From a
Request for Proposals issued by the Administrative Conference of the United States (ACUS):
The study should particularly address the following issues: ...
- The impact of SSA’s treating physician rules on the role of courts in reviewing SSA disability decisions. The study should consider measures that SSA could take to reduce the number of cases remanded to it by courts.
- The role of the SSA Appeals Council in reviewing cases to reduce any observed variances in ALJ’s decisional outcomes, hearing lengths, and application of agency policies. Legal and empirical consideration should be given to the efficacy of an expansion of the Appeals Council’s already existing authority to conduct more focused reviews of ALJ decisions; how the Appeals Council can select cases for review; when review should take place (i.e. pre- or post-effectuation); and the scope and manner of review.
- Additional measures that SSA could take to identify and address issues posed by “outlier” ALJs, in order to reduce the observed variances, and to reduce other irregularities and improve quality in ALJ decisions. ...
The Conference will provide a consulting fee of $15,000 for the study plus a budget for expenses.
Or, you know, SSA management could just consult with its own frontline staff and claimants to learn what is and is not working. And, you know, use common sense.
ReplyDelete"use common sense" ???????
ReplyDeletei am in ogc and i have no idea how the AC functions. i get the plaintiff's brief, laying out all the deficiencies in the ALJ decision. it is exactly the same brief filed with the AC one year ago, after the ALJ decision. i must seek remand due to the same arguments, and the AC (usually) accepts remand based on my proposal. why does it take a federal court filing one year after the AC brief to get the AC to do what it should have done already?
ReplyDeleteMr. Hall’s blog wouldn’t accept my comments yesterday.
ReplyDelete“i am in ogc and i have no idea how the AC functions.”
It’s no surprise to read this. I wouldn’t want to extrapolate this declared level of ignorance to all or nearly all of OGC’s assistant regional counsels (ARCs). But it’s a good general match for the experience I had dealing with OGC intermittently for 20+ in my former job as nonattorney AC staff, when I was often on the other side of the OGC request for voluntary remands (RVRs) that anonymous of 8:53 implicitly refers to.
A simple answer that conceals complexities is that the courts and the AC call different strike zones. This is not a surprise to those practitioners who deal both with the AC and with civil actions. In fact, there have been CLE presentations at NOSSCR and elsewhere that talk about how some arguments work better in the courts than at the AC and vice versa.
It’s not always the courts that are more generous. For example, just as these CLE presentations (workshops/articles) have indicated, it can happen that the AC will enforce HALLEX procedural requirements where the courts will not.
This is not the place to attempt anything extensive about this. But it’s my belief that different approaches to harmless error account from much of the differences.
Harmless error reasoning is alive and well everywhere. Unless kept in check, harmless error reasoning can slide over into post hoc reasoning. I’m inclined to think that this is happens far more often at the AC than in the courts. So if we put aside those cases in which the operative factor is simply bad judgment, it can happen that the AC will affirm an ALJ’s decision (deny a request for review) based on reasons that are or at least seem to be good reasons—but to be reasons that are not to be in the ALJ’s decision.
When this kind of thing happens, the thought that can be hovering in the background is that the waterfall rate for civil action is quite low: only about 1 AC denial in 5 ends up in court. And there is a general belief, I think generally well founded, that the plaintiff’s bar tends to screen cases pretty hard before litigating. All this can lead to a let’s-take-a-chance approach at the AC for cases that are seen to be meritless.
A different way of presenting this personal impression is that in some instances an ALJ’s decision will be seen as well justified at the bottom line but marked by defects that may well not pass muster with the courts. In this kind of circumstance, the temptation is to see whether the case might end up in the 80% that don’t go to civil action.
Again, underlying all of this is a factor common to most human endeavors: there is always an ineluctable level of bad judgment. I do not exclude OGC.
JOA
this is very helpful, JOA, but not new information.
ReplyDeleteof course there are different standards that apply to a request for review vs. federal court remand. but i have practiced in a couple different circuits now, all with different views of harmless error. i have never submitted an RVR in some circuits, while in others the rate is multitudes higher.
however, some errors appear to be universally harmful, i.e., the rfc doesnt match the VE hypo and thus step five is undermined, that still get past the AC without much if any comment. i am not assuming the AC doesnt catch the majority of these errors. obviously, i dont see the cases that dont get filed in court.
but if you can agree that some errors are universally harmful, in the eyes of the AC and regardless of the circuit we are in, how do these errors get past the AC? if your position is that there is no such thing as an obvious, universal error, well, i guess that answers my original question of how the AC works.
sorry, couldnt resist the baseball analogy you presented: even if the AC and courts use different strike zones, how is it that the AC misses strikes straight down the middle, which are well within the zones of both the AC and the courts? i am not talking about pitches on the corners.
ReplyDelete