BAD ARGUMENTS: HOW TO IDENTIFY AND - Eric Schnauferкод для вставки
BAD ARGUMENTS: HOW TO IDENTIFY AND REFUTE THEM NOSSCR Baltimore Conference May 13, 2011 Eric Schnaufer email@example.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 п‚— ClaimantsвЂ™ Representatives в—¦ Significant penalty for making bad arguments Bad Arguments: Where Found п‚— ALJ decisions п‚— ClaimantsвЂ™ representativesвЂ™ written submissions and oral arguments п‚— PlaintiffsвЂ™ attorneys merits documents п‚— OGCвЂ™s merits documents Bad Arguments: Who is Worst Offender? п‚— Finger-pointing is a prototypical bad argument в—¦ The other guyвЂ™s bad arguments donвЂ™t make your bad arguments less bad п‚— п‚— п‚— п‚— Worst offenders found among ALJs, claimantsвЂ™ 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 RepresentativesвЂ™ most frequent lies: в—¦ ALJ вЂњignoredвЂќ fact or factor when the ALJ did not в—¦ ALJ did not вЂњconsiderвЂќ fact or factor when the ALJ did в—¦ ALJ did not вЂњevaluateвЂќ 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? п‚– Can the ALJвЂ™s rationale reconstructed? Rep: ALJ Relied Solely on . . . (I) Presumptive Bad Argument: The ALJ relied вЂњsolelyвЂќ 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 вЂњsolelyвЂќ on a fact or factor when the ALJ relied on multiple facts or factors Preemptively state that the ALJ relied вЂњin partвЂќ on a fact or factor Attack more than just one aspect of an ALJвЂ™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 вЂњlightвЂќ work when the physician was not asked about вЂњlightвЂќ work. п‚— A negative inference is unreasonable if it is a baseless imputation Rep: Baseless Allegation of вЂњBiasвЂќ п‚— п‚— Bad Argument: ALJ was вЂњbiasedвЂќ вЂњBiasвЂќ 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 вЂњbiasвЂќ are baseless; they are mere disagreements with the ALJвЂ™s rulings on the merits Most allegations of bias make a representative appear as an amateur; labeling the ALJ вЂњbiasedвЂќ 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 ALJвЂ™s Errors п‚— п‚— Bad Argument: The representative is to blame for all of the ALJвЂ™s errors Representative is not responsible for drafting the ALJвЂ™s decision п‚— Representative is not responsible for the ALJ misstating facts or violating the law п‚— Representative is not responsible for carrying the CommissionerвЂ™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 вЂњboundвЂќ 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 AgencyвЂ™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 вЂњobjectiveвЂќ for the purpose of 20 C.F.R. В§ 404.1512, e.g., a sensory abnormality, is actually subjective п‚— Since вЂњobjectiveвЂќ evidence is thought to be probative and вЂњsubjectiveвЂќ evidence flimsy, ALJs and OGC argue that вЂњobjectiveвЂќ evidence the purpose of the regulations is actually subjective Rep: Subjective is Enough п‚— Bad argument: Because there cannot be вЂњobjectiveвЂќ evidence of a вЂњsubjectiveвЂќ 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 вЂњobjectiveвЂќ evidence, e.g., trigger points as вЂњsignsвЂќ 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 в—¦ Attack the ALJвЂ™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 ALJвЂ™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 вЂњdisabilityвЂќ п‚— вЂњDoth protest too muchвЂќ 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 в—¦ Claim inconsistent with вЂњtotally disabilityвЂќ Claim inconsistent with an ability to perform вЂњall workвЂќ 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 вЂњlimitedвЂќ ability to do x п‚— Examples: в—¦ вЂњLimitedвЂќ public contact or ability to reach в—¦ вЂњImpairedвЂќ 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?