Post-hoc Rationalization

The case has been tried before the ALJ and a decision reaches the office several months later.  It is a denial of benefits, but the basis for the denial is what raises questions.  The record is replete with information showing that claimant could not return to past work. He could not return to work, because it caused anxiety, which lead to a cascade of problems all of which were based upon a somatoform impairment. His heavy exertional employment was the employment within which the problems arose, there was no evidence that the same problems would not arise in a lower exertional type of work, since he had never worked at any  type of employment.

Absent any evidence of the effect of lighter work, the ALJ has ruled that claimant is able to do all types of lighter work, in part because it is obvious that certain light work job cause less stress.  The ALJ so finds in spite of the regulations dismiss the low stress equaling light work argument.

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An appeal follows.

On appeal, the government  argument  supports the ALJ’s decision by arguing material not in the case, but clearly could be logically part thereof, i.e.  The jobs set forth by by the ALJ by there very nature are less stressful. If the expert opinion thought that lighter jobs would be a problem he would have so stated, he did not so claimant can do lighter work.

The government’s assertions are based a post-hoc rationalization.  It is a widely accepted principle of administrative law that the court base its review of an agency's actions on the materials that was before the agency/the ALJ at the time the decision was made. What material in the record supports the government’s argument?

If a court is to review an ALJ's action fairly, the court needs to review what the ALJ had before him at the time of the decision.  It should have before it neither more nor less information than did the Judge when s/he made the decision.  Consider,  SEC v. Chenery, 318 U.S.  80 (1943), wherein the Court held that agencies’ decisions may be upheld only on the basis of the rationale the agency itself has provided, not on the basis of a legally sufficient rationale that the Court might supply.

The effect of a strict application of the post-hoc rationalization doctrine is not appreciated by all reviewing courts.  There is a distaste for sending a case back when it is felt that rationally(though not factually) the decision is correct. For this and a number  other reasons, some courts consider the effects of an application of the doctrinet too drastic.

The arguments. for and against, are that a decision cannot be affirmed on the basis of an appellate supplying basis or rational argument not in the record to support the ALJ’s decision versus that the decision should be affirmed based upon the rationale, bases, grounds, explanations, or reasons relied upon by the ALJ[1].

It appears that the ALJ is given some latitude in the basis for his/her action in cases where the appellate court can be directed to material in the file, and base a decision even though ALJ did not notice or quote material in the file.  In such cases the appellate court can conduct its own evaluation finding support for the judge on a basis the judge never envisioned.

Consider Goble v Commissioner of Social Security, Case No 1:10CV01661 (2012) wherein the Court up held the Judge’s decision by supplying a new rational from material in the file.

      Finally, Goble's argument that the Magistrate Judge provided an improper post hoc rationalization by stating that Goble "was capable of performing unskilled sedentary work which exists in sufficient number in the national economy" is unpersuasive. The Court need not address Goble's alleged post hoc rationalization argument when, having conducted its own evaluation, the Court finds that the ALJ's determination and the recommendation are supported by substantial evidence.

For claimant’s a careful review of the records needs to be made and if the ALJ’s decision is not supported from the record, and that the records lacks support for any other basis to find claimant not disabled, the argument should be raised and it should be fruitable.
 I myself do not put a lot of hope if this is the only argument you have on appeal for reasons stated above, but if it is there and you are in an appeal, you should argue it.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

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[1] Chenery Corp, 332 U.S. @ 196 versus Burlington Truck Lines 371 U.S. 156 (1962) @169

Overpayment of Social Security Benefits

Every so often a claimant comes into my office with a letter from Social Security informing the person that he/she has received an overpayment and social security wants the overpayment repaid.  Usually, the notice also indicates that benefits will not be paid pending resolution of the overpayment.
The concerns are on how to deal with an overpayment.  Many indicate surprise, since they say they contacted social security, sometimes on several occasions, explaining their current situation and were told everything was fine, and benefits continued.  Now they want to know what happened, why it happened and how to solve the problem. 
An overpayment occurs when a person receives payments for which s/he is not eligible or receives a larger benefit than warranted. 
(Generally, if a cessation of benefits is to occur, the month of cessation of benefits should coincide with the month in which the notice of proposed cessation is mailed.  Disability payments received before this notice are not overpayments  However, there are exceptions, seven in fact, where the recipient will be currently notified that benefits should have been terminated in the past:
1.   Recipient was found disabled for a “closed period”.
2.   Recipient returned to work
3.   Recipient was asked for information or sent to an examination and refused to cooperate
4.   Recipient failed to keep SSA informed of his location
5.   Recipient failed to follow treatment that was ‘expected’ to return ability to work)

The authority for recovery of an overpayment, by social security, is found at  42. U.S.C. 404(a)(1)(A):

“404(b) Procedure for adjustment or recovery

(1) Whenever the Commissioner of Social Security finds that more… than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Commissioner of Social Security, as follows:

(A) With respect to payment to a person of more than the correct amount, the Commissioner of Social Security shall decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person, or shall obtain recovery by means of reduction in tax refunds based on notice to the Secretary of the Treasury…, or shall apply any combination of the foregoing….”

The statute provides an escape from repayment by one who is without fault in obtaining an overpayment ( 42 U.S.C. 404(b))—

“(b) No recovery from persons without fault

In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. In making for purposes of this subsection any determination of whether any individual is without fault, the Commissioner of Social Security shall specifically take into account any physical, mental, educational, or linguistic limitation such individual may have (including any lack of facility with the English language).”

Clients with a notice of overpayment, always seem to have the same questions.  Social Security said, "I was told I was ok doing what I was doing, how can it now hold me liable? I can’t owe that much?  What happens next?" 
My question usually revolves around the facts, to wit: Is the recipient actually overpaid?  Is the claimant entitled to a waiver?  Is the amount requested computed correctly?
I am only going to speak to the waiver, and specifically concerning recipients of SSI benefits; the other questions are for another day.  If you choose to pursue a waiver of an overpayment, the key element is that the recipient must show that the overpayment occurred through no fault of the claimant. (404.506, 507//416.550,552)

§416.552 sets forth what social security considers a receipt of benefits without fault. .

“Without fault relates only to the situation of the individual seeking relief from adjustment or recovery of an overpayment. The overpaid individual (and any other individual from whom the Social Security Administration seeks to recover the overpayment) is not relieved of liability and is not without fault solely because the Social Security Administration may have been at fault in making the overpayment. In determining whether an individual is without fault, the fault of the overpaid person and the fault of the individual seeking relief under the waiver provision are considered. Whether an individual is without fault depends on all the pertinent circumstances surrounding the overpayment in the particular case. The Social Security Administration considers the individual's understanding of the reporting requirements, the agreement to report events affecting payments, knowledge of the occurrence of events that should have been reported, efforts to comply with the reporting requirements, opportunities to comply with the reporting requirements, understanding of the obligation to return checks which were not due, and ability to comply with the reporting requirements (e.g., age, comprehension, memory, physical and mental condition). In determining whether an individual is without fault based on a consideration of these factors, the Social Security Administration will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) the individual may have. Although the finding depends on all of the circumstances in the particular case, an individual will be found to have been at fault in connection with an overpayment when an incorrect payment resulted from one of the following:

(a) Failure to furnish information which the individual knew or should have known was material;

(b) An incorrect statement made by the individual which he knew or should have known was incorrect (this includes the individual's furnishing his opinion or conclusion when he was asked for facts), or

(c) The individual did not return a payment which he knew or could have been expected to know was incorrect.”

What social security considers without fault, is not exactly what common understanding the term connotes.  You could have a case that social security was in fault in making the payments, the recipient called and kept social security informed, but that does not relieve the recipient.  The burden on the recipient is very high.
Although I have handled several case on a  pro bono basis, very seldom will you see a private attorney handling such cases. Why is it so difficult for a claimant to be represented in this situation outside of maybe a legal aid attorney?
In a disability case, the attorney if successful in representing a claimant gets a percentage of the back-benefits awarded to the claimant.  In an overpayment case, there are no back-benefits.  The claimant would have to pay an attorney, but if he or she is in that financial position to make such a payment, Social Security Administration most likely would require repayment of the overpayment.  In addition, the attorney would be arguing lack of funds for repayment, financial hardship, inability to pay an attorney. No attorney would take such a position to do lots of work, and then argue against getting paid.
There is another option.  An overpayment can be discharged in bankruptcy as an unsecured debt, as long as the overpayment is not shown to have been because of fraud on the part of claimant. 
There is a cost to file a bankruptcy and most claimants will be unable to pay the cost, but for a few it is the best way to get rid of the overpayment and get benefits restarted.
Rowan v. Morgan, 747 F.2d 1051 (6^th Cir. 1984) as long as the overpayment not occasioned by fraud, a “…recipient who receives, not without fault, an overpayment of benefits may escape his duty to repay those benefits by means of a quick discharge in bankruptcy.”

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Somatoform, objective evidence--- What????

The claimant sits in my office and has complaints about vision problems, inability at times to use one of their limbs, vomiting, exhaustion, anxiety... His medical records show years and year of complaints centering around these impairments. The doctors have treated the complaints. There is no indication in the records that he is malingering or being false in his statements. He has been and still is prescribed medication, and has at various times had therapy. He has always worked heavy exertional jobs.

Two things stick out in his medical reports: 1) he has been treated for years and years, and 2) no objective findings appear in the records to support the impairments. What does appear is a diagnosis of 'somatoform disorder'.

This is an interesting situation!

The Social Security Act (SSA) provides that disability means the “inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less then 12 months...42 USC 423(d)(1)(A)

Generally, a somatoform disorder refers to several conditions involving symptoms that have no physical cause, instead being caused by psychological factors. To the claimant all he knows is that he is sick, so sick he cannot work. He is not faking sickness. He is not malingering.

As shown to the claimant, a somatoform disorder can cause real pain, symptoms such as headache, fatigue, stomach problems (including nausea, vomiting, diarrhea), sexual dysfunction.

SSA regulations provide that symptoms alone may not be used as the sole basis for establishing disability. What must be shown is medical signs and laboratory findings which show the existence of a physical or mental diagnosable medical impairment which could reasonably be expected to produce the pain or other symptoms and which, when considered with all the other evidence including statements about intensity and persistence which may reasonably be accepted as consistent with the medical signs and laboratory findings, would lead to a conclusion of disability. 20 CFR §§ 404.1529(a), 416.929(a).

You can see the initial problem: the difficulty of demonstrating existence of a medically determinable impairment—such as somatoform disorder—that has no physical objective findings. (The same issue can arise with Fibromyositis /Chronic fatigue syndrome...)

Consider what the courts have done when presented with this issue:

1. Hallgring v. Callahan, 975 F.Supp. 84(D. Mass. 1997) In Hallgring, the treating physician provided evidence that the claimant satisfied all diagnostic criteria of chronic fatigue syndrome. Despite a lack of abnormal laboratory or physical findings, a lack of recorded observations of fatigue, and a physical capacity evaluation of a non-treating physician stating that the claimant was not totally disabled, the treating physician's evidence was sufficient for a finding of disability.
2. Crain v. Callahan, 996 F.Supp. 1003 (D.Or. 1997) A somatoform disorder by definition can produce psychogenic pain which is out of all proportion to any physical abnormalities, yet it is a disability upon which disability can be established.

I am not a medical person, so I went to “Wikipedia” for help on this one. “Wikipedia” provides the following:

“The somatoform disorders are actually a group of disorders, all of which fit the definition of physical symptoms that mimic physical disease or injury for which there is no identifiable physical cause; as such, they are a diagnosis of exclusion. They are recognized by the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association as the following:[1]

• Conversion disorder: A somatoform disorder involving the actual loss of bodily function such as blindness, paralysis, and numbness due to excessive anxiety
• Somatization disorder: A disorder characterized by multiple physical complaints which do not have a medical explanation.[8]
• Hypochondriasis: A somatoform disorder involving persistent and excessive worry about developing a serious illness.
• Body dysmorphic disorder
• Pain disorder
• Undifferentiated somatoform disorder – only one unexplained symptom is required for at least 6 months. “

These types of disabilities are considered mental disorders.

Just because you can establish the existence of a mental impairment, such a finding is not per se disabling. What is required of the mental disorder, is evidence of significant functional restrictions in areas such as activities of daily living, maintaining social functioning, deficiencies of concentration, persistence or pace, deterioration or decomposition in a work-like setting, or the ability to sustain mental activities necessary to the performance of sustained work activity.

If the impairment is pain, a good start is the holding in Polaski v. Heckler, 739 F.2d 1320 (8^th Cir. 1984)—the adjudicator must fully consider all evidence relating to the subjective symptoms, including the claimant’s work history, observations by treating and examining physicians, and other third parties regarding claimant’s daily activities; duration, intensity, and persistence of alleged pain; precipitating and aggravating factors, dosage, effectiveness, and side effects

From Polaski we have regulations promulgated by Social Security to deal with the issue of disabling pain. There have been several successive pain regulations as well as rulings.20 CFR §§ 404.1529, 416.929; SSR 88-13, SSR 90-1p; SSR 95-5p; SSR 96-7p.

Back to the beginning of our story. We have a claimant complaining of debilitating pain, but without objective medical evidence of a disability. He claims that he cannot work at any of this prior jobs.

Since his medical records do establish a somatoform disorder the Commissioner cannot ignore subjective evidence as to the severity of that pain. ( Frankl v. Shalala, 47 F.3d 935 (8^th cir. 1995) is an old case, but it does provide a good statement of the court's position.)

Further, suppose that there is no evidence of the effect of work at a lower exertional level, since claimant always work at jobs that were of a heavy exertional level.

Security Rulings acknowledge that the concept that the lower the exertional level of the work the less stress, etc. is faulty (SSR 82-62. POMS § DI 24510.061(B)(4)(b) – The reaction to the demands of work is highly individualized and mental illness is characterized by adverse responses to seemingly trivial circumstances).

Finally suppose that the ALJ's hypothetical question to the vocational expert, although well worded to avoid the foregoing, was basically an inquiry of the expert as to the existence of any light exertional work which would have a lower stress level. The vocational expert found numerous light and sedentary jobs in the economy. Suppose that the same vocational expert reluctantly agreed that stress is in the claimant and not the job and if that a lower exertional job caused the same stress level in claimant as the heavier exertional level work, he would still be disabled.

What would be the result???

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Follow up on the Claimant and Part Time Work

Previously I had blogged about part time work and social security disability. Part and parcel with that blog is an understanding of Residual Functional Capacity (RFC).

RFC is the term used by Social Security to denote what a claimant can still do despite his/her impairment-related limitations. It is a review of what work abilities the claimant had before disability and what abilities remain viable; taking those residual abilities into account, is there a prior job the claimant could still do, or is there any job within the national economy that the claimant could do on a sustained, daily basis. “RFC is an assessment of what a plaintiff can or cannot do, not what she does or does not suffer from. The plaintiff’s argument that the RFC does not properly recount her physical and emotional problems is irrelevant because an RFC is not supported to enumerate impairments but rather to assess plaintiff abilities and limitations after the impairments are taken into account.” Howard v. Commissioner of Social Security, 276 F.3d 235 (6^th Cir. 2002)

The type of work that is relevant to this review is sustained work, i.e. work activity on a regular and continuing basis, meaning 8 hours a day for 5 days a week or equivalent work schedule (SSR 96-8p, http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR96-08-di-01.html)

The review must take into consideration all the impairments, all relevant medical evidence and claimant’s and witness statements.

Who decides what a claimant's RFC is? 

Social security considers RFC a medical-legal determination, i.e. it is reserved to social security—state agency medical or psychological consultants, the Administrative Law Judge (ALJ) or the Appeals Council. (20 CFR 404.1546).

What this means is that medical evidence alone may only be one piece of the puzzle and it is for the ALJ to put that puzzle together.

So how does all this technical jargon have to do with the effect of part time work on getting awarded disability?

Consider two common situations.  1) Medical evidence suggests that the claimant's RFC is so limiting that there is most likely no work available, but the vocational evidence indicates sedentary work in existence.  2) Claimant's statements, under questioning by the ALJ, indicates that his/her activities appear to conflict with the medical evidence.

The ALJ makes the RFC determination from the evidence. The first situation is the focus is on the vocational expert and how the decision on work was made. If the ALJ believes the vocational expert over the medical evidence, the claimant loses, if not, the claimant wins.  It is the ALJ's duty to resolve such disputes in the evidence.

The second situation drives attorneys' crazy.  The law does not require that the claimant be confined to bed-rest, yet doing daily activities many times are the focus of the ALJ's opinion on why claimant can work.  

What you see is the ALJ making a credibility determination based on such activities and weighing it  against the evidence setting forth claimant's total disability.

Consider Delsie v. Shalala, 842 F. Supp. 31 ( D. Mass 1994) the claimant was denied benefits –

“Ms. Delsie's allegations of disabling pain were undermined by her admissions that she could undertake sustained sedentary activity such as embroidery and could undertake daily living activities such as housework, marketing, driving and shoveling snow. In addition, the record failed to show that plaintiff required more than symptomatic treatment. In fact, evidence showed that she pursued only sporadic treatment for her symptomatic complaints.”

Now, consider the claimant who has performed medium or light work activity for 15-20 hours per week. Is there a basis upon which the ALJ could deny benefits and have the decision upheld on appeal? You bet.

Why two blogs on the same subject?  Because it concerns me! These poor people are impaired and their life is at its lowest point. You inform them that a hearing they request will be held a year from now. They want to know how they can keep the little they have if claimant doesn't have any income?

Do you tell them live on the street until the hearing? Do you advise them against working part time any some job that is doable?

In my experience, 99% of the clients are hurt, impaired or physically or mentally damaged. This issue is the degree of damage, and unfortunately the desire to maintain a basic life existence can be held against the claimant.