Feb 8, 2012

Posner On Templates

     Judge Richard Posner sits on the 7th U.S. Circuit Court of Appeals. He is little known to the public but widely admired by attorneys for his original thinking and extraordinary writing skills. Judge Posner has taken a special interest in the Social Security appeals he hears. He finds the templates that Social Security is using for producing Administrative Law Judge (ALJ) decisions to be seriously troublesome. His most recent opinion on this subject is Bjornson v. Astrue, issued on January 31, 2012. The Bjornson case was remanded.
     Posner is not just admired by attorneys in private practice. He is admired by other judges. These templates are potentially a real problem for Social Security.
     By the way, Bjornson has a Chiari malformation. What is a case like this doing in the Court of Appeals, for goodness sake? Chiari malformations are a serious matter. This case should have been paid much, much earlier. Yes, I know there are people who have a Chiari malformation who have no symptoms but that does not change the seriousness of a Chiari malformation. Also, by the way, Chiari malformations aren't that rare.About one person in a thousand has a Chiari malformation.


Anonymous said...

This link worked for me:

"Elsewhere he did say that 'because of the persistence of the symptoms and the fact that she was on high dose opiates, that's not in my professional opinion based on reasonable degree of medical certainty that physically she would be unable to sustain unemployment at that time . . . . [W]e do not have any evidence physically.' But we don't know what this passage means."

Anonymous said...

Chiari malformations....can be asymptomatic or lead to headaches (Type 1). This type of malformation would not be disabling.

Anonymous said...

The problem isn't the templates; it is what is done with them.

Anonymous said...

As an attorney in the 7th Circuit, I can tell you that Posner comes up with some odd and contradictory decisions on Social Security cases at times. He also tends to play doctor when mental impairments are involved, although he is quick to chastise any ALJ he thinks is playing doctor.

Moreover, many of the judges in the 7th Circuit have issues with the stock credibility language in the templates because the language is somewhat vague and wishy-washy and because there are ALJs/decision-writers who fail to provide any significant credibility analysis of the claimant, relying solely or primarily on the stock language.

The templates are tools to make sure all the critical components are identified and included, but are only as useful as the individual who uses them. The key to a legally defensible decision is sufficient articulation so that the reader/reviewer can understand how the ALJ reached the conclusion. Most remanded cases are not sent back because the decision is "wrong", but rather because of insufficient articulation, which comes down to the priorities and abilities of the ALJ and decision-writer. You either take the time to draft a legally defensible well-articulated decision or you do a slap-dash job and hope it is not appealed (and accept the remand if it is), knowing that at the end of the day, what local management and the boys in Falls Church and Baltimore care about most is numbers. There is never enough time to do it right, but always enough time to do it twice.

Anonymous said...

"Most remanded cases are not sent back because the decision is "wrong", but rather because of insufficient articulation"

I respectfully disagree. Most remanded cases that I've seen are sent back b/c the Appeals Council or District Court has decided to play doctor and thinks the claimant should be paid, regardless of the reasoning and/or articulation used to deny.

Anonymous said...

Love Posner as a judge. To me, his opinions (Social Security or otherwise) always seem to make sense. I also like that he really can't be pigeon holed as liberal or conservative. A very smart judge, and it's always a pleasure to read one of his opinions.

Diane said...

To the person who believes Chiari One can not be disabling, you obviously have not done your research. I wish a headache was all I fought with everyday but in fact it is, headaches, pressure in my neck that is unbelievable, blurry and double vision, twitching, stuttering, loss of motor skills, numbness and pain in my arms and legs, dizziness, ringing in my ears, trouble breathing, ect. The headaches are in themselves disabling, I can not handle light or sound and it is worse than any migraine I've ever had, those are also symptoms of Chiari and memory loss. It is irresponsible of anyone to leave such a statement when you obviously have not even googled Chiari!

Anonymous said...

Diane, if Chiari must produce such symptoms each time for each individual then it would have listed at step three already.

Anonymous said...

@ Diane

"Type I involves the extension of the cerebellar tonsils (the lower part of the cerebellum) into the foramen magnum, without involving the brain stem. Normally, only the spinal cord passes through this opening. Type I — which may not cause symptoms — is the most common form of CM and is usually first noticed in adolescence or adulthood, often by accident during an examination for another condition. Type I is the only type of CM that can be acquired.

from: http://www.ninds.nih.gov/disorders/chiari/detail_chiari.htm

I did "google" the term and I think that the source cited is reputable. Your symptoms may be more severe, but there are some people who have a Chiari malformation, without any disabling symptoms.

Nobbins said...

This court opinion is rather damning. My own impression is that there seem to be many well compensated employees (ALJs, gov't staffers) who like to use a lot of complicated language to sound smart to hide their own ignorance. I can assume Posner has run into this more than a few times, and his patience with it is clearly thin.

Btw, Posner is not accusing the previous ALJ of "playing doctor," as some of you allege. Rather, Posner is accusing him of ignoring evidence and testimony from a doctor. I'm not sure what you think "playing doctor" is, but ignoring the advice of another doctor would be the last thing I would think of it to be.

Anonymous said...

"Posner is accusing him of ignoring evidence and testimony from a doctor"

And that's what happens in pretty much every unfavorable decision. There are some Dr records and opinions which make it sound like the claimant is on his deathbed; while other records from different doctors in the record, say there is nothing seriously wrong with the claimant. So, ergo, whichever way the ALJ decides the case, he/she will be ignoring/discrediting the records of the Dr. that conflict with the decision. This isn't nefarious or devious. It's just how the system works.

Rare is the case where 100% of the records all say the same thing (hint -- those tend to be the ones that are paid at the initial level)

J Posner is in fact playing Dr. because he has decided that the ALJ should have listened to the records that would have resulted in a pay and ignored the records that indicate that the claimant was capable of working.

Anonymous said...

it's all just a matter of semantics...Posner didn't like the decision and he is "playing doctor."

But, if the ALJ had simply analyzed the doctor opinion (given weight) rather than ignore, there would have been no reason for remand.

Nobbins said...

"There are some Dr records and opinions which make it sound like the claimant is on his deathbed; while other records from different doctors in the record, say there is nothing seriously wrong with the claimant."

That may be so, but I find no evidence of that in this court opinion. Posner says he finds no basis for the previous ALJs decision, which, if what you say is correct, would be supported by some other doctor's findings. If you do have evidence of that (such as the court opinion of the previous ruling), by all means, post it.