 You're watching FJTN, the Federal Judicial Television Network, a Federal Judicial Center series for United States Magistrate Judges. Social Security, Process and Problems, Part 1. And now here is the moderator, Judge Aaron Goodstein. Hello, I'm Magistrate Judge Aaron Goodstein of the Eastern District of Wisconsin. Welcome to Part 1 of Social Security, Process and Problems. Joining me for this portion of our program are Magistrate Judge James Glazebrook of the Middle District of Florida and Magistrate Judge Erlander Keys of the Northern District of Illinois. Thank you both for being here. Our plan for this first part of our program is to bring you the insights of these two knowledgeable judges about how to adjudicate a Social Security case both fairly and efficiently. Judge Keys, who before he became a Magistrate Judge was a Chief Administrative Law Judge for the Social Security Administration in Chicago, will tell us about the process a case goes through before it lands in federal court. In a number of districts, Social Security appeals are referred to Magistrate Judges for processing. So before we ask Judge Keys how the case gets there, Judge Glazebrook is going to share with us the methods he has developed for handling this ever-growing part of our case load. Judge Glazebrook? Thank you, Aaron. Welcome, ladies and gentlemen, to the Federal Judicial Center's 12-Step Program to Recovery from Social Security Appeal Overload. My name is Jim and I hate Social Security Appeals. If you too admit that you are powerless over the tidal wave of filings, if you too admit that your lives have become unmanageable, then you have come to the right meeting. This disease is more properly known as Social Security-induced Anxiety Disorder, not otherwise specified, DSM-4 diagnosis code 293.84. Human epidemiologic data show the highest incidence of this disease among United States Magistrate Judges. Only a power greater than ourselves can restore us to sanity, and I'm not referring to the Judicial Conference of the United States. Only you can answer the question of whether you meet the diagnostic criteria for this incurable and disabling illness. Do you have excessive anxiety or worry about your ever-increasing case load of Social Security Appeals and the new reporting deadline? Do panic attacks or obsessive compulsive symptoms predominate in your clinical presentation? Does your disturbance cause you clinically significant distress or impairment in social, occupational or other important areas of functioning? If you answered yes to each of these questions, then the Federal Judicial Center is here to help you to help yourself. Just keep an open mind as one recovering victim describes his personal road to freedom from this progressive illness. In a minute, I will propose an efficient system that you might like to use for tracking and resolving Social Security Appeals. Before I do that, let me take a minute to describe how stressful the working environment has become for Magistrate Judges. The Commissioner of Social Security has shifted visiting ALJs from less burdened circuits in order to process the huge backlog of aging disability applications and to handle the wave of new filings. Processing of the administrative backlog results in massive filings at the district court level. Administrative office statistics show a 49% growth in district court filings of Social Security Appeals nationwide since 1995. Florida, for example, now has 572 appeals pending. That's about 52 appeals for each Magistrate Judge. In the face of such volume, it is an enormous challenge to rule correctly and to produce a report and recommendation or a decision of quality. In other words, a solid opinion that is fully comprehensible on review. Let me tell you about the system that I've come to use in order to efficiently process and to resolve a large volume of these Social Security Appeals. This is just one possible system that you might like to use and to tailor to your own needs. There are many, many variations that work. First you should make a searching and fearless inventory of your docket of Social Security Appeals and then track the appeals on a chart. Here's the chart that I use. Your staff can fill in the boxes as the case progresses from left to right on the chart. As you see, the columns starting on the left include the case number, the claimant's name, the complaint filing date, the answer date. The filing of the answer and record triggers the need for an immediate scheduling order as you may have as little as 10 months to obtain both briefs to decide the case, to draft the report and recommendation, and to allow for the filing of objections to the report and recommendation, and then to allow at least one month for the district judge to consider and rule on the objections. A magistrate judge has more time, of course, to rule on consent cases because no time need be allocated for objections to a report and recommendation. Now the projected completion date should be 10 months from the filing of the answer and record, and then be sure to insert the very first September 30 or March 30 that occurs after the 10 month completion date. This is the date on which the district judge must report the appeal as an overdue pending motion. In our district, all district judges insist on having clean six month reports. We electronically monitor our appeals using web chaser in order to move them along towards a decision, and we electronically review the docket sheets, the pending case reports, and the service and answer reports by restricting the field to social security appeals. On the screen, you can see the scheduling order that I issue on the filing of the answer and record. The scheduling order sets the date for the claimant's brief 42 days off, and the date for the commissioners' brief 42 days after the claimant's brief. This should allow you enough time to resolve the appeal before it becomes reportable. The scheduling order solicits consent and prohibits motions. A very important part of the scheduling order requires each party to submit a copy of his brief on diskette, preferably in WordPerfect 8.0 format for our system. If you end up liking a prevailing party's summary of the medical record, you can save hours of work by downloading those facts into your R&R or opinion. The farthest right hand column on the chart will show that the appeal is right after both briefs have been filed, and that column will also reflect the order in which you plan to resolve the right appeals in light of the reporting dates and in light of the length of time that they've been pending. Now, as general rule, I have not been setting appeals for oral argument. Rather, I've been deciding the appeals based only on the briefs and record. Recently, however, I have begun setting the oral argument in most every case. It's primarily as a calendaring device to be sure that I have addressed the appeal in time for the district judge to reach a decision. After both briefs are in, I can usually set aside the two hours or so of undisturbed time that I need to reach a tentative decision. I always read the following items in this order. One, the appeals counsel's denial of review and the list of any evidence considered by the appeals counsel in denying review. Two, the ALJ's decision. Three, the plaintiff's brief focusing strictly on the precise issues raised. Four, the commissioner's brief. And five, all or parts of the hearing transcript before the ALJ. I then look for any specific items in the record that might help to resolve the specific issues that the claimant raises. Next, I tell the law clerk assigned to the case my tentative view as to how the appeal should be resolved and why. The law clerk then drafts the opinion. There are really only three possible results, affirmed, reversed with an award of benefits below, or reversed and remanded under either sentence four or sentence six or both. Several years ago, most of the cases were affirmed because there was nearly always substantial evidence supporting the decision of the ALJ and the appeals counsel. Now, we encounter many more remands and outright reversals. This may be due to the crush of cases being hastily processed by the ALJ's at a rate of what, 40 to 60 decisions per month. It may also result from a decision by the United States attorney to cede control over social security appeals in the district court to the commissioner of social security through his regional offices of general counsel. The system that I am describing has another very important feature, the model R&R containing the model social security law. In a minute, I will give you one model R&R for adult disability cases and another for the less frequent but very different childhood disability cases. The idea is that you write a model report and recommendation that includes all of the law that recurs repeatedly in disability cases. You write the opinion very carefully the first and only time because you will reuse the model in every case. You will then update the model law section every time that your circuit hands down an important social security disability case and every time that you research a new issue. Everybody is welcome to use my model format for the R&R and everyone in the 11th circuit is welcome to use my model law as well. These materials are available on the JNAT and also may be downloaded as published opinions off of Westlaw. The model format and law for adult disability cases may be found at Bag Air, BAG, UER, the APFEL, 65, FSUP2D, 1345, Middle District of Florida, 1999. The model format and law for childhood disability cases may be found at Hawes, HAWS, VAPFEL, 61, FSUP2D, 1266, Middle District of Florida, 1999. Now a model format provides a tremendous amount of guidance to the person crafting the decision. The format begins with an introductory preface describing the appeal followed by the conclusion right up front, affirmed, reversed, remanded. Part one of the model format calls for the insertion of a very brief procedural history of the case before the Social Security Administration, before the Appeals Council and before the District Court. Part two then calls for the insertion of a two sentence statement of the party's positions on appeal. Part three carefully and fully states the law governing the standard of review applicable in a District Court. Part four carefully and fully states the Social Security Disability Law itself, the statutes, the regulations, the circuit decisions. The model law covers every issue regularly encountered in disability cases, treating physicians, developing the record, medical tests and evaluations, the five steps in evaluating disability, other work that exists in the national economy, pain, credibility. Even if your final decision were to contain nothing more than parts one through four, a reviewing judge at least would know that you were aware of the correct standard of review and the correct substantive law when you reached your conclusion. Part five is the hard part, the blank part. Part five is the application and analysis. The judge should tell the law clerk whether the medical facts written by the prevailing party are adequate to download into the application section as a starting point. The quality of briefs, as you know, varies enormously. Obviously, the facts must be verified against the record. Nothing, however, prevents a court from ordering a party to resubmit proposed findings of fact on discat. Occasionally, but rarely, we must research a new issue. Next, we track the most closely relevant portions of the model law in describing the existing record about this claimant. In other words, we apply the model law to the facts, to this claimant's illness. Often, one can literally download the critical part of the model law into the application section, remove the case sites, and then change each sentence to refer to this particular claimant's illness and limitations. The decision then is nicely tied together and flows logically toward the conclusion in part six. In conclusion, ladies and gentlemen, all available medical research shows that social security-induced anxiety disorder is a progressive illness that can meet or equal a listed impairment. It cannot, however, be cured in the ordinary sense of the term. It can be arrested, however, through total abstinence from handling social security appeals in any form. Where this is impractical, interim relief may be achieved through the caseload control system that I have just described. Newcomers are not asked to accept or follow these 12 steps in their entirety if they feel unwilling or unable to do so. If you are having a spiritual awakening as the result of these 12 steps, however, you are invited to carry this message to other afflicted persons. Thank you and good luck. Thank you, Judge Glazebrook, for that very useful presentation. I am pleased to see that you have been able to maintain your sense of humor about these cases. Clearly, a great deal of what we do on social security cases as magistrate judges is in reaction to what comes to us from the Social Security Administration and the ALJs. Judge Keyes, as I said earlier, was a chief ALJ for the Social Security Administration in Chicago before becoming a magistrate judge. And he has some very interesting information about that process that can help us all deal more effectively with these cases. Judge Keyes? Thank you, Aaron. Each state has a state disability determination services, which we refer to as DDS. This DDS is under the contract with the Social Security Administration to conduct reviews and make initial determinations as to whether claimants are disabled. DDS personnel include physicians, nurses, and vocational specialists who never actually see a claimant. In addition to the DDS personnel, DDS subcontracts work to consultative physicians in the claimant's area who conduct consultative examinations of the claimant only if DDS determines that based on the medical evidence in the file or lack of such evidence, it believes that a consultative examination is necessary. If DDS determines that it has enough medical evidence in the file already to make a determination, it will do so by having one or more of its doctors complete a residual functional capacitance assessment form on RFC and or a mental residual functional capacitance assessment form MRFC, setting forth what the doctor sees based on a review of the medical evidence as the physical and mental restrictions that the claimant has. Examples might be heavy work, medium work, light or sedentary work, dexterity problems or environmental restrictions, working at heights or around moving machinery, or even mental restrictions. These forms are then passed on to the vocational specialists in the same office who will list jobs that the claimant can perform based on the restrictions noted by the doctor. Judge Keyes, could you tell us a little about what type of doctors are employed to make this analysis and how they reach their decisions? Yes, it has been my experience as an ALJ that the doctors are, any doctors that are authorized by the state in which the DDS is located to as a physician can complete the residual functional capacity assessment. On the other hand, if it's a mental impairment, then the MRFC is filled out by a psychiatrist or a psychologist. And I've also known instances where pediatricians have completed the forms even though the claimant is an adult and ophthalmologists have completed them and other individuals who really have no expertise in the area in which, the impairment in which the claimant is complaining of. Now if, during their review, if DDS's review shows that in their opinion that the claimant should have a consultative medical examination, the claimant is sent a letter with the name, address and phone number of the doctor in his or her area who will conduct the examination and direct the claimant to make an appointment for the examination. Now most of the physical examination are conducted by internists, even though the claimant may be complaining about orthopedic, neurological or cardiac problems. Now each state has a set amount that they will pay for a consultative examination and specialists are more expensive. So therefore the internists are certainly less expensive and they are used in most occasions. The examinations typically last about 30 minutes and consist of taking a medical history and performing a general physical examination. Mental examination are conducted by a psychiatrist. Typically if DDS thinks that any mental impairment such as allegations of depression or anxiety is minimal, it will have the physical examiner conduct a mental status examination and report those findings to the DDS. George Keyes, what types of questions are usually asked of the claimant in a mental RFC exam? All questions such as how did you get to the examination today? What is today's date? What year is this? How are a child and a midget alike? How are they different? How are a tree and a bush alike and how are they different? If you discovered a fire in a theater, what would you do? Those types of questions. And supposedly those will inform the examiner as to whether the claimant has a severe mental impairment. Now even though the consultant position is the only person who actually sees the claimant, DDS does not have the examiner complete the RFC form or the MRFC form. That is obviously in my opinion because these doctors in the field, they don't know the significance of their findings on the RFC and MRFC forms vis-a-vis the grid. This has caused a great deal of friction between the DDS and the ALJs. ALJs, they do have the authority to send a claimant for a consultative examination and to demand that he or she be examined by a specialist and that the examiner complete the form. DDS will complain about the expense of these additional examinations and fill out the form, but if the ALJ wishes to have this done, it can be done. In my opinion, it would make sense to at least have some input from the examiner in making this critical determination. Indeed, in practice, the consultative examiners and physicians do not even comment on the claimant's physical or mental capacity. They simply relate the objective findings. Now after the examination by the consultative examiner, a written report is sent to DDS where the MRFC forms are completed by the DDS doctors based on the contents of the report from the consultative examiner and the other evidence in the file, if any. Based on the contents of the RFC and MRFC forms, the application is either granted or denied. When claimants are informed about DDS's findings of non-disability, they are notified of their right to request a reconsideration. If no reconsideration request is filed, then no request for a hearing before an ALJ is allowed. When a request for reconsideration is filed, the case file, including the initial denial and the rationale for the denial, is passed on to another DDS reviewer at the next desk or across the room. And unless additional evidence has been submitted which could change the result, that individual invariably agrees with the earlier assessment and the claimant may request a hearing. Over the years it has been recommended many times that the reconsideration stage be abolished because it is so time consuming and rarely results in any reversals. When a claimant requests a hearing, the case is sent from DDS to the SSA's district office which sends it over to the office of hearings and appeals. Is this then a live hearing at which the claimant appears? Yes, the hearing before the ALJ is the first and only time when the claimant actually sees someone who's making the decision as to whether he or she is disabled. Judge Keyes, what can you tell me about the pressures on the ALJ? For example, how many cases are they asked to resolve each month? Yes, when I first began at the SSA as an ALJ, we were expected to hear and issue opinions in 30 cases a month. That was in 1986. By the time I left there in 1995, it had gone up to about 60 cases a month. It went from 30 to 40 to 50 to 60 cases per month. In other words, we were expected to schedule hear and issue opinion decisions in up to 60 cases a month. Incredible. It is quite incredible. Now, the office of hearings and appeals organizationally is under one of the many associate commissioners of SSA. That is, this associate commissioner for hearings and appeals. While the commissioner is located in Baltimore, the office of hearings and appeals is located in Falls Church, Virginia. They like to consider themselves somewhat independent of SSA since they often reversed the earlier decision of the commissioner, but they do get their budgets and their marching orders from the commissioner in reality. And the associate commissioner for hearings and appeals is treated basically the same as any other associate commissioner. When the ALJ renders a decision either affirming or reversing the decision of ADDS and SSA, the appeals council acting as the final voice of the commissioner can either affirm, reverse, or remand that decision. If the ALJ's decision goes against the claimant in whole or in part, the claimant has a right to file a request for review of the ALJ decision with the appeals council, which is the final step in the administrative review process. Judge Keyes, who sits on the appeals council and how does it work? Well, at the time I last worked there in 1995, the appeals council consisted of 24 administrative appeals judges. They call themselves judges, but they were not protected against removal. They are not appointed pursuant to the APA or protected from removal. They serve at the pleasure of the commissioner. Now any two of them can reverse or remand in this case to an ALJ with instructions to the ALJ as to what the ALJ has to do in order to fix the case. And you can imagine that that has always been a sole point with ALJs having individuals who are not protected by the APA or appointed pursuant to the APA, review those decisions and actually reverse and issue a different decision. That has always been a sole point with the ALJs. Now it is not necessary, it is not necessary that they claim it in a request for review point to specific errors made by the ALJ. It is enough to simply say that the ALJ was wrong. I am still disabled. The standard for review by the appeals council is one, whether the ALJ abuse his or her discretion. Two, whether there is an error of law. Three, whether the findings and conclusions are supported by substantial evidence. Or four, whether there is a broad policy or procedural issue that may affect the general public interest. In addition, the claim it may submit evidence to the appeals council that was not submitted to the ALJ if it relates to the period on or before the date of the hearing before the ALJ. This is again, this is another source part with ALJs because after the hearing and denial of benefits, the claim it's council may obtain additional records, opinions or examination that were not submitted to the ALJ and could result in a different conclusion. Now after all, the standard of review is whether the ALJ's decision was supported by substantial evidence that was in the record at the time of the decision. That is the standard before the appeals council. Now if the appeals council finds that the new evidence submitted by the plaintiff is material, that is that it could have led to a different conclusion if it had been submitted to the ALJ, it would usually grant the request for review and remand the case to the ALJ to consider the new evidence. It could reverse outright based on the new evidence but this is rare. If it finds that his appeals council finds that the newly submitted evidence while new is not material or that the ALJ's decision is supported by substantial evidence, it will deny the request for review and that decision becomes the final order of the commissioner and appropriate for judicial review. Now you may have noticed that, noted the language in the appeals council's form letter, it's upholding an ALJ's decision, stating that it is quote, denying unquote the claim it's request for review. Actually what the appeals council has done is to perform a de novo review of the record and concluded that there is no reason to reverse or remand the ALJ's decision. So the denial of a request for review is a misnomer. When a request for judicial review is filed, the SSA's Office of General Counsel, that is OGC, is notified that the administrative file is sent and the administrative file is sent from the appeals council to the regional OGC. The certified administrative record is filed to the district court and sent to the claimant. Although the United States attorney represents the commissioner, it is the OGC that does all of the work on the case, including writing the briefs. It is not unusual for an AUSA to be completely in the dark regarding the case and unable to answer any questions posed by the court at oral argument. This has caused a great deal of friction between OGC and some of the assistant US United States attorneys, because the OGC feels that their attorneys who are specialists in the field of social security law and who do all the work on the case should be able to defend the case in court in the briefs and at oral arguments rather than having the AUSA who knows nothing about the case defend the decision of the commissioner. Now, when an AUSA requests an extension of time to file a motion, it is usually because the OGC attorney assigned to the case needs the additional time because of the large number of other cases in which briefs are due around the same time. Recently, I have noticed an increase in the number of voluntary remands where OGC, upon reviewing the administrative record, will convince the appeals council that the ALJ's decision is not defensible in the district court. In fact, I have had several cases in which I read the administrative record prior to setting a briefing schedule, had the claimants council and the AUSA in on status and hinted that I, as a formal ALJ, saw problems with the ALJ's decision. The AUSA then relayed my comments to OGC and after considering the record, the motion for voluntary remands were filed. This is a good way of getting rid of those cases, but it does involve a review of the entire administrative record, which I can usually do in about two or three hours. Judge Keyes, can you tell us something about the social security acquiescence rulings and the social security regs? Haven't there been some changes in this regard? Yes, they have. Prior to 1985, when a circuit court of appeals issued a decision which SSA felt was inconsistent, with its interpretation of the law and regulations, it would apply the decision only to the named litigants in that particular case and grant the benefits to that claimant if that was a decision. Then if SSA had other cases with the same or nearly identical facts in the same circuit, it would ignore the court of appeals decision in the earlier case. It would often even acknowledge the earlier decision but state that it was contrary to the rules and regulations of SSA. You can imagine how this went over with the courts of appeals when SSA had other cases before them. If the claimant in the later case did not know about the earlier case or was financially unable to appeal to the district court and later to the circuit court, SSA would have prevailed in its denial. Then in June 1985, reacting to scathing criticism from the courts and the Congress, SSA announced a new policy wherein it would thereafter apply conflict in circuit court decisions to later litigants but only at the hearing level. In other words, it would continue to apply the prior interpretation to cases to deny benefits at the initial and the reconsideration stages but will acquiesce in the circuit court's decision and grant the benefits if the claimant was persistent enough to request a hearing before an ALJ. Then after much more criticism, SSA in 1990 extended its acquiescence policy to all components including the state DDSs and the district offices. You can find a list of all acquiescence rulings from 1990 through March 12th of 1999 starting on page 1041 of the current 20 CFR parts 400 to 499. Now there are important differences between acquiescence rulings and social security rulings or SSRs. Acquiescence rulings are no more than concessions to the appeals court in the circuit which issued the conflict in decision and only applies in that circuit. They are published in the federal register which rulings specifically state that they are applicable only in that circuit or circuits. Social security rulings like acquiescence rulings are published under the authority of the commissioner. They make available to the public a series of precedential decisions and may be based on case decisions made at the all administrative levels of adjudication, federal court decisions, OGC opinions and the commissioner's decisions. SSRs are also initially published in the federal register then compile by social security ruling numbers in bound volumes. Although SSRs do not have the force of social security law and regulations, they are binding on all SSA components throughout the country and may be relied upon as precedents and adjudicating other cases. And SSR may be superseded, modified or revoked by later legislation, court decisions or rulings. Judge Keyes, I have a question about reversals and remands. What are the most frequent grounds for reversal and remand in your experience? Well, I have compiled a what I call the top 10 basis for remands or reversals of ALJ's decision. And these are the most frequent basis for remands in my experience. Number one, the ALJ failed to use a medical expert where medical evidence is unclear. Number two, the ALJ failed to use a vocational expert where the claimant has severe non-exertional impairments. Number three, the ALJ failed to give weight to the psychological or psychiatric evaluation obtained by the claimant's attorney, even though there is no contrary evidence in the record. If the ALJ had doubts about the validity of the evaluation obtained by counsel, he or she should have ordered a consultative examination and or had a psychiatrist testify at the hearing. The ALJ cannot make this medical decision on his or her own. Number four, the ALJ cites evidence both in favor of and against the claimant and gives more weight to the latter without specifically stating why it was more credible. Five, the ALJ indicates on the record that he or she believes that the claimant should have a consultative examination but renders the decision without obtaining one. It is clear that the ALJ has a duty to develop the record even if a plaintiff is represented by counsel. Number six, the ALJ uses the grid at step five to find the claimant not disabled when the record shows that the claimant may have a severe non-exertional impairment, such as one arm loss of dexterity, manipulation, mental impairments or environmental restrictions or the like. A vocational expert should be called in such instances. Number seven, there are indications of bias by the ALJ based on questions asked or comments made during the hearing. Now some lawyers will bait the ALJs into making mistakes so that the case can be remanded to a different ALJ. Number eight, there was a failure to comment on the testimony of the plaintiff's witnesses while assuming that they are biased and will say anything in order for claimant to get benefits. The ALJ does not have to credit their testimony just because it is consistent with that of the plaintiff which usually it is. However, he or she does have to mention it and make the appropriate credibility resolutions. Number nine, the ALJ fails to mention a whole line of evidence which if believed could arguably result in a finding of disability. Now although the ALJ does not have to cite every piece of evidence in the record, he or she cannot cite only the evidence that support his or her ultimate conclusion of non-disability. The ALJ must cite the contrary evidence and explain why he or she gives less weight to it. And number 10, there are inconsistencies between the ALJ's findings in the body of the decision and the severity of mental impairments indicated by checking the boxes on the psychological review technique form or PRTF. This is referred to as the quote B criteria, unquote. For instance, if the ALJ has indicated in the decision that the plaintiff has a severe mental impairment but that it would not preclude the performance of work, but on the PRTF, he's checked two or more boxes under the B criteria at least in the marked range. Then the plaintiff under the law actually meets a listed impairment and is disabled at step three. Remain is appropriate for the ALJ to resolve these inconsistencies in that regard. Thank you, Judge Keyes. You will now be known as the David Letterman of Social Security Appeals. However, I'm sure the combination of that look inside the Social Security Administration and your current perspective as a magistrate judge will prove valuable to our viewers. I would like to look at one last aspect of this topic before we end our program, the use of oral arguments in consent cases. In a number of districts across the country, magistrate judges handle Social Security appeals with the consent of the parties. The most obvious benefit of this method is that the appeal can be handled more efficiently and with less time. This is because the magistrate judge need not prepare a report and recommendation. Handling a case on consent also avoids additional briefing by the parties and review by the district judge. Of course, some litigants want the opportunity to have a second kick at the cat so they decline to consent to the magistrate judge. Magistrate judges will receive cases on consent by a variety of assignment methods. But an increasing number of districts are placing their magistrate judges on the civil assignment wheel, which includes Social Security appeals. It should be noted, however, that even if the magistrate judge receives the matter on consent, there is the same need to have in place an efficient method of processing these cases, such as mentioned by Judge Glazebrook. There is no need to comment on the preparation of a written decision in a consent case, although the decision usually involves less extensive reference to the administrative record since it is not being reviewed by the district judge. I would like to comment on another method of deciding a case on consent, which is the use of oral argument and rendering a decision from the bench. If used in the proper cases, this can be a very efficient method for resolving a Social Security appeal and one that avoids a written decision. First of all, what do I mean by the proper case? I find that oral argument will not work well in prosaic cases for obvious reasons. It may not also work in those cases that have complex or unique issues of law. In those cases, you may wish to write a decision, although oral argument could be helpful if the party's briefs have not answered all of your questions. Once you have selected cases for oral arguments, send out notices to the parties. I do not schedule more than two cases per day and allow approximately two hours for each case, which includes time for oral argument and delivering my decision. Since the government's case will be argued by attorneys from the regional office of the Office of General Counsel, an in-person court appearance may not be possible if the distance between the regional office and the court is great. In our district, the regional office is 90 miles away, so that does not present a problem. In some districts, oral argument is done by telephone, and I'm not certain if video conferencing has been utilized anywhere. I would find that preferable to telephone since I find that some attorneys will make an argument over the phone that they would not dare to make when they have to look the judge in the eye. Our district's briefing procedure encourages the parties to narrow the issues prior to oral argument. Our scheduling order limits briefs to 15 pages, so it forces the parties to concentrate on the issues that have some merit. If you permit more extensive briefs, you may wish to consider requiring the parties to submit an abbreviated version prior to oral argument, one which highlights the crucial issues. I do not set any time limit on oral argument, but find that they last about a total of one hour. I usually set the tone by asking the attorneys the questions that are on my mind after reading the record and their briefs. Let me emphasize here that you cannot avoid a review of the administrative record by holding oral argument. You have to do the same preparation that is necessary if you are writing a decision or a report and recommendation. This is because you must be familiar with the record and the issues in order to ask intelligent questions and in order to render a decision from the bench. In other words, this is not a work avoidant scheme. What are some of the advantages to oral argument? First of all, I find that the parties concentrate on the crucial issues which are often narrowed to one or two issues. Second, you can ask questions and get answers. Counsel are unable to equivocate or dance around an issue as can be done in a brief. As a result, you may obtain a concession from a party. For example, on the issue of waiver of counsel by the claimant at an administrative hearing, the government at oral argument may concede that an inadequate waiver was obtained. The issue then becomes whether or not the record was fully and fairly developed and whether the claimant was prejudiced by the lack of representation. I think that the major advantage of oral argument is that you issue a decision from the bench. Since I have fully prepared for oral argument, I usually take about 15 minutes at the conclusion of the arguments to review my notes and then return to court. In my decision, I state my reasons, but skip over the usual boilerplate and factual chronology that is contained in every written decision. In other words, I say, let's skip the procedural history which is in your briefs. There is no need for me to spell out the five-step test, which we all know. And let me get right to the heart of it, which in this case is the ALJ's finding at step five. Even if you are not prepared to issue a decision from the bench, oral argument may be beneficial if you have received answers to important questions and maybe have received a concession from the parties. In that case, however, you should follow up with a written decision while the matter is fresh in your mind. Otherwise, you will have unfortunately invested more time in the process than you can afford. After rendering an oral decision, it is still important to issue a brief order and judgment. If the case is to be remanded, the government has requested that my written order spell out the directives to the commissioner on remand. In other words, what is to be done? Finally, I've found that the attorneys like oral argument. What attorney doesn't always believe that they will be able to persuade the judge as to the merits of their case? For the attorneys from the regional office, it gives them an opportunity to experience a court hearing. Most importantly, the parties usually get a quicker decision. I suggest that if you handle social security appeals on consent, you may wish to try oral argument to see if it works for you. Well, that is it for the first part of our program. I want to thank judges' glaze-broken keys again for sharing their experience and insights with us. Be sure to join us for part two of our program when we will be discussing several issues at the core of the Social Security Appeals case from the perspectives of all of the different parties involved. Until then, for the Federal Judicial Television Network, I'm Judge Aaron Goodstein. Thanks for watching.