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