Gues-you must be one of our SAs- I couldn't come close to 500 cases a month without pros like you. If you are in my shop, you already know it. I fell short in al least 5 decision writing memos last month where my AAs and SAs changed the RFC or step 4 to 5 nexus last month and they were dead right in all 5 and all I had to do is sign it and send an e-mail to them (and management) recognizing the effort. I used to write alot in the alternative but I'd like to think the writers know they are my "backstop" and there is no need to consult me anymore unless it changes the decision (which happened yesterday). Bless you all.
I have a question for you? Why do think there are so many funky step 4s? -the whole step 4 fiction is silly. Who cares if you can only do you PRW versus other jobs? We have the same rfc and other vocational factors, but I did X 10 years ago and you didn't. Now you are allowed and I am not? How to make sense of that?
More practically, vocational expert ignorance of PRW requirements and reliance on them by ALJs/DWs compounded by the vague guidelines throughout the regulations on this issue.
Because the claimant would be approved at step 5 in a lot of cases and ALJ does not want that result. (Who needs the regs, they are only guidelines, right?)
I beg to differ here, this speaks to the above, that if this is a pay at step 5 then why provide a basis to deny at step 4? You seem to suggest ALJs deny at step 4 knowing it is wrong to avoid an allowance. I doubt that many would, and none should.
So you want the writer sua sponte to change the RFC? (ie, from light to medium)
In my experience it is rarely the RFC that is the problem, it is sga or the 15 year time frame. Also, the burden of proof is on the claimant at step 4, never forget that important distinction (although the Courts often seem to.....).
When the record barely supported the light RFC to begin with?
Barely supported in enough.
So there is no confusion, I am not being sarcastic. I am wondering if I am missing something?
Because this is the scenario that I see when dealing with step 4s that are a little off. Sure its an easier denial to write but as an officer of the Court I am sworn to uphold the rules and regulations of the forum in which I am engaged.
I refer to cases that the denial at step 4 is in error and the denial is step 5 is supported by the record. The DW should fix that and I doubt ALJs much care. I would never suggest any substantive change to the findings to support a step 4 that is not otherwise supported by the record. Sadly, in my view, too many decision writers lack the skill or ambition to make it right.
In all seriousness I would like to see your response.
With all the new AAs coming in, we have an opportunity to correct any apathy, any belief that our job is all about numbers and not quality, any belief that you have to abandon your personal ethics or standards in this job, and even any lack of skill that may exist on the part of writers. AAs who believe their opinions are respected and their work means something to someone and to the greater good WILL be more productive. It isn't rocket science, yet it is not always being encouraged or taught to the new writers.
We have the ability to change that, and encourage the new AAs to have the desire and to cultivate the knowledge and skill to do exactly what Gues is suggesting that we all should do. If the new writers have it, it will become contagious.
Thanks Tofer, and it is a team effort and we do so very many cases. There are always problem areas and often DWs may not notice the problem areas that were avoided by a sharp SCT or an adroit ALJ. If they do, writing a good decision becomes easier.
No subject gives me more heartburn than PRW- if the claimant alleges an AOD of 15 years ago, it ain't even an issue. Ridiculous! 50% of the time I return a claimant to present relevant work (step 5) because the AOD is birth or 20 years ago. And at least in the E.D. Va, PRW doesn't have to be 8/40. I have returrned at least 3 real estate agents to PRW who just worked weekends but earned $50,000 a year. A couple of adjunct professors also come to mind. I am astounded that SSA has completely ignored a 9-0 Supreme Court decsion holding an elevator operator consititutes PRW because even though there are no longer any positions in the U.S., the fact that the claimant could perform it is indicative of jobs with a similar RFC the claimant could perform. SSA won't be happy until they have so gutted the regs with policy interpretations that no denial decision will withstand AC review.
In regards to those funky step 4s, I happen to see an awful lot of them. Not only do I get them to write but I have the new AA and some of the paras coming to me in disgust/confusion/disgust over them.
The funky 4s I am talking about are where the claimant's rfc is stretched to a light (or medium) to accommodate a stop four denial because an rfc of sed (or light) would direct a pay at step 5.
Your comment: "You see to suggest that ALJs deny at steop 4 knowing it is wrong to avoid a step 5" pay is spot on.
By Jove, you've got it Sir.
Your comment: "A denial at step 4 in error and a step 5 also directs an denial" is the classic no brainer. Of course I don't have problems with those cases.
It is the step4/deny, step5/pay cases that cause the heartburn.
What do you suggest I do in that case:
a) elevate the rfc so that step 5 is a denial regardless of the MER
b) point it out to the ALJ (oops, I did that already and some of them just change the rfc to the higher level regardless of the MER; some of them agree that the case has to be paid)
c) send it back to the hopper and refuse to write it
d) hold my nose and just write
Now which to you think I do?
So God help us all!
PS Although decade keeps singing your praises as an SA, I don't think you even work for ODAR at least not as a writer. So I would be interested to know how much decision experience you have.
Grace - I don't want to discuss my background on this forum, suffice it to say I have written thousands and trained on the subject.
I can only offer my opinion and experience. I often got defective instructions at step 4. I either fixed it to reach the ALJ's desired result or discussed it and reached an amicable conclusion. I think if you have the reputation for knowing your Ps and Qs, ALJs have no problem as long as you approach them with the respect they deserve (by virtue of their position, if nothing else). I would often "concede" to their expertise on certain issues to get the decision defensible. In retrospect, they may have been playing me along, who can tell. Bottom line is the decision was defensible when it went to MAIL.
It that was not possible, in the real world, I doubt I would have involved others but would have written the decision to reflect the record and the ALJ's directed result. That is why we have AC review and beyond. Is that "illegal" or unethical for conduct for an attorney? As long as you accurately cite to the record I don't think so, at least not where I'm licensed. And if you are a paralegal, the sky is the limit
Yes, yes I agree with everything you say. You are correct that when I go to six out of the eight ALJs I write for regularly, we have a scholarly discussion and the issue is resolved. With one the discussion is not so scholarly but amicably argumentative for the sake of lively discussion (cause that is the way we like it) but the issue is resolved. I treat all seven of them with respect not just by virtue of their position, but because they are worthy of the position.
Judge Blockhead just doesn't care and he has been blasted from on high, very high (and I don't mean Mikey and Frankie) but he just doesn't care. This job is his own personal cherry grove and he will cherry pick at will. Even when he is called on it. In public. I tried to continue treating him with respect. I no longer can. He is a disgrace to the bench and everyone knows it. But I don't fight with him either as there is no point.
Getting along and working professionally with my ALJs is not my concern/problem, and you know it you crafty devil so you dance around it.
However, you are also correct that that is why we have the AC and beyond (thank goodness).
As for the MER supporting the decision, that is also the crux of the matter. If it was only a difference of opinion, then the ALJ wins-- no question. I don't argue opinion. I can reasonably discuss facts/law with six even seven of my ALJs but the 8th, well he rules like Henry the 8th (there we go, The Honorable Henry Blockhead). Off with their heads if they smoke, are fat, are homeless, ever had DA&A (material or no) female, middle aged, have fibromyalgia and are not white or at least act white. Heaven forbid they are all of these things. On the other hand he is so crafty that he will pay a smidgen of these cases just to "balance the stats".
My problem is when the MER is either ignored in its entirety or (and worse in my opinion) created from whole cloth, I have a problem as an officer of the court. I will not have my name attached to such malfeasance (even as a writer because that implies collusion, say what you will, I think we all remember those cases a few years back when the SAs were tried to be held as liable as the ALJ) so I just send it back. Those cases I refuse to write for Judge Blockhead.
Longevity does have its privileges.
But thanks for the first and, as usual I am sure, the best laugh of the day with your "sky's the limit" remark.
I am sure that J. H. Blockhead is jumping up and down. I say if the shoe fits, hit yourself with it. Remember that no one is naming names and a defense to libel is lack of truth on the part of the alleged libelee. Those in know, are getting a jolly good laugh.
Post by claimant infiltrator on Dec 18, 2009 15:08:41 GMT -5
"smoke, are fat, are homeless, ever had DA&A (material or no) female, middle aged, have fibromyalgia and are not white or at least act white"
A honorable person would consider none of these things unless there's an apparent affect. A honorable person would use the regulations,policy,case law as a torch guiding them through the many cases at hand. And challenge law through proper trial or administrative grievances. Although all these things have been alledged above by ms grace,as use for bias. D
Last Edit: Dec 19, 2009 10:15:59 GMT -5 by Ben Baker
From my almost 15 years experience at SSA Office of Hearing and Appeals (now ODAR), I think most all decision makers (Judges and Senior Attorneys) try to make a completely honest and fair assessment of each individual case. We had one old ALJ who denied many cases due to his strong work ethic and long tough life of his own and still working as an old and feeble man. However, most ALJs I have encountered who are lazy and do not fully review the case file give the claimant the benefit of the doubt and just pay most cases whether or not supported by the evidence. That way, the ALJ can slack off and get high disposition numbers without worrying about case remands; and they avoid scrutiny from higher up ALJs.
I am astounded that SSA has completely ignored a 9-0 Supreme Court decsion holding an elevator operator consititutes PRW because even though there are no longer any positions in the U.S., the fact that the claimant could perform it is indicative of jobs with a similar RFC the claimant could perform.
Three initial comments:
1. Your comment about "completely ignored" is hard to make fit with SSA's action in publishing that same decision as SSR 05-1c.
2. Your "is indicative" comment happens to have been one of the DOJ/SSA arguments at the time, characterized then as a "proxy" argument, on my understanding meaning that the step 4 determination stood place as a rough approximation for a step 5 determination. (Please don't ask me to defend this position.)
3. I guess you didn't hear the story that at the time, the Supreme Court building was still (and probably continues to be) one of the few formal buildings that has an elevator operator. The way the story reached me, one of the justices challenged respondent's counsel about this during oral argument. If there were no elevator operators, what did counsel have to say to the operator he had just met? The answer: "I gave her my card."
If you can be persuaded to include SSR 96-8p on your reading list, then I invite your special attention to footnote 2:
The ability to work 8 hours a day for 5 days a week is not always required when evaluating an individual's ability to do past relevant work at step 4 of the sequential evaluation process. Part-time work that was substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work must be found not disabled.
As for the rest of your post, I expect most of us admire a willingness to defy policy in favor of justice. I am inclined to think we can still admire this even if the proclaimed defiance comes from someone who turns out to be still standing in the COSS's shadow.
JOA- I am not sure how to "read" your post but the reference to the ruling sort of illustrates my point- the decision could have been the basis of a regulation clarifying PRW. This week our best SA was going "nuts" trying to find the reference that you can't consider work performed after the alleged AOD as PRW when the reg I think still expressly states that work performed before the application date is considered for PRW analysis. Since I know you work at the AC (from a post of yours on SSA Connect) you are welcome to clarify your comment. Its also interesting that the DA&A emergency memo from Rita Geir finally expired by lack of any action, republication or notification. I can't think of two better issues that illustrate the primary conflict between ALJ's fact finding function and the AC as the Commish's policy czar. I will say something good about the Commish- at least he is an attorney and finally stood up to AFGE and stopped promotion of SCTs to writers. I wish he would take the same tack to bar high-school graduate GSs from supervising attorneys. Peace to all as this important season continues to envelop us all.
When I post here, it's in my private capacity. The errors I make are my own, right down to those oh-so-frequent proofreading errors. (The same goes for the style that at least one poster regards as obtuse.) I make no claim of authority based on what I do when I'm on the clock. I generally suppress any mention of where I work. I do not give my job title. All this is in hopes that you will consider my arguments on their own merits.
There are two questions in your most recent post. The second has an easy answer, so I'll take it first. Then I'll come back to the first question, for which the answer has in two parts, one about policy, the other about logic.
About the DAA teletype
Your second question has to do with this:
Its also interesting that the DA&A emergency memo from Rita Geir finally expired by lack of any action, republication or notification.
I imagine we entirely agree that it's a sad disgrace that we don't have formal regulations—or at least a ruling, dammit—about disentanglement. But actually, the PolicyNet folks republished the DAA emergency teletype about a year ago. (The original teletype didn't come from Geier. It came from the Baltimore policy people.)
Your first and more complicated question relates to this:
This week our best SA was going "nuts" trying to find the reference that you can't consider work performed after the alleged AOD as PRW when the reg I think still expressly states that work performed before the application date is considered for PRW analysis.
SSR 82-62 gives us the three-part test for whether past work counts as relevant. One of the qualifying criteria is that the work must have been substantial gainful activity. On my understanding, if the work in question was SGA, and if it meets the other criteria, it's relevant no matter when it was done. But when the work was done after the AOD, then typically a hearing decision finds this post-AOD work was not SGA. When a decision does this, there's an obvious inconsistency when it turns around and also finds that that the same work was PRW.
If my understanding of this issue is any good, then your best SA is free to write a decision that counts on post-AOD work as PRW—provided he or she avoids the contradiction of drafting a decision that the work in question is SGA and also not SGA, and provided that your best SA doesn't attempt any time travel. That is, your best SA should avoid presenting work as PAST relevant work before it's been done.
We have the PRW issue all the time in our office as well. It seems to me that my decision writing training materials may contain a cite for the position that work after an AOD can not be considered PRW, even if it was done at sga and consideered a UWA. Been a littlw while so I'll look the first of the week and post if I find it.
It'll be interesting to hear what you can find in your training materials. When you post about this, could you please give or guess the date of these materials? The date may show in the footer.
History for ODAR training materials
I'm guessing that what you have is one of the various versions of something that started maybe 15-20 years ago under the title, "Decision Writer's Outline." So far as I can tell, this normally very useful resource has been under intermittent revision since then. One version carries the title, "Disability Training Manual." I used to be able to find this on the Intranet, but the last time I checked my link for this, it was gone. There's another version that at least a week ago you could get to via the CALJ's homepage. This expanded version appears under the title (if memory serves) "Administrative Law Judge Training Course."
I've never been certain about what level of clearance these materials get. Do they get vetted by SSA's policy components? I'm just not sure.
USW not SGA
Part of you brief post refers to work that was "done at sga and consideered a UWA." This might be just a tad oxymoronic: work that qualifies as an USW is by definition not SGA. Consider this, from the opening paragraph of SSR 05-2:
We will not consider work we determine to be an UWA as substantial gainful activity when we determine if you are under a disability or when we determine if your disability has ceased.