Judge Voorhees of the Western District of North Carolina issued the following order today in 37 Social Security cases pending before him:
THIS MATTER is before the Court sua sponte in light of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). The parties are hereby directed to consult one another and discuss, in good faith, whether the ruling in Mascio requires sentence four remand pursuant to 42 U.S.C. § 405(g) for rehearing or other administrative proceedings. The parties shall then advise the Court via Status Report to be filed with the Court on or before June 8, 2015 on this issue, namely, whether remand to the Commissioner of Social Security is appropriate. The Status Report must certify that counsel have, in fact, discussed Mascio and its implications in the specific case. If a consent to remand is not proposed and supplemental briefing is requested by either party, all supplemental filings should be submitted on or before June 15, 2015.
13 comments:
Mascio is a garbage opinion for a variety of reasons, the Court's belief that the unskilled RFC limitation is meaningless and not tied to the mental impairment being chief among them. Following closely behind is the apparent belief that the ALJ not adding that lim to the hypo (but it being added by the VE) but including it in his RFC (and, remember, it is accounted for in the VE's response because the VE included the lim) somehow renders it not effective.
Mascio is very strange.
@ 4:42. Agree with the second point, but your first point is just wrong. This is not the first, or second, or even third circuit opinion to say a limitation to unskilled work is not a valid mental limitation. In this regard Mascio is not strange, it is becoming the norm, and the agency will have to deal with this in some comprehensive fashion sooner rather than later. I am always amused how many agency insiders dismiss out of hand circuit court opinions, apparently forgetting that these are now the law, and supersede whatever memo, EM, POM, HALLEX, or other blather the agency has put out. I mean most of you are lawyers and know how stare decisis works, right?
What is "garbage" is the AC's decision that a case with a blatantly incomplete analysis of an opinion was OK, yet remands cases for - I kid you not - failing to consider a SDM opinion (which, if you read the reg on evidence,is excluded from said definition) or failing to adequately explain, in an unfavorable decision, why a light RFC was adopted when a CE said the claimant could do medium (harmless error anyone?).
IMHO, the AC should be disbanded, and the resources put into the hearing level.
20/20 will have a special on tonight about freeloaders including DISABILITY
@ 4:42, I must echo the comments of 3:00AM (who must have insomnia), as it relates to a limitation to unskilled work being insufficient to capture a moderate limitation in c/p/p. In the Sixth Circuit we have Ealy to rely upon for this position. http://www.ca6.uscourts.gov/opinions.pdf/10a0026p-06.pdf Despite this being the law since 2010, we still routinely obtain federal court remands for this same issue. I believe part of it is because the agency is slow to change the FIT template and the ALJs are so worried about making their numbers that they do not thoroughly read their decisions.
I know what the circuits say and I am the first to harp on the agency for thinking that its internal applications of the law trump the federal courts. What I'm saying is that the belief that unskilled work is not a valid mental limitation makes no sense.
Another thread got into how we can't assume folks have work skills, and that skills are learned (as opposed to aptitudes). So it makes sense we only put people to unskilled work at step 5. But does this phenomenon mean that a limitation to SRRT or unskilled work isn't an actual mental limitation? There is a huge difference between saying we won't expect you to acquire job skills to perform the jobs we are going to say you can do at Step 5 and that you are unable to learn job skills and perform semiskilled or skilled work (that you are limited to performance of SRRT or unskilled work). The circuits' inability to see this basic logical point is mindblowing. They are, at least in my opinion, illogically misapplying SSA's sound and rational policy of not expecting people who may or may not have job skills or the ability to acquire them (through education, on-the-job training, etc.--not because they are mentally unable to acquire them) to go get some in order to perform the jobs we say they can do at Step 5 to determining someone's mental capabilities.
@10:40AM. I appreciate your comments as to the reasoning for only putting people to unskilled work at step 5. What is missing, however, is that the term "unskilled" simply means "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time." Thus the definition goes to two things 1) judgment, or the need for little, and 2) the length of time it takes to learn the job.
The definition does not address the level of concentration required, the pace of the work, or the various other aspects we find limited as a result of a mental impairment. In each of the various Circuit cases cited, the claimant was found to have a specific limitation in an area other than judgment or the ability to learn a job that takes little time to learn. As a consequence, just limiting them to "unskilled" work misses completely the additional mental limitations they were found to have.
If an ALJ is going to find that there is a moderate limitation in c/p/p, they need to account for it in the RFC somehow. Its no different than finding that someone has severe carpal tunnel imposes a limitation on the ability to manipulate but then arguing that by limiting them to "light" work the ALJ has somehow accounted for it. Its apples and oranges.
@3am, of course we understand stare decisis and I don't think 'agency insiders' (writers I guess) are ignoring these circuit court opinions. We just don't know if the agency is going to appeal.
As a writer, I have been instructed not to follow circuit opinions until OGC evaluates them and issues an acquiescence ruling, which takes time because our regulations account for the situation.
"If we make a determination or decision on your claim between the date of a circuit court decision and the date we publish an Acquiescence Ruling, you may request application of the published Acquiescence Ruling to the prior determination or decision."
It's kind of a catch 22 for me if I write a decision in compliance with the circuit court prior to the issuance of an AR it is 'legally defensible' but it is not 'policy compliant'.
If the AC shut down the federal district court would be overrun. The resources wouldn't be put to the hearing level they would be redirected to district courts.
"As a writer, I have been instructed not to follow circuit opinions until OGC evaluates them and issues an acquiescence ruling, which takes time because our regulations account for the situation."
This explains why Judge Posner has threatened to sanction the agency.
Mr. 3:00 am here (and yes my life is as boring as the time of the posting would suggest)
@10:40 I can buy that rationale for persons with acquired job skills, because then such a limitation would be somewhat indicative of compromised mental functioning. But this is very much case by case, and it should not be the go-to for mental limitations, as it seems to be now. Clearly the appeals courts are not buying it, and like others have said, this does not account for the nuances that @1:03 pointed out. Not that I have the answer.
@1:33 I feel your pain, and was a writer myself. But at some point you have to figure out if you are a writer or a lawyer. In my circuit, there has been established case law for more than a decade stating that DAA cannot be material unless a physician has opined that cessation of drug/etoh use would improve functioning. Never an AR on it, so writers in our circuit just took it upon themselves to follow the law. The judges (mostly) caught on. And I was not really talking about writers, as you are hamstrung by what you got from the judge for the most part. The worst offenders in re disregarding circuit caselaw are ALJs who are career SSAers/fed employees who have never litigated, and never taken a SSA decision (or any decision) to federal court. These people treat agency dictates as gospel and are oblivious to the realities of litigation. As for disbanding the AC, I have a lot more faith in our colleagues at OGC, who as I say, actually litigate. Would rather have many more of them than $140K AC judges who, as near as I can tell, do little to soften the blow in terms of minimizing Fed court filings/remands. Still, I think having true front end workups by Atty advisors/SAAs would bring about the greatest improvement in the defensability of decisions.
On an unrelated note - wouldn't it be cool if Charles started a proper forum so we could carry ongoing substantive discussion of the law without referring to each other by timestamps?
That would be cool. I'm actually curious as to your opinion regarding the legality of the reg stating SSA will issue an AR within 120 days. To me it doesn't seem like congress could delegate to an agency authority to decide on how and when to apply court decisions. I guess plaintiffs are not damaged if they can request application of the AR retroactively but in the situation you described where the agency never issued an AR I guess they are out of luck until they hit the art 3 courts.
If the agency argued that the order Charles posted violates the reg by not giving ogc 120 days I think the reg could be in trouble.
"As for disbanding the AC, I have a lot more faith in our colleagues at OGC, who as I say, actually litigate. Would rather have many more of them than $140K AC judges who, as near as I can tell, do little to soften the blow in terms of minimizing Fed court filings/remands".
I agree with this statement. The appeals council is an incredible waste of federal funding.
Signed,
Former claimant/pro se litigant
@ 5:53...I agree with your sentiment about pre-heraing work-up. Sad to say, but the highly paid and (on paper) highly qualified ALJ's often have no real understanding of SSA rules and law. Too often, they miss key procedural issues resulting in attempts to work around in the decision that are less than perfect.
Lol I've been reading this blog awhile the comments are always incredibly hostile towards ssa.
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