Mar 30, 2016

You Do Know We Can Read This, Don't You?

     From an newly amended section of HALLEX, Social Security's manual for hearings and appeals:
When determining disability, the Social Security Administration (SSA) will use each of the age categories applicable to a claimant during the period for which SSA is determining whether the claimant is disabled. SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter “higher age category”), and using the higher age category would result in a determination or decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case. ...
If the administrative law judge (ALJ) decision is supported by substantial evidence, including the findings regarding the existence of a borderline age situation and whether to apply a higher age category, and there is no other basis for granting review present, the Appeals Council (AC) will deny review.
When denying review is appropriate but the ALJ did not expressly state in the decision that he or she considered a borderline age situation and whether to apply a higher age category, the AC will add the following language to the “What We Considered” section in the denial notice:
We considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category.
     The first paragraph is standard Social Security policy. There's nothing objectionable about it. The rest is apparently based upon the theory that the only thing that matters isn't what you actually did; it's what you said you did. How can the Appeals Council say that the Administrative Law Judge (ALJ) "considered" an issue when the ALJ said nothing about the issue? How can the Appeals Council say that it "considered" an issue when it tells the world upfront that it isn't really going to "consider" the issue; it's just going to say it "considered" the issue.
     This newly amended section is about checking off boxes. You couldn't have a clearer statement of the agency's cookie cutter approach to justice.
     The ironic thing is that the language quoted above will be cited to the courts as evidence that Social Security's "considered" language is a lie. More cases will be remanded, not fewer.


Anonymous said...

Why even write a decision? Just say you "considered" every issue and find the claimant (Check the Box) _____Disabled or ______Not Disabled.

Do the people who write the Hallex ever read any recent federal court decisions? Judge Posner and the 7th Circuit will really have some fun with this one. I almost feel sorry for the AUSA's and OGC's who will have to try to defend this procedure.

Anonymous said...

Non-attorneys are in complete control. Inside attorneys are limited in what we can do from the inside the asylum. Maybe the outside bar could lend us a hand. Snide remarks telling me to leave my job only reveal the small mind of the retort poster. This issue is not a joke for anyone who cares about the claimants or,heaven forbid, the concept of due process

Anonymous said...

I don't think you want attorneys in control re:Hallex or any agency policy. I agree anon 12:23 - Posner just issued a decision talking down not only the ALJ, but the VE for absurd reliance on DOT and, the District Court for not acting earlier. Thank God for Posner. Should be a bumper sticker. Finally, Due Process has been taking a hit for years now at SSA. I really don't think they care. Look at the Appeals Council.

Anonymous said...

You are lucky in the 7th Circuit. You should be in a circuit like I am where the cookie cutters get backed up and the district courts and even the Circuit court totally support absurd decisions and ignore the regulations. They dont even make a pretense of trying to deviate from the boilerplate. Recently I got a call from a AUSA who wanted to remand because he felt he could not in good faith support the governments position. The appeals council would not let him. Funny thing is Im sure I will lose that case.

Anonymous said...

1:35, why wouldn't you want attorneys having significant input into a Federal Agency that is presumably charged with ensuring the due process rights of the claimants?

Anonymous said...

How can the Appeals Council say that the Administrative Law Judge (ALJ) "considered" an issue when the ALJ said nothing about the issue?

Please forgive my ignorance, but where does it say that?

TinaB said...

Well, the AC is allowed to correct ALJ error. This language is obviously phony, as observed above. The courts are unlikely to be fooled. In the long run, it is unlikely to make no difference, as the agency will figure out that it should have just added a sentence to the writing template: "The undersigned has decided X, because Y."

Happy hunting!