BAD ARGUMENTS: HOW TO IDENTIFY AND REFUTE THEM

Transcription

1 BAD ARGUMENTS: HOW TO IDENTIFY AND REFUTE THEM NOSSCR Baltimore Conference May 13, 2011 Eric Schnaufer

2 Bad Arguments: Three Sources Administrative Law Judges No penalty for making bad arguments Social Security Administration, Office of General Counsel (OGC) Attorneys Essentially no penalty for making bad arguments Claimants Representatives Significant penalty for making bad arguments

3 Bad Arguments: Where Found ALJ decisions Claimants representatives written submissions and oral arguments Plaintiffs attorneys merits documents OGC s merits documents

4 Bad Arguments: Who is Worst Offender? Finger-pointing is a prototypical bad argument The other guy s bad arguments don t make your bad arguments less bad Worst offenders found among ALJs, claimants representatives, and OGC attorneys No group better or worse as a group Worst offenders are repeat offenders Where there is one bad argument, there is likely another

5 Rep: Lie a Little or Even a Lot (I) Worst Bad Argument: A lie, falsehood, intentional misstatement, reckless misstatement, or careless misstatement Sometimes impossible to rehabilitate claim or argument once lie is told Representatives most frequent lies: ALJ ignored fact or factor when the ALJ did not ALJ did not consider fact or factor when the ALJ did ALJ did not evaluate fact or factor when the ALJ did Difference between an ALJ saying something and saying nothing at all

6 Rep: Lie a Little or Even a Lot (II) How to avoid the most common lie Triple check for truth any statement that an ALJ ignored, did not consider, or did not evaluate a fact Appeals Council/OGC/court will verify statement Read the entire ALJ decision Optical character recognition (OCR) verification Acknowledge any factual summary Distinguish between a factual summary and a substantive evaluation Make alternative arguments Did the ALJ implicitly consider or evaluate a fact or factor? Can the ALJ s rationale reconstructed?

7 Rep: ALJ Relied Solely on... (I) Presumptive Bad Argument: The ALJ relied solely on one fact or factor Most often demonstrably false ALJs rarely rely on just one fact or factor May be false in context Even if one fact or factor cited, ALJ may have implicitly relied on other facts or factors Issues may be intertwined so consideration of one issue is consideration of another

8 Rep: ALJ Relied Solely on... (II) Anticipate OGC false imputation Plaintiff argues that the ALJ relied solely on a fact or factor when the ALJ relied on multiple facts or factors Preemptively state that the ALJ relied in part on a fact or factor Attack more than just one aspect of an ALJ s finding Where there is one error, there is likely another

9 ALJ/OGC: Missing Issue (I) Claimant waived an issue when the claimant did not raise the issue even though the claimant was not apprised of the necessity of raising the issue Claimant or representative should have raised issue in Agency document or proceeding Non-adjudicative setting, e.g., medical treatment

10 ALJ/OGC: Missing Issue (II) Really bad argument because... Claimant never notified of necessity of raising particular issue (due process) No Agency authority requiring exhaustive list of issues in disability claim in any document or at any proceeding Unreasonable to impute knowledge of nonexistent rule to claimant or representative Unreasonable to require the irrational, e.g., reporting impairments to wrong specialist

11 ALJ/Rep/OGC: Unreasonable or Unsupported Inference Bad Argument: Because the claimant could do x, the claimant can do x twice Because the claimant lifted 10 pounds once, he or she can lift 20 or 10 pounds on a sustained basis Because the claimant lifted 10 pounds once, the claimant can lift only 10 pounds No magic method to rebut unreasonable or unsupported inference

12 ALJ/OGC: Unreasonable Negative Inference Bad Argument: The absence of specific evidence shows that that there is no such evidence when there is no basis for the negative inference. Example: The physician believed that the claimant could perform light work when the physician was not asked about light work. A negative inference is unreasonable if it is a baseless imputation

13 Rep: Baseless Allegation of Bias Bad Argument: ALJ was biased Bias has two general meanings Liteky bias, i.e., biased based on extra-judicial source Allegation of unfairness Most allegations of ALJ bias are baseless; they are mere disagreements with the ALJ s rulings on the merits Most allegations of bias make a representative appear as an amateur; labeling the ALJ biased does not advance a claim Allegation of bias at the Appeals Council may needlessly complicate the request for review

14 OGC: Representative to Blame for All of the ALJ s Errors Bad Argument: The representative is to blame for all of the ALJ s errors Representative is not responsible for drafting the ALJ s decision Representative is not responsible for the ALJ misstating facts or violating the law Representative is not responsible for carrying the Commissioner s step-five burden of production Caveat: Finger-pointing often works, so representatives must make best case

15 ALJ: I am Not Bound By the POMS Bad Argument: ALJ states that he or she is not bound by the POMS ALJs do not make law, but only apply it There are 1,400+ ALJs; there are not 1,400+ interpretations of the Act and its regulations Administrative law requires deference to Agency policy interpretations

16 OGC: Requirement in SSR is Not Reasonable Bad Argument: A requirement in a particular Social Security Ruling is not reasonable OGC has no authority to argue that binding Agency policy is unreasonable A claimant has no duty to prove valid or reasonable the Agency s binding requirement found in the SSR But the claimant must still prove harm

17 ALJ/OGC: Objective is Subjective Bad Argument: Evidence that is objective for the purpose of 20 C.F.R , e.g., a sensory abnormality, is actually subjective Since objective evidence is thought to be probative and subjective evidence flimsy, ALJs and OGC argue that objective evidence the purpose of the regulations is actually subjective

18 Rep: Subjective is Enough Bad argument: Because there cannot be objective evidence of a subjective impairment, e.g., fibromyalgia, subjective evidence is enough Subjective evidence is never enough There must always be an underlying medically determinable impairment shown by objective evidence, e.g., trigger points as signs for fibromyalgia

19 Rep: A General Rule Does Not Include an Exception (I) Bad Argument: A general rule is an absolute rule or has no exceptions Agency rules can be absolute, e.g., include mandatory requirements, or general, e.g., provide what the rule usually is Agency rule makers often allow adjudicators wiggle room

20 Rep: A General Rule Does Not Include an Exception (II) Instead of arguing that a general rule is absolute or has no exception Acknowledge that the rule is general If true, explain why the general rule applies Determine whether the ALJ acknowledged the general rule Determine whether the ALJ found explicitly or implicitly that an exception applied Attack the ALJ s explicit and implicit rationale

21 Rep/OGC: No Principle in a Case Bad Argument: A precedential appellate case is limited to its facts, i.e., includes no legal principle Most precedential appellate cases include the application of a legal principle Prove that a precedential appellate case includes a legal principle There is no Bush v. Gore Social Security case

22 OGC: Post Hoc Rationalization Bad Argument: The court should affirm the ALJ s decision based on grounds the ALJ never provided SEC v. Chenery Corp., 332 U.S. 194 (1947) prohibits reliance on post hoc rationalizations Prove that the rationale is post hoc and that is unreasonable and/or incorrect Anticipate post hoc rationalizations

23 ALJ/OGC: The Claimant is Bad Bad Argument: The claimant is not disabled because he or she is a bad person, i.e., morally unworthy Social Security Act does not include a moral test (except for DAA and felonycaused disability) Prove that the claimant satisfies the definition of disability Doth protest too much

24 ALJ: Use of Unreviewable Standard Bad Argument: The claimant is not disabled because he or she does not satisfy an unreviewable standard Examples Claim inconsistent with totally disability Claim inconsistent with an ability to perform all work A claimant does not have to satisfy a nonexistent abstract standard

25 ALJ: Use of Unreviewable Descriptions of Limitations Bad Argument: The claimant has a limited ability to do x Examples: Limited public contact or ability to reach Impaired ability to concentrate A specific functional limitation must have intersubjective meaning Claimant may be faulted for not clarifying at hearing a hypothetical question

26 Rep: Identification of Error Without Either Allegation or Proof Harm Bad Argument: ALJ made a specific error without either allegation or proof of harm All tribunals, including the Appeals Council, generally require an error to be harmful When there is no allegation or proof of harm, a tribunal will generally hold the error harmless Did OGC respond to proof of harm?