relevant evidence that the ALJ failed to consider.
This really had nothing to do with FIT. I do appreciate you posting it though. The 7th circuit makes its oral arguments available and boy this day was a dozy. The judges were outraged by post hoc straw man arguments, outrageous decision writing and the specific credibility boiler plate spiel. If you want a lesson on how not to present a case orally to the 7th circuit, listen to the poor agency attorneys. No one has mounted such eloquent and frank attack on this shell game as Judge Posener - he even refers to the Process Unification training. A beam of light. And Posner suggested that the agency was not learning from their errors, wondered aloud if there was agency training for these errors and took the agency to task. It was painful to hear and long overdue for articulation. Advocates owe Judge Posner and his colleagues a great debt in my opinion.
ReplyDeleteGuess I missed something. Would someone be so kind as to give the case name and citation. Thank you.
ReplyDeletei would be very interested to know what training aljs receive, as well. as it is now, the appeals process is a crapshoot and totally depends on which alj you get.
ReplyDeletethe same handful of aljs produce the vast majority of federal appeals and they never change their methods or reasoning despite clear guidance and scathing criticism from the federal courts. but ssa can never get rid of these aljs due to some vague notion of upholding their "judicial independence." they are agency employees and i say the ones who simply don't understand the law should be fired for poor performance.
The Agency doesn't care about the law. ALJ's are instructed (time after time) to follow the Agency's policy, not the law. The two are sometimes mutually exclusive. If the ALJ does follow the law and it is a denial, the AC will remand it.
ReplyDeleteI'm just amazed at the list of opinions issued by the 7th Circuit that are Social Security cases. I practice in the 5th Circuit. I compared the Practitioners' Guides between the 2 circuits. The 7th says you will have oral argument unless there is a compelling reason not to have it. The 5th weighs its practice against oral argument - the practice guide tells you that only about 20% of cases are granted oral argument! And I don't have the statistics, but I can tell you that the chances of getting a real written opinion out of the 5th is pretty, pretty slim. They issue maybe one published opinion a year; the rest are unpublished and/or per curiam. Surely their dockets cannot be that dissimilar?
ReplyDeleteI think I'll start reading these cases. I may learn some good arguments. (adjusting them for my circuit, of course)