The Fourth Circuit Court of Appeals handed down an interesting opinion last week in the case of Mascio v. Colvin. Here are a few excerpts:
Here, the ALJ has determined what functions he believes Mascio can perform, but his opinion is sorely lacking in the analysis needed for us to review meaningfully those conclusions. In particular, although the ALJ concluded that Mascio can perform certain functions, he said nothing about Mascio’s ability to perform them for a full workday. ...
[W]e agree with other circuits that an ALJ does not account “for a claimant’s limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.” ...
Mascio’s argument stems from the ALJ’s use of the following language in his opinion:
After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
We agree with the Seventh Circuit that this boilerplate “gets things backwards” by implying “that ability to work is determined first and is then used to determine the claimant’s credibility.” ...
[A] claimant’s pain and residual functional capacity are not separate assessments to be compared with each other. Rather, an ALJ is required to consider a claimant’s pain as part of his analysis of residual functional capacity.
21 comments:
SSA's refusal to slightly adjust their boilerplate opinions leads to continued judicial mocking. And the agency is too big to care. I'm just a cog and I'll do what I'm told instead of what is right even though I am an adult and know the difference. I value being a cog more than a human. What is the antonym of integrity?
Antonym of Integrity is
1. Corrupt
2. Dishonest
3. Deceitful
Shall the new ALJ salutation be "The Dishonorable _______ (fill in the blank)"...
Shall the new ALJ salutation be "The Dishonorable _______ (fill in the blank)"...
ROFL... Yeah it should.
I'm glad the circuit courts keep calling them on those common errors. The boilerplate is being used as an excuse by some not to do important analysis in deciding claims. The mistakes the adjudicator made in the reported case are ones I see often.
-Impaired concentration and attention cannot just be represented by limitations to simple or unskilled work, because not paying attention or maintaining concentration can get you fired from simple unskilled work just as fast as other types.
-A report of daily activities that only reflects about an hour of mild physical exertion a day does not destroy the credibility of a person who is claiming they cannot sustain the duties required in a 40 hour work week.
As the numbers have grown, I think, the Agency has try to generic language in a world of specific facts to give specific decisions. What comes out is sausage. It may be fair for 44%... but it is not fair for the 80%+ that are disabled.
I will use case in brief tomorrow. My case involved RFC "10 pounds" or less and the ALJ saying that client could do light work.. except ALJ reclassifed the "light" jobs in his decision as "sedentary". Also one job is SVP 4. The ALJ took 32 months (one AC remand) to write the decision and the AC took on the last ALJ dod 42 months to agree.
That kind of delay is lethal. I would send that to my congressional representative and ask them to use it the next time an oversight hearing occurs. What clearly impacts the problem is total lack of responsibility, accountability by the Appeals Council. If they were applying the law, and remanding and reversing accurately, (or even reading more than the first paragraph of an appeal), it would impact most ALJs. For every case like Mascio, there are a hundred equally egregious decisions that never see the light of day.
The ALJ decision under discussion in this case is over 4 years old. SSA adjusted the boilerplate language that so offended Judge Posner a long time ago. I've always thought that the language was unfortunate in that it gave the appearance("implied" as Posner said) that ALJs were doing what Posner accused them of doing, but in fact and in my experience, ALJs were not deciding RFC first and then assessing credibility.
@ 1:58
and for being such a sharp guy, Posner really let a pretty silly use of formatting interpretation masquerade as his basis for being upset with the credibility discussion in that opinion, when in reality it was just a poor credibility discussion.
So I place my claimant credibility assessment before I delve into the medical and opinion evidence, does that necessarily mean I decided the credibility before I did any analysis? Well, I guess if you are being super anal about formatting of the decision, you would say yes because it appears first. But what if that analysis references the medical, vocational, opinion, ADL, etc. etc. evidence used to determine the credibility of the claimant's statements and just happens to be placed before the deep discussion of that other evidence in the actual decision? Are you really going to be that stringent on formatting to say that the credibility determination was made before the other analysis? Only an idiot would.
What really rustled Posner's jimmies, and what he spends much more time on in that opinion, is that the credibility discussion was solely (right?) the vague boilerplate paragraph that FIT dumps into every decision. Had the writer done a good discussion specifically on the credibility of the claimant's statements somewhere after that boilerplate paragraph, I would wager a tidy sum Posner wouldn't have been upset.
I did find this opinion an interesting read both for the condemnation of that classic nonsensical boilerplate language and the conclusion that ALJ's can't simply dispose of CPP allegations with a "simple, routine" limitation alone.
What bugs me about the opinion is that this doesn't strike me as a particularly flawed ALJ decision at all. The 4th Circuit basically identified four mistakes within the ALJ decision:
1) failure to specify whether RFC limitations applied to a workday or an entire day.
2) an incomplete sentence that "leaves hanging" a weight analysis for a DDS RFC
3) the absence of a CPP limitation based on a finding against cl's credibility without explaining whether the ALJ found cl's allegations completely incredible or only partially incredible.
4) the aforementioned boilerplate
While I obviously dont have access to the ALJ decision, "1" and "3" seem like incredibly petty complaints and "2" was probably harmless error. For "1", the CE opinions that ALJ's typically cite conclusions from usually do specify state in their fine print that they apply to an 8 hour workday, at least in my experience. Even if they didn't, isn't it obvious from the context? For "2", yes the writer blundered and forgot to assign a weight to a DDS opinion that found cl could perform Med work. Doesnt the fact that the ALJ went with the other DDS opinion instead and assigned a "Light" RFC make that the only opinion that really needs to be explained? There doesnt appear to be any more favorable opinion for the ALJ to consider. And as for "3", the 4th Circuit clearly doesnt disagree that the ALJ was within their power to find cl's alleged limitations incredible. In fact it even volunteers that the ALJ could have appropriately excluded CPP limitations from the RFC if the ALJ had just specified that any CPP limitation "does not affect (claimant's) ability to work"(which is striking in that the 4th circuit is suddenly endorsing conclusory determinations.)
If i'm misinterpreting the 4th Circuit's decision here, let me know (i dont work on Fed appeals). But if I'm right, and the cl's appeal was more pedantic attack on ALJ decision-writing than substantive disagreement of law and/or fact, then what was the point of the appeal? On remand, how likely is the next ALJ to see this case any differently when it looks like the only points of contention with the original decision were basically semantic in nature? Wouldnt a claimant in this position usually be better served by an encouragement to get more serious about their tx and reapply, rather than spending YEARS in an uncertain appeal process? Just to clarify, these are honest questions, not rhetorical questions.
"On remand, how likely is the next ALJ to see this case any differently when it looks like the only points of contention with the original decision were basically semantic in nature? Wouldnt a claimant in this position usually be better served by an encouragement to get more serious about their tx and reapply, rather than spending YEARS in an uncertain appeal process?"
We will appeal until you give us the answer we want.
Yeah, I was kinda struck, too.
As an ODAR employee in the 4th Circuit, my not-that-well-informed opinion is that these new lefty appointees are trying to make up for lost time and undo all the harm (or nothing) the conservative and short-staffed 4th Circuit had done since forever.
Dan, this case was appealed back when a claimant could both appeal and file a new claim. The 4th Circuit indicates that the claimant was paid on the subsequent claim and the issue before the Court was only for disability prior to the subsequent favorable. So, the new ALJ will get to adjudicate a period of disabilty that began over 10 years ago.
Thanks for clarifying. I'd missed that.
Some thoughts
1) I hate that the actual decision is not appended to the decision or otherwise available. Hard to know how accurate the summary of the decision is. That said...
2) Wow the AC is useless. They can't catch a "hanging paragraph" and failure to address an opinion? Isn't this what they exist for, obvious errors like this?
3) When is SSA going to deal with the mounting rejection of simple tasks/svp 2 as a legit mental limitation? I have always thought this approach idiotic. I mean what is the baseline? Is someone with no mental impairments able to do skilled work? The facts that the grids are made up of unskilled jobs (and transferable skill jobs) suggests that the assumption is that, barring education and work experience providing skills, you are capable of only unskilled work. Therefore, a mental limitation to svp 2 work is not a limitation at all. Not saying this is necessarily correct, but SSA has done nothing to clarify this.
4) I have never understood the boilerplate paragraph, or the insistence that credibility and the RFC determination are distinct inquiries. They are not. You know the best indication of credibility? Not a bunch of "gotcha" BS. How about, hey the guy says his legs are numb, but exams show normal sensation. The C is not credible and the exam findings provide a basis for saying he can stand/walk for 6 out of 8 hours. Instead we get "exams show sensory loss, but the Claimant told the CE he lived with his wife, but denied it at hearing, so he can walk/stand 6 out of 8 hours." In short credibility should be nothing more than matching the allegations of limitation to the medical and other evidence that supports/denies it, not a separate, "oh look you had a drug problem and therefore you are not credible" analysis.
5) The rationale about the RFC extending to an "entire day" or a workday is just dumb and reflects a lack of common sense. Where does the ALJ indicate it is for anything else, and hey, aren't we talking about ability to do 40 hour workweek. I mean read the reg cites, its pretty obvious. Also don't care for the implication that the RFC is flawed because the ALJ did not include mental limits in the hypo. Obviously, the writer tried to cover for the ALJ on this. That said, if all the jobs are svp 2 (I realize here they were not) then adding a limitation to svp 2 or less work has zero impact on the jobs cited. In short, dogmatic adherence to the "RFC must match the hypo" rule (which is not a rule in any reg I am aware of) is overly simplistic and a shortcut to avoid actual analysis.
@Dan, you should do some federal DC work. In practice, harmless error really only applies if the ALJ followed all the rules in making the decision. I have found that, in my circuit at least, if the ALJ failed to cross all the t's in elucidating the decision, then you get a remand. Failing to address an opinion is fatal (even if, quite logically, your point stands)- no ex post facto justifications! This case should have been an agreed to remand by OGC. Instead, more bad caselaw for the agency. Thanks AC and OGC for letting this get to the 4th circuit (where Posner reguularly beats down ODAR).
1:53 Just an fyi, Posner regularly beats down ODAR in the 7th (not the 4th) circuit.
I am confused by the confusion over the boilerplate. "To the extent that" does not mean "because". The boilerplate is not saying that the claimant's statements are not credible because they conflict with the RFC.
The point of that language is to soften the finding that the claimant is "not credible". That is considered a mean thing to say and so it's supposed to sound nicer to say that the statements are not credible to some extent rather than entirely. That's all its there for. Its a line that could be removed and probably should, but it isn't his cart-before-horse thing than everybody says it is.
"OGC should have taken a voluntary remand" OGC won before the District Court, in a District that is nororiously claimant friendly, though this case was not heard by the most claimant friendly of the District Court Judges.
"When is SSA going to deal with the mounting rejection of simple tasks/svp 2 as a legit mental limitation?" It has been; remember the decision under discussion is over 4 years old.
"Therefore, a mental limitation to svp 2 work is not a limitation at all. Not saying this is necessarily correct, but SSA has done nothing to clarify this." SSA has held numerous trainings to try to correct this. Although some ALJs are beyond learning new ways of doing things and some writers just don't give a damn, you really should be seeing less of this over the past few years.
" "RFC must match the hypo" rule (which is not a rule in any reg I am aware of) is overly simplistic"
Isn't just part of the substantial evidence rule? If a denial is premised upon a VE's response to a hypo, that hypo must match the RFC or the answer is not substantial evidence sufficient to support a denial. Obviously, if the hypo was more restrictive than the RFC, then there is no harm.
@ 9:05
I get what you're saying, but it seems to me that often that's what is actually happening. Sometimes there's really no discernable credibility gap except between the severity of diagnostic evidence and subjective complaints. If the objective evidence shows a problem (let's say stenosis), claimant testifies to pain level of 7, reported ADL's are limited due to pain, and the record contains nothing to contradict the ADL's, some judges will pay, some will find claimant not credible because the ALJ's opinion of the severity of the objective evidence doesn't match what he believes the pain level produced should be. There's really nothing in the record to hang the unfavorable credibility on, so you end up with "I don't believe you because I don't believe you."
Thank goodness this was remanded by the 4th circuit, but we once had a decision that said that the claimant's reported ADL's were not credible because they could not be objectively verified. No suggestion that they were wrong, but that you can disregard them because, well...you get the picture.
@12:20
I take your points but I find it hard to justify defending a decision that wholly omits one opinion and then has a hanging paragraph. I mean, legalities aside, that is embarrassing. Is it completely legally insufficient. Lot less money to just rehear it or send VE roggs don't you think?
As to SSA's training attempts on not using svp 2/srrts I would say that this has been insufficient. Compare these efforts to the far more successful effort in reducing the use of "moderate" as a mental limit in the RFC. The latter were successful (IMO) because a viable alternative was given- i.e using occ'l, frequent, etc in regard to at least social interaction. Without some viable replacement that can be used agency wide, training efforts have simply been to replace insufficient limitations with vague ones (i.e. simple tasks). It is not a few bad apples. Literally at lest 95% of the decision I see with mod CPP limits have svp 1, 2, 3, or 4/srrts as the corresponding rfc limitations. Does anyone reading this blog have any different experience? Cause I am talking literally 1000s of cases, and even the best (IMO) ALJs.
Lastly, no the RFC does not have to match the hypo. Easy example, hypo is light w/ occasional stooping. VE Ids jobs. ALJ decides C can do full range of light w/ frequent stooping. Are you seriously saying you could not use the VE jobs for occ' stooping? As long as the RFC is being made less restrictive than the hypo at hearing, then there is no problem using jobs IDed for a more restrictive RFC. Please tell me this is common sense!
3:40 I agree 100% still seeing svp2 etc and simple routine in the RFC's in fact I don't see any alternatives when there are mental impairments. I also agree that a less restrictive RFC can be substituted.
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