Record and Extra-Record Evidence

Transcription

1 Record and Extra-Record Evidence National Organization of Social Security Claimants Representatives Social Security Law Conference, Denver, Colorado October 28, 2015 (as revised November 1, 2015) Eric Schnaufer

2 Different Records at Different Levels ALJ Pre-hearing, hearing, post-hearing Workshop does not address Region I Appeals Council Additional evidence / no additional evidence Appeals Council grants review (own decision) District Court Circuit Court

3 General Principles 1 Adjudicator must be fair to the claimant; decision must be based on record evidence A claimant has the duty to ensure that the record includes evidence upon which the claimant relies, but Appellate review should be fair to adjudicator; decision is reviewed based on evidence before adjudicator, but

4 General Principles - 2 Clamant has a right to pre-decision notice of evidence upon which an ALJ relies unless the ALJ renders a fully favorable decision Right to notice means something. A claimant has rights to comment on any evidence, and rebut any evidence This is procedural due process!

5 General Principles - 3 Constitutional right to notice of evidence. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Administrative Procedure Act, 5 U.S.C. 554, 556 Social Security Act, 42 U.S.C. 405(b) ( adduced at hearing) 20 C.F.R ; HALLEX

6 Record Before ALJ Pre-hearing no record yet Entire claim file is not hearing record Hearing Documentary evidence Oral testimony Some participant observations Post-hearing, pre-decision 20 C.F.R (a)

7 Record Made at ALJ Hearing - 1 Admission of exhibits into the record Necessarily part of the record unless later removed (with notice given) Prior claim file is not automatically or by implication included in the record; it is extra-record evidence unless admitted Prior testimony is not automatically or by implication included in the record

8 Record Made at ALJ Hearing - 2 ALJ likely has no discretion to exclude prior claim file if prior claim file is available and prior claim file includes relates evidence, or current claim necessarily involves prior claim, e.g., CDR, res judicata

9 Record Made at ALJ Hearing - 3 Watch carefully for ALJ cherrypicking of prior claim file ALJ may propose to admit only evidence of non-disability ALJ may omit procedural documents to make more difficult reopening of a prior determination

10 Record Made at ALJ Hearing - 4 Review ALJ decision for reliance on an exhibit from a prior claim file that was not admitted into the record Any reliance on an exhibit from a prior claim file not admitted into the record is improper reliance on extrarecord evidence

11 Closing the Record - 1 Post-hearing evidence may be record evidence, 20 C.F.R Post-hearing evidence included in the record is record evidence If ALJ closes the record, but exhibits post-hearing evidence, that evidence is record evidence

12 Closing the Record - 2 Under the all evidence regulations, see 20 C.F.R , an ALJ arguably must include all post-hearing relates evidence in the record The all evidence regulations override the closing of the record

13 Extra-Record Legal Authority Law is not evidence, but some law may be extra-record legal authority if not proffered to claimant Non-public Agency guidance Step 5 SSRs in Third Circuit Treatise, e.g., DSM, used as law may be extra-record legal authority

14 Extra-Record Medical Authority - 1 Medical authority cited for the first time in an ALJ s decision may be extra-record evidence HALLEX, I (D) s resolve-anissue test Definition of GAF in DSM is not improper extra-record authority

15 Extra-Record Medical Authority - 2 ALJ s assertions of medical fact may be extra-record evidence Any person who has symptom X would have clinical finding Y. Notes would have shown Y. Finding X means limitation Y. Use medical opinion to rebut

16 Extra-Record Vocational Authority An ALJ s unproffered assertion of vocational fact in a written decision may be extra-record evidence Right to cross-examine the ALJ and submit rebuttal evidence Unproffered DOT/SCO data may be extra-record evidence

17 Extra-Record Observations ALJ may rely on some unproffered observations, e.g., demeanor Some observations are extrarecord evidence when not proffered Claimant walking in parking lot Representative should make observations record evidence

18 Appeals Council Records (Plural) - 1 Claimant has a right to submit additional evidence to the Appeals Council. See 20 C.F.R If evidence is (1) new, (2) material, and (3) relates, then the Appeals Council uses a contrary-to-theweight standard. HALLEX, I

19 Appeals Council Records - 2 New, material, and relates evidence is exhibited and thus is record evidence before Appeals Council Evidence that is not new, material, and relates is not exhibited Non-relates evidence is returned

20 Appeals Council Records 3 Notice of Proposed Rulemaking, 80 Fed. Reg (Oct. 21, 2015) Appeals Council will have discretion not to return evidence additional evidence that does not relate Non-substantive change

21 Appeals Council Arguments - 1 Mostly enforces proffer requirements for documents Enforces, in part, HALLEX, I (D), e.g., with respect books Must show that ALJ reliance on extrarecord evidence was harmful Burden to show harm not uninform

22 Appeals Council Arguments - 2 Generally will not grant relief for extra-record assertions of medical fact Error is too common or not error May grant relief for extra-record assertions of vocational fact about Grid, less so about the DOT

23 Appeals Council Arguments - 3 Make separate arguments based on which record is at issue Substantial-evidence record = record before the ALJ Contrary-to-the-weight record = record at Appeals Council includes new, material, and relates evidence

24 42 U.S.C. 405(g) Sentence-Four Relief - Terminates Civil Action Court affirms, modifies, or reverses the final decision Reversal without a remand for rehearing = finding of disability and award of benefits Reversal with a remand for a rehearing = further administrative proceedings needed to determine disability Sentence-Six Relief - Does Not Terminate Civil Action Two kinds of sentence-six remands Part one pre-answer remand Good cause, normally for missing document or transcript Part two post-answer remand New and material evidence omitted for good cause

25 District Court AC Evidence - 1 Judicial review is restricted to the Commissioner s final decision. 42 U.S.C. 405(g). The regulations define the Commissioner s final decision as the ALJ s decision when the Appeals Council denies review

26 District Court AC Evidence - 2 Because the ALJ s decision is the Commissioner s final decision, what is record evidence for the purpose of substantial evidence review of the ALJ s decision? Only evidence before ALJ? ALJ and Appeals Council evidence?

27 District Court AC Evidence - 3 If the Appeals Council denied review, is the Appeals Council s denial reviewable for error or is it unreviewable like an ALJ s refusal to reopen? What if the Appeals Council did not exhibit additional evidence?

28 District Court AC Evidence - 4 Circuit law answers most, but not all, Appeals Council evidence questions; mush in several Circuits Appeals Council evidence is sentence-six (extra-record) evidence -- Matthews (3d) and Cotton (6th) Elegant, anti-plaintiff minority rule

29 District Court AC Evidence - 5 Appeals Council s denial of review is reviewable, not the ALJ s decision Mills (1st), Stepp (7th), Ingram (11th) Appeals Council evidence only considered on substantial evidence review of ALJ s decision Perez (2d), Nelson (8th), Brewes (9th), O Dell (10th)

30 District Court AC Evidence - 6 Appeals Council s denial of review is reviewable, not the ALJ s decision Mills (1st) and Stepp (7th) Appeals Council evidence only considered on substantial evidence review of ALJ Perez (2d), Nelson (8th), Brewes (9th), O Dell (10th)

31 District Court AC Evidence - 7 Mushy Appeals Council need not say anything, but may have erred Sun (5th); Higginbotham (5th) Meyer (4th); Wilkins (4th) Mitchell (11th); Ingram (11th) Plaintiff should apply the same legal analysis as precedent

32 District Court AC Evidence - 8 Always identify Appeals Council evidence as Appeals Council evidence in substantive arguments Always explain the legal analysis of Appeals Council evidence Appeals Council evidence ideally a secondary, not primary, issue

33 District Court AC Evidence - 9 If court record does not include evidence submitted to the Appeals Council, consider a motion to correct, not supplement, record Commissioner should not be able to defeat Circuit precedent by omitting evidence from court record

34 District Court Extra-Record - 1 Principle: Any extra-record evidence is governed by sentence six of 42 U.S.C. 405(g) New, material, omitted for good cause Be Principled: If the Commissioner, cannot, plaintiff cannot either

35 District Court Extra-Record - 2 Medical authority first cited in court may be improper extra-record evidence Test: If the ALJ had relied without proffer on the medical authority, would the ALJ have erred? But reliance may be critical

36 District Court Extra-Record - 3 Vocational authority first cited in court may be improper extra-record evidence Agency takes administrative notice of DOT, but when the Commissioner first cites the DOT the Commissioner may play vocational expert Right to cross-examine expert

37 District Court Extra-Record - 4 Litigation is not when rebuttal evidence should be submitted for the first time Respect sentence six May undermine position New vocational report not likely to satisfy good cause requirement

38 District Court Extra-Record - 5 Commissioner s reliance on an extra-record assertion, medical fact, medical authority, vocational fact, or vocational authority may be an improper post hoc rationalization. See SEC v. Chenery Corp., 318 U.S. 80 (1943).