Those of us on the outside learned recently about Social Security's secret repository of precedents used in deciding some cases. We only learned about this because it came up in the context of the agency's arcane policies on pooled trusts. I'm hearing that this repository covers more than pooled trusts. How much more I don't know, since Social Security employees aren't supposed to be telling anyone but I hear that the agency put out some instructions on the handling of the cases of the former clients of Eric Conn using this secret repository and that the agency made sure than at least some Administrative Law Judges (ALJs) were made aware of these instructions. I'm also hearing that the agency's Office of General Counsel was giving ALJs some suggestions on how to deal with objections that attorneys were filing in those cases -- specific language to use in decisions. I don't know how these recommendations were conveyed to the ALJs. This sounds a lot like ex parte contacts to me.
20 comments:
Does any of this really surprise any of us? SSA, and particularly ODAR, has become a much more adversarial place in recent times. You can no longer trust that an ALJ will make the right decision in a case, but more importantly you cannot trust what they tell you either. The dynamics of the practice have changed to a world where we must challenge every assertion made, object to actions SSA attempts to take without proper authority, and document each and every interaction.
So there being some super secret file of instructions handed down from on high doesn't surprise me. And ALJs feeling obligated to follow it doesn't surprise me either, particularly the newer ones that have been hired who all apparently have congenital abnormalities, the lack of a spine.
By spineless you mean they follow the policy guidance of their employers and don't just do whatever whenever thinking they are Article IIIs like the old guard?
By spineless I mean they do not have independent thought about the particulars of a case. They rely on outdated (sometimes 2 years or more) assessments by DDS physicians (who either were never intelligent enough to be able to survive in the real world or last practiced before Jonas Salk developed the polio vaccine)who their employer has told them are experts in the field disability. They are spineless because they buy into contrived testimony from vocational experts, whose opinions are conjured out of whole cloth, again because their employer has told them these folks are experts.
They are spineless because they view the most vulnerable of our population as all malingerers, cheats and frauds without any basis other than that their employer has poisoned their minds with lies.
If they want to be "judges" they need to judge, which requires having independent thought and decision making, and not just severe as a mechanism for applying broad policy directives from stuffed suits in B'more who are more concerned about their career paths and retirement benefits then they are about the citizens which they are supposed to be serving.
Over the past few years, the ODAR attorneys who have successfully made it through the lengthy hiring process and been hired by ODAR to be ALJ's have tended to be younger because ODAR managers believe they can more easily "control" these ALJ's whose spines are still tender. All one need do is look at the number of fairly new ALJ's who became HOCALJ's within a very short time after becoming an ALJ in the recent past. It is uncanny. This trend has also not gone unnoticed by the AALJ's.
Those younger ODAR insider ALJ's who have not yet been placed in HOCALJ positions were also targeted for ALJ selection by ODAR hiring officials because they tend to be more easily "controlled" by ODAR managers, and are more likely to "tow the Agency line" when it comes to following secret precedents and advice about what to do with certain types of cases, production quotas, etc.
If a career ODAR attorney and prospective ALJ candidate has ever so much as whispered any suggestions contrary to management, they cannot only kiss their potential of being selected to be an ALJ with ODAR goodbye, but their ODAR career as well, because they became a target to push out the door the first time they ever so much as suggested an innovative idea which differed from management. They can also kiss the likelihood of being hired as an ALJ or attorney with another Federal Agency goodbye because you can bet any references from ODAR will be negative and their character impugned
and defamed before they even realize what has happened.
Unfortunately, this is the disgrace by which ODAR functions today, and it will continue to be the case until someone with a firm spine takes the helm and finally forces the reemployed annuitants and their minions from the days of yester-year in the highest echelons of Falls Church, VA, out, slams the door, says good riddance and permanently changes the locks.
why isn't Nosccr taking the lead on this?
"If they want to be "judges" they need to judge."
That's the crux- they are not really judges, they are government disability claims examiners - all dolled up in judges robes. It's kind of ludicrous to have to call them judges as if they actually knew how to apply the federal rules of evidence and procedure. Some of them don't even seem to understand basic legal concepts like constitutional due process as it applies to their own hearings. Most of them would never be selected to serve as an ALJ in any other federal agency. So knowing that they are overpaid for the skill level required to do their jobs, of course they're going to be obedient to the hands that feed them.
Wow the Kool-Aid is flowing freely around here tonight! Where's the "I'm not Saying it Was Aliens...." guy? Should be making an appearance soon.
Thesis nothing new. In an article called "History of the Disability Listings available on the SSA website by googling site:ssa.gov history of listings of impairments the following appears.
SECRECY AND CONTROVERSY
Prior to the passage of the Freedom of Information Act in 1966 (Public Law 89-487,
signed July 4, 1966), government secrecy was much more the norm than it is today. In the
late 50’s and early 60’s, the Social Security Administration felt that the listings should be kept
secret because public knowledge would lead to abuse of the disability program.
and
It was felt that making the guides public would lead to the creation of medical records which
were biased by the requirements of the guides in order to favor of disability applicants. As
stated more bluntly by Art Hess, the evaluation guides were felt to be “the key to the bank.”
Save your boxtops and get the decoder ring. With that you get the secret handshake. I could tell you more but then they would be after me.
As an outsider, it appears that the current generation of ALJs was hired on their willingness and trained in their ability to credit CE opinions and discount treating physician opinions. I have little doubt that this has been agency policy for the last 10 years, whether secret or not.
Yes, ALJ's are not Article III judges and should be subject to policies set by the Commissioner. But how is this policy consistent with agency law? The treating physician rule has never been repealed. The weighing factors of 404.1527 are still there. Yet they are rarely applied in an honest way.
Put in a nut shell the treating physician rule stands for the proposition that you cannot discount a treating physician opinion with BS. Nonetheless we see an endless stream of BS in the discussion of treating physicians opinions. A popular one in the last few years: "the treating physician has not given a function-by-function analysis of the RFC." Pure BS, and yet it has come out in decisions of nearly every new ALJ at the ODAR where I practice. I have a hard time believing that this is just coincidence. It may be consistent with some secret agency policy, but I don't think it is consistent with the law. And the federal court has been agreeing with me on that point so far.
Treating source rule only applies when the treatment records actually support the medical source statement. That checklist of all extremes? Garbage. Only treated the claimant once with no abnormal findings documented upon exam but the MSS says can't sit for even 1 hour? Garbage. The Disabling MSS from a treating doc whose longitudinal treatment notes support and document substantial functional limitations w Mri showing nerve root impingement? Bingo
I'd take that. That would be wonderful, if it were actually practiced. Too often we get, "the MSS is not supported by medical findings" when the treatment records contain the medical findings. Or, "no abnormal findings documented upon exam" with a cite to one exam, when ten other examinations show abnormal findings.
One of the problems with medical records is how little of what you tell the doctor gets recorded and how much of that is innacurate or presented in a "rosy" way that reflects how confidant the doctor is of his treatments. You tell the doctor you have dizzyness, constant eye irritations, eye blurryness, eye pain, headaches, and migraines that cause nausea and sometimes vomiting. The doctor gives you eye drops. You tell him it helped, some, (better than nothing) and then you look at the records. Patient has "occasional dry eyes. Gave xxxxyyx eye drops, which are working well!"
When a doctor checks a box on a medical assessment form, she is creating a medical record. I have never understood the magic transformation that occurs, in the minds of some ALJ's, when a doctor writes out or dictates a medical finding rather than just checking a box. Doctors are busy and sometimes they don't write everything in their notes. The doctor might tell a patient to elevate her legs or use a cane and not put it in the treatment notes. It happens.
Fortunately, at least the 7th Circuit can understand this. In Stage v. Colvin, Court of Appeals, 7th Circuit 2016 (Decided February 9, 2016), the court stated:
The ALJ also rejected Stage's testimony about her inability to walk or stand and her severely limited daily activities. He gave the opinion of her treating physician "little weight" because of purported inconsistencies between his questionnaire answers and the objective evidence (splitting hairs unfairly, in our opinion) without substantiating his decision to do so.[1] (Emphasis supplied)
Here is footnote 1:
[1] The "inconsistencies" identified by the ALJ are so minor as to be immaterial: Dr. Rivera's treating notes failed to tell Stage to elevate her legs, but the RFC questionnaire said she must do so; the treatment notes did not reflect a prescription for a cane, but the questionnaire said she should use one; Stage testified she could walk no more than 30 to 40 feet without a break, yet Dr. Rivera said she could walk zero blocks; and Dr. Rivera had recommended that she exercise yet said she could sit or stand for only five minutes at a time. (Emphasis supplied).
Sounds like a decision writer trying in vain to contort evidence to fit illogical alj findings.
Some aljs seem to bend over backwards to deny cases because they think it'll make them look good to agency honchos.
Others deny cases because they apparently skipped the law school class discussions on standards of proof, and thus, apply "beyond a reasonable doubt" instead of "preponderance" to all their cases.
"Dr. Rivera had recommended that she exercise yet said she could sit or stand for only five minutes at a time."
=========================
I understand the other points, but this sounds like one heck of an inconsistency to me.
Log on to www.socialsecurity.gov and type the word "precedent" and then see just how secret the agency keeps its secrets.
5:42 PM not necessarily. Doctors always say EXERCISE MORE, whether you can stand or not. Riding a bicycle (or stationary bike) and swimming or simply walking in a swimming pool are examples given to me by doctors who have said in their records: EXERCISE MORE.
8:41 PM Twenty to fifty or even older legal precedents are not germaine to the discussion of this thread. Since these are public cases, SSA could't keep them "secret" anyway.
Agree w/ Anon 2:07
"Over the past few years, the ODAR attorneys who have successfully made it through the lengthy hiring process and been hired by ODAR to be ALJ's have tended to be younger because ODAR managers believe they can more easily "control" these ALJ's whose spines are still tender. All one need do is look at the number of fairly new ALJ's who became HOCALJ's within a very short time after becoming an ALJ in the recent past. It is uncanny. This trend has also not gone unnoticed by the AALJ's."
Exactly right. That is the main reason allowance rates have been dropping. It must be something not only in the hiring but the training. All the Astrue ALJs came out of the box denying almost like they were trained to do this.
I would hope these young ALJs will eventually develop their own spine and own thoughts. But it seems like in the first 2-3 years they will be just denying like they were trained.
my wife was requiring SSA HA-1151-BK yesterday and came across a great service that has 6 million forms . If others have been needing SSA HA-1151-BK as well , here's a "http://pdf.ac/aJqpTG"
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