May 12, 2020

"The Injustices ... Are Both Many And Deep"

Carl Boatner
     From the Meridian Star:
Carl Boatner suffers from chronic obstructive pulmonary disease, coronary artery disease, two liver diseases, diabetes, obesity, hypertension, major depressive disorder and anxiety disorder.
The administrative law judge handling his appeal of the denial for disability payments determined those medical conditions “could reasonably be expected to cause” disabling symptoms.
And then he denied Boatner’s appeal.
He concluded the Carthage man’s severe medical conditions failed to “meet or medically equal the criteria for any listed impairment,” despite the fact they had once landed him in hospice, a care facility designed to give supportive care to people in the final phase of a terminal illness.
Boatner didn’t die before getting his benefits, but that wasn’t the case for Phillip E. Herring of Tupelo.
Vonda Peters of Tupelo received her brother’s third denial letter in the mail the day after his funeral in July 2019. “I don’t normally cuss, but I thought, what the f---?” Peters said.
U.S. District Judge Carlton Reeves, in a ruling that eventually awarded Boatner disability benefits, pointed to a pervasive attitude among many administrative law judges to view applicants with skepticism, adding Boatner’s judge issued denials at a rate 25 percent higher than the national average.
“The injustices of the disability payment system are both many and deep,” Reeves ruled. “Research suggests the majority of denials may be incorrect, and applicants struggling to manage their disabilities say such denials can amount to a ‘death sentence.’” ...
In a May 11, 2018, ruling, Reeves posed the question: Did the administrative law judge review the evidence properly?
Reeves’ response: No.
In his blistering opinion, he detailed where each component of the disability process had failed Boatner before he then awarded the veteran truck driver his long-denied benefits.
Reeves turned his focus on the state agency acting on the Social, Security Administration’s behalf — Disability Determination Services. ...
n his ruling, Reeves described the “waiting” Boatner had to do, saying, “Boatner has spent nearly a decade seeking disability payments from the Social Security Administration, filing his last application in 2014. Despite acknowledging the severity of Boatner’s medical conditions and his trips to death’s doorstep, the Administration has denied each of his four applications. These denials have been painful. One caused Boatner to walk out of his house, put a gun to his head, and threaten to kill himself.” ...
In his ruling, Reeves took aim at the disability examiners and the administrative law judge that handled Boatner’s case, noting the ALJ had resolved more than 600 cases in 2016. Reeves also said examiners are not prepared to handle as many cases as SSA asks them to handle.
Mississippi DDS’ 111 examiners processed approximately 64,000 cases last fiscal year, according to Patti Patterson, regional communications director for the Atlanta regional office of the Social Security Administration. Caseloads per examiner range from 65-125 cases, said Chris Howard, head of the Department of Rehabilitation Services. ...


Anonymous said...

It would be interesting to formally study the harm caused by wrongful or mistaken denial of disability claims. Categories could include financial harm to the wrongly denied claimants and their families, impact of denial on ability to meet basic needs (health insurance, food shelter), exacerbation of physical and mental illness, employment rates, and death rates. I suspect that for many thousands of people, the human cost is significant like that depicted in the article but a formal study would be needed to measure it.

Anonymous said...

I suspect I know which ALJ that was. The agency should have dealt with him
a long time ago but they turn a blind eye to those types until someone starts to make a stink for them about it. Its nice to see a district judge actually pay attention to those things instead of just flippantly dismissing things like a judges statistics that fall way below the average. It's also nice to see a judge take a critical look at DDS. Too often we see district judges that just accept the agency's excuses, parrot things about treating physician's opinions just being "check-box" forms and move on.

Anonymous said...

Now if we can just continue to flood the federal Judiciary with extremist, right wing judges we can make certain remands like this never happen again!

Anonymous said...

Why must we always bring politics into these things. Frankly, its just dumb. I'm pretty conservative and as part of that ideology, I think the government owes everyone due process. As far as federal judges, I've noticed some of the most liberal seem to be less interested in digging into these issues and more likely to assume the government is right. Trying to see everyone in such strict terms such as liberal and conservative and ascribing evil intent to one side or the other automatically is really short-sided and, just dumb.

Anonymous said...


I wouldn't be so sure. Right wing extremist judges are anti-agency. I've not done any kind of quantitative analysis, but I've seen quite a few strong remands from newly appointed judges.


I'm pretty liberal as part of my ideology, and I agree. Some judges seem political, but the vast, vast majority don't, or at least seem capable of not imposing their personal politics on the cases before them.

Anonymous said...

Anon 11:13 Personal politics play a part. But personal bias plays a bigger part. For example, early in my career there was an ALJ in Arizona who granted around 80 percent of his cases. And I learned he was a staunch conservative. But usually, the lower granting ALJs tend to be conservative.

The good ALJs are a mystery. I really cannot determine where they lean politically. They are open minded. Those are kind of rare though.

Anonymous said...

In my 30 years of practice what I have noticed is a change in how Judges view the cases. While it use to be that most of the judges looked at a case and asked "is this person disabled?" more of the newer judges look at a case with the mind set that the agency found the person is not disabled and the claimant has the burden to prove they are wrong. So many judges who just won't believe what claimants are telling them about their symptoms and the restrictions there doctors are placing on them.

Anonymous said...

I won’t comment on the broader points in the district judge’s decision in Mr. Boatner’s case, but he did used some flawed reasoning to explain why Mr. Boatner’s smoking didn’t materially affect his COPD. The judge said that the ALJ was precluded from drawing a link between smoking and respiratory problems because he/she admitted that Mr. Boatner’s drug use was not material. But the ALJ was referring to illegal drugs and/or alcohol. SSA doesn’t treat tobacco/nicotine addiction as “drug use,” so the court wrongly conflated smoking with other types of substance abuse and played “gotcha” with a finding that the ALJ didn’t make.

I struggle with this point because some circuit courts treat smokers as victims who can’t help themselves, while other circuits have said that personal responsibility still plays a role and benefits shouldn’t be awarded for self-destructive choices.

I’m not sure where I land, but I see merit to both views. I’m put off by news articles that start with a list of diagnoses to push the narrative that the entitlement to disability is clear. I also wouldn’t argue that the system is broken based on one district judge’s view that the burden of proof should be replaced with the honor system.

Anonymous said...

For anyone interested in reading the actual decision:

To put it mildly, the Court's decision is not a particularly good model of how to properly analyze whether a decision is legally sufficient and supported by substantial evidence. Basically the Court started by presuming everything the claimant alleged was true, and that there is no way an ALJ could possibly do their job in the time allotted given how many words were in the records and relevant listings, then proceeded to criticize the ALJ for failing to discuss each individual piece of duplicative evidence separately in gratuitous detail.

Anonymous said...

Interesting the critiques coming from within the agency towards this judges decision. I see ALJ decisions every week that contain vast quantities of "flawed reasoning," that are grossly legally insufficient, and that start by presuming everything the claimant says is false. Seeing the folks that put out garbage day in and day out criticize this decision is certainly funny. And, 2:33, regardless of the basis of the argument, the system is broken, badly broken. To deny that is to deny the obvious. I don't need a news article to tell me that, I see it every day.

Tim said...

The problem with an ALJ expecting a claimant to "proove" their case is that medical science hasn't created the tests necessary to do so! There are no medical "tricorders" that detect pain, mental illness, fatigue, migraines, light-headedness, dizzyness, etc. Yet, these are the symptoms that are most likely to be the limiting factors in people's ability, or inability, to work. Add in the VE fantasy jobs and you have a system that claims people can work that has no basis in reality.

Anonymous said...

"While it use to be that most of the judges looked at a case and asked "is this person disabled?" more of the newer judges look at a case with the mind set that the agency found the person is not disabled and the claimant has the burden to prove they are wrong."

Ah yes, those dang newer judges and their insistence of putting the burden of proof on the claimant to support the allegations of disability. Why won't they just shoot from the hip like those good old judges did? Do they not want to get hauled in front of Congress so that they can incoherently ramble about how they're so good at analyzing a person's credibility without regard for other, more relevant evidence? And by more relevant evidence, I mean things like medical records or the like that supports the allegations made before and during the hearing.

My job is not to determine whether someone is disabled or not. That is the result of my analysis, but it's not the driver of my decision making. My job (after steps 1-3) is to determine what is the most someone can do on a consistent and ongoing FT basis from a functional standpoint. After that, the VE largely determines how that set of functional limitations impacts the world of work, and that testimony is what results in the decision.

I don't pay people. I don't figure out if they're disabled based on my gut feeling or what I believe in the hearing. I determine whether the individual is entitled to disability benefits on the basis of their records, their allegations, and expert testimony. We have evidentiary standards and regulations that dictate how claims are evaluated. Naked testimony is not evidence of something in the complete absence of such evidence in the record.

What I personally think in the absence of corroboration isn't included in our regulations as part of the evaluation. That sort of thinking is what led to the bastardization of the term "credibility" and why its use was done away with. It leads to picking and choosing based on personal feelings/biases and ensures different standards are being applied to different claimants with no consistency.

Anonymous said...


Your claim that your job ends at the residual functional capacity finding and leaving it to the VE at that point is incorrect. You also need to determine the VE's job numbers are significant and that the VE's testimony is reasonable.

As to your claim that testimony is not evidence of something in the complete absence of such evidence in the record, a claimant's testimony is part of the record as a matter of law. Testimony not supported by medical evidence is not particularly strong, but it is evidence in it's own right and must be considered under the regulations.

The absence of corroboration isn't included in the regulations because, again it varies by circuit, but that standard isn't generally valid as a matter of law because the Social Security Act covers conditions that are objectively-verifiable but also subjective in nature. For example, no test can prove someone has most mental conditions. At best, it requires the subjective judgment of medical professionals to conduct testing involving the claimant's responses (again subjective).

Finally, the term "credibility" was done away with not because it had been bastardized, but because decades of caselaw, some even predating the Social Security Act, places the burden of persuasion (not proof) on the Agency in regard to credibility determinations. The details vary by circuit, but the Administration sought to avoid judicial review by doing away with the term. Any bastardization wasn't a recent development.

Anonymous said...

@ 5:09 PM

Except that "naked testimony" will certainly demonstrate if someone has certain severe psychiatric impairments.

You say that: "I don't figure out if they're disabled based on my gut feeling or what I believe in the hearing."

Well, the problem is that some conditions psychiatric effectively radiate from the claimant.

As a claimant's attorney, I've had cases where I personally didn't think that they were disabled based on their records until I actually spoke with them. I've even had cases where I was prepared to recommend withdraw of the claim until I figured out what was actually going on.

This is the reality of certain mental illnesses.

With some people, and I'm not talking a majority, or even a sizable minority, you quickly figure out that some of them are just profoundly mentally disabled regardless of whether medical records support their severity on their face.

I honesty didn't believe that there was such a thing as some of the severe mental illnesses that I've encountered doing this type of work.

And yes, it's like obscenity.

You know it when you see it.

Anonymous said...

If 5:09 is a judge, I sincerely hope they go woodshed SSR 16-3p, specifically the part about the second step of your analysis of the claimant's allegations as adjudicator.

You wrote multiple times about the claimant's burden to provide (what you believe to be) sufficient corroborating medical evidence to substantiate their allegations.

This is all wrong.

One you establish the presence of an MDI that could reasonably cause the alleged symptoms (not normally or usually--any symptom reasonably caused by the MDI), that's all the objective medical evidence you absolutely need.

So long as there isn't (maybe even only significant) contradictory objective medical or other evidence, you are free to believe the claimant's unsupported allegations regarding the nature and extent of their limiting symptoms, particularly the subjective ones.

Many judges think a claimant absolutely must provide sufficient objective medical supporting the nature and extent of their limiting symptoms, and they couldn't be more wrong.

Here's a quote from the SSR itself if you think I'm crazy:

However, we will not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual.[11] A report of minimal or negative findings or inconsistencies in the objective medical evidence is one of the many factors we must consider in evaluating the intensity, persistence, and limiting effects of an individual's symptoms.

While my flippant statement that claimants' allegations can be believed 100% without anything else once an MDI established is not quite accurate, it's infinitely more accurate than the approach so many ALJs take requiring some high bar of corroborating objective medical evidence before they will believe a claimant's allegations.

This is a huge problem I've noticed and it won't get better--they train the judges into this bad framing.

Tim said...

5:09 PM. IF you are an ALJ and not a troll, then you should know the burden of proof at Step 5 is SUPPOSEDLY on the government to PROVE the claimant can do a job with significant numbers in the national economy and can SUSTAIN a PRODUCTIVITY at a SGA level. If Federal Courts actually enforced the "proof" at step 5, I am sure there would be a lot more remands. They don't "proove" that the jobs exist and they don't prove the RFC and the limitations are correct (it's a "judgement" based on the evidence, not a fact). There seems to be a much lower level of "proof" needed at Step 5 then at Steps 1-4. In theory, if there is any doubt at step 5 that a claimant can do a job that is proven to exist, then the claimant should be found disabled. In practice, it is assumed that the claimant can do what the hypothetical person can do. They don't actually prove the claimant can actually do the job.

Anonymous said...

4:18 AM. If they enforced this failure at step 5, the remand would only need to be for an award of benefits. They failed to meet their burden = the claimant has proven disability or agency has failed to prove non disability. Pay the case.

Anonymous said...

Why did the ALJ even consider whether the claimant quit smoking? "prescribed treatment means any medication, surgery, therapy, use of durable medical equipment, or use of assistive devices. Prescribed treatment does not include lifestyle modifications, such as dieting, exercise, or smoking cessation." SSR 18-3p.

Anonymous said...

@8:19, Check the date of the ALJ decision against the date of the SSR, and you’ll have your answer.