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BAD ARGUMENTS: HOW TO IDENTIFY AND - Eric Schnaufer

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BAD ARGUMENTS: HOW TO
IDENTIFY AND REFUTE THEM
NOSSCR Baltimore Conference
May 13, 2011
Eric Schnaufer
eric@schnaufer.com
Bad Arguments: Three Sources
п‚—
Administrative Law Judges
в—¦ No penalty for making bad arguments
п‚—
Social Security Administration, Office of
General Counsel (OGC) Attorneys
в—¦ Essentially no penalty for making bad arguments
 Claimants’ Representatives
в—¦ Significant penalty for making bad arguments
Bad Arguments: Where Found
п‚—
ALJ decisions
п‚—
Claimants’ representatives’ written
submissions and oral arguments
п‚—
Plaintiffs’ attorneys merits documents
п‚—
OGC’s merits documents
Bad Arguments: Who is Worst
Offender?
п‚—
Finger-pointing is a prototypical bad
argument
◦ The other guy’s bad arguments don’t make your
bad arguments less bad
п‚—
п‚—
п‚—
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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
Rep: Lie a Little or Even a Lot (I)
п‚—
п‚—
п‚—
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
п‚—
Difference between an ALJ saying something and
saying nothing at all
Rep: Lie a Little or Even a Lot (II)
п‚—
How to avoid the most common lie
в—¦ Triple check for truth any statement that an ALJ
ignored, did not consider, or did not evaluate a fact
п‚–
п‚–
п‚–
п‚–
п‚–
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
в—¦ Make alternative arguments
п‚– Did the ALJ implicitly consider or evaluate a fact or factor?
 Can the ALJ’s rationale reconstructed?
Rep: ALJ Relied Solely on . . . (I)
Presumptive Bad Argument: The ALJ
relied “solely” on one fact or factor
Most often demonstrably false
п‚—
п‚—
в—¦
ALJs rarely rely on just one fact or factor
May be false in context
п‚—
в—¦
в—¦
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
Rep: ALJ Relied Solely on . . . (II)
Anticipate OGC false imputation
п‚—
в—¦
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
п‚—
п‚—
в—¦
Where there is one error, there is likely
another
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
п‚—
п‚—
в—¦
в—¦
Agency document or proceeding
Non-adjudicative setting, e.g., medical
treatment
ALJ/OGC: Missing Issue (II)
Really bad argument because . . .
п‚—
в—¦
в—¦
в—¦
в—¦
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
ALJ/Rep/OGC: Unreasonable or
Unsupported Inference
п‚— Bad Argument: Because
the claimant
could do x, the claimant can do x twice
п‚— Because the claimant lifted 10 pounds
once, he or she can lift 20 or 10 pounds
on a sustained basis
п‚— Because the claimant lifted 10 pounds
once, the claimant can lift only 10 pounds
п‚— No magic method to rebut unreasonable
or unsupported inference
ALJ/OGC: Unreasonable Negative
Inference
п‚— Bad Argument: The
absence of specific
evidence shows that that there is no such
evidence when there is no basis for the
negative inference.
в—¦ Example: The physician believed that the
claimant could perform “light” work when the
physician was not asked about “light” work.
п‚—
A negative inference is unreasonable if it
is a baseless imputation
Rep: Baseless Allegation of “Bias”
п‚—
п‚—
Bad Argument: ALJ was “biased”
“Bias” has two general meanings
п‚— Liteky bias, i.e., biased based on extra-judicial source
п‚— Allegation of unfairness
п‚—
п‚—
п‚—
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
OGC: Representative to Blame for
All of the ALJ’s Errors
п‚—
п‚—
Bad Argument: The representative is to
blame for all of the ALJ’s errors
Representative is not responsible for drafting
the ALJ’s decision
п‚— Representative is not responsible for the ALJ
misstating facts or violating the law
п‚— Representative
is not responsible for
carrying the Commissioner’s step-five
burden of production
п‚— Caveat: Finger-pointing often works, so
representatives must make best case
ALJ: I am Not Bound By the POMS
п‚— Bad Argument: ALJ
states that he or she is
not “bound” by the POMS
п‚— ALJs do not make law, but only apply it
п‚— There are 1,400+ ALJs; there are not
1,400+ interpretations of the Act and its
regulations
п‚— Administrative law requires deference to
Agency policy interpretations
OGC: Requirement in SSR is Not
Reasonable
п‚— Bad Argument: A
requirement in a
particular Social Security Ruling is not
reasonable
п‚— OGC has no authority to argue that
binding Agency policy is unreasonable
п‚— A claimant has no duty to prove valid or
reasonable the Agency’s binding
requirement found in the SSR
п‚— But the claimant must still prove harm
ALJ/OGC: Objective is Subjective
п‚— Bad Argument: Evidence
that is
“objective” for the purpose of 20 C.F.R. §
404.1512, 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
Rep: Subjective is Enough
п‚— Bad
argument: Because there cannot be
“objective” evidence of a “subjective”
impairment, e.g., fibromyalgia, subjective
evidence is enough
п‚— Subjective evidence is never enough
п‚— There must always be an underlying
medically determinable impairment
shown by “objective” evidence, e.g.,
trigger points as “signs” for fibromyalgia
Rep: A General Rule Does Not
Include an Exception (I)
п‚—
Bad Argument: A general rule
в—¦ is an absolute rule or
в—¦ has no exceptions
Agency rules can be absolute, e.g., include
mandatory requirements, or general, e.g.,
provide what the rule usually is
п‚— Agency rule makers often allow
adjudicators wiggle room
п‚—
Rep: A General Rule Does Not
Include an Exception (II)
п‚—
Instead of arguing that a general rule is
absolute or has no exception
в—¦ Acknowledge that the rule is general
в—¦ If true, explain why the general rule applies
в—¦ Determine whether the ALJ acknowledged
the general rule
в—¦ Determine whether the ALJ found explicitly
or implicitly that an exception applied
◦ Attack the ALJ’s explicit and implicit rationale
Rep/OGC: No Principle in a Case
п‚— Bad Argument: A
precedential appellate
case is limited to its facts, i.e., includes no
legal principle
п‚— Most precedential appellate cases include
the application of a legal principle
п‚— Prove that a precedential appellate case
includes a legal principle
п‚— There is no Bush v. Gore Social Security
case
OGC: Post Hoc Rationalization
п‚— Bad Argument: The
court should affirm
the ALJ’s decision based on grounds the
ALJ never provided
п‚— SEC v. Chenery Corp., 332 U.S. 194 (1947)
prohibits reliance on post hoc
rationalizations
п‚— Prove that the rationale is post hoc and
that is unreasonable and/or incorrect
п‚— Anticipate post hoc rationalizations
ALJ/OGC: The Claimant is Bad
п‚— Bad Argument: The
claimant is not
disabled because he or she is a bad
person, i.e., morally unworthy
п‚— Social Security Act does not include a
moral test (except for DAA and felonycaused disability)
п‚— Prove that the claimant satisfies the
definition of “disability”
 “Doth protest too much”
ALJ: Use of Unreviewable Standard
п‚— Bad Argument: The
claimant is not
disabled because he or she does not
satisfy an unreviewable standard
п‚— Examples
◦ Claim inconsistent with “totally disability”
Claim inconsistent with an ability to perform
“all work”
п‚—
A claimant does not have to satisfy a nonexistent abstract standard
ALJ: Use of Unreviewable
Descriptions of Limitations
п‚— Bad Argument: The
claimant has a
“limited” ability to do x
п‚— Examples:
◦ “Limited” public contact or ability to reach
◦ “Impaired” ability to concentrate
п‚—A
specific functional limitation must have
intersubjective meaning
п‚— Claimant may be faulted for not clarifying
at hearing a hypothetical question
Rep: Identification of Error Without
Either Allegation or Proof Harm
п‚— Bad Argument: ALJ
made a specific error
without either allegation or proof of harm
п‚— All tribunals, including the Appeals
Council, generally require an error to be
harmful
п‚— When there is no allegation or proof of
harm, a tribunal will generally hold the
error harmless
п‚— Did OGC respond to proof of harm?
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