 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 2. And now here is the moderator, Judge Aaron Goodstein. Hello, I'm Magistrate Judge Aaron Goodstein of the Eastern District of Wisconsin. We're in the Part 2 of Social Security Process and Problems. In this part of our program, we are going to look at some major issues surrounding the adjudication of a typical Social Security case from the perspective of its various participants. With me to help explore these topics are Arthur Freed, General Counsel of the Social Security Administration, Lawrence Levy, a Social Security Administration attorney who tries these cases, District Judge Robert Pratt from the Southern District of Iowa who often hears such cases, and Nancy Shore, Executive Director of NASCAR, the National Organization of Social Security Claimants Representatives. Thank you all for being here. Let's start our discussion right at the very beginning, establishing a claimant's residual capacity or RFC and it's used throughout the process. Larry Levy, why don't you tell us what actually happens at the agency level? Residual functional capacity measures what work-related activities an individual can actually perform despite his or her physical or mental limitations. It's not a measure of whether an individual is disabled, but it's used at the final two steps of the sequential evaluation process. At the fourth step in determining whether an individual having these abilities and limitations can perform his or her prior work, and if not at the fifth step in determining whether there's other work such an individual could perform. Since it's determined initially at the fourth step of the process, the burden of proof is on the claimant to prove his or her RFC. RFC additionally takes into account the totality of the evidence, both the medical and non-medical evidence including a claimant's own subjective allegations, reports by third parties, daily activities, and the like. RFC is determined at the first two steps of the process at the initial and reconsideration levels by an adjudicative team composed of a disability examiner and a state agency physician and at the hearing level by the administrative law judge. Nancy, from your perspective representing claimants, where do you find that this, a finding of disability is most often made in the process? I think of the cases that our attorneys see, the cases that come into federal court. It is at step four and step five and that's why, as Larry suggested, the residual functional capacity finding is really crucial because it's with that RFC finding in light of the claimant's age, education, and work experience that a finding of disability or no disability is going to be made. And at step four and five, would that be normally before an administrative law judge at a hearing? Absolutely. I think in the vast majority of cases where the evidence is very clear cut, many of disability claims are paid by the social security administration before those claims get to the administrative law judge hearing level. But once we start looking at the universe of cases at the ALJ hearing level and coming into the federal court system, you're going to see issues revolving at step four and most particularly step five and the residual functional capacity is really the key. And I take it from your perspective, you would say that every claimant should have representation at those steps? It is, I think without question, a very valuable contribution to the case if a claimant has a skilled advocate. Social security disability determinations have become increasingly complex. The case law, social security rulings, acquiescence rulings, regulations, it's pretty overwhelming for a claimant to handle on a pro se basis. Taking a pro se basis, Arthur Friede, how does the administration, the agency deal with claimants that are pro se? What efforts are made to try and get them representation? Well, we provide for individuals when they ask for hearing before an administrative law judge with information concerning where they can go to get legal services, particularly free legal services, in the communities in which they live. And I might add, there's been a rather dramatic change over the past 20 to 25 years. Whereas initially in the process, only about 20% of the claimants were represented at the hearing process. That's flipped currently to where we have an excess of 80% of the individuals who appear before administrative law judges at the hearing stage are represented by either an attorney or a paralegal. Also I want to add, we're talking really about the appellate process mainly today. We have anywhere at the initial stage that Larry Levy mentioned before, before the State Disability Determination Services, we have anywhere from two to three million claims filed a year, and as many as 500,000 of those may be allowed at that stage in a particular year at the disability level. And we're talking about out of those, as I said, two to three million claims appeals of perhaps four to 500,000 a year to the administrative law judges, and many few or maybe only 12 to 14 to 15,000 ultimately get appealed to the federal court level. Judge Goodstein, before we leave this issue of RFC, I think it's paramount that we understand that you started at, I think, the most appropriate place for the adjudication of these claims at the appellate level, as Arthur suggests, because we have to understand that I'll probably speak more today of my circuit law. I know you're in the seventh circuit and I'm in the eighth. Practitioners and judges will become more familiar with their circuit law as they do these claims, but in my circuit, for instance, the judges have told us of our Court of Appeals that the most important consideration in most social security claims, and certainly of the claims that get to federal court in the review process, is the residual function of capacity. And if I can take the time to disagree with counsel for the Social Security Administration for a moment, I find that oftentimes we don't focus, we reviewing courts, don't focus on the most important thing in these claims, which is a determination of residual functional capacity. The development of that medical evidence, be it from a practicing doctor who has actually seen and treated the claimant for a period of time or a consulting doctor, which of course cannot be used to fulfill the substantial evidence burden that is on the secretary, goes a long way to determining where the claim will end up. So I think if reviewing judges do nothing more than look at the quality of the medical evidence, they'll go a long way towards doing what the law demands, and that's giving a substantial evidence review to the medical evidence prong of residual functional capacity. I think RFC can't be looked at just in terms of past relevant work, but we have to look at what the medical is, what the person can do on the level of the five ranges of classified work that the secretary has, and then proceed from that basis. And I've required the secretary to point out in their papers that are presented to the district court where they have determined the residual functional capacity evidence is. It makes my reviewing of the claims much more efficient and to the point. Well, and as you point out, we're limited to the record that's presented to us in court, but you want the attorney for the general counsel's office, the regional counsel's office to point out how that RFC determination was made or where it was made. Exactly, exactly. Larry? Yeah, I don't think that's inappropriate. And in fact, we're generally able to do that, hopefully in these cases. I would take issue with one statement by Judge Pratt that a consultative examination cannot constitute substantial evidence in support of the agency's determination. I believe that the case law is to the contrary, particularly since Social Security enacted in 1991, a comprehensive set of regulations on the evaluation of all medical evidence that includes consideration of a number of factors, including specialization, observation of the claimant, length and presence of any treatment relationship, supportability of the opinion in light of the objective medical evidence, and consistency of the opinion both internally and in terms of the other evidence. And I think many, many courts have held that in fact, in properly weighing those factors at times, a consultative examination can constitute substantial evidence in support of the government's determination. Well, we'll have Judge Pratt an opportunity later to see if you're correct on the law and we'll have him make his ruling. But I did want to talk about another issue that goes hand in hand with that first stage and what happens at that first stage. And that's the requests for voluntary remand. We seem to be seeing more when I say we in the court system more requests for voluntary remand. Arthur Fried, tell us about this process from your standpoint. The attorneys for the Social Security Administration attempt to look at cases as early as possible in the process to ensure that they're defensible. As Nancy and Larry and Judge Pratt have indicated, the RFC process, particularly at step five, is one of the critical areas. But there are many areas that we review when we evaluate the transcript. And if we have information, if we have a brief or some information from the plaintiff's attorney, from the claimant's attorney, we certainly evaluate that. And our intention is to review the cases to ensure that they're defensible. And if we make a determination that we don't believe a particular case is defensible, and as you said, we have been doing that in somewhat increasing percentage of the cases. Roughly now, we request voluntary remand in about 30% of the cases. And we would initially go to our client, the Office of Hearings and Appeals of the Social Security Administration, and indicate to them that we believe the case ought to be taken back for further review by the agency. They will agree to that in the vast majority of circumstances. And then we would go to the court and request the court to issue an order of remand to send it back to the agency. Because we've found a defect generally in process. It's rare that we believe that the outcome is incorrect at that stage. Usually we make a determination that the administrative law judge, for example, has not appropriately analyzed the evidence and specified how he or she made a determination on RFC, for example. Or how he or she decided to evaluate and consider a consultative exam versus the treating physician of the individual. So we would request that the case be remanded. What we're finding also in some cases, and this is with increasing frequency probably due to the activities of Nancy Short and her organization, is that the claimants attorneys will ask for conditions to be placed in the order of remand. Sometimes the request is to assign the case to another administrative law judge. Sometimes it's to specify a time frame within which the case has to be handled on remand. Unfortunately, and we're working very hard to improve this. The time frames with which the agency adjudicates cases at the hearing and administrative appeal level are far too long and we're working very hard to shorten them. And sometimes the play of attorneys request other specifications in the order of remand. But on occasion they believe that the case shouldn't be remanded. That the court should order that benefits would be paid. So we could litigate in court, for example, the plaintiff's attorney saying benefits should be paid. And we wouldn't defend that case. We would say we think it ought to be remanded and benefits should not be paid. Sometimes litigation is about that. And occasionally we also litigate around what the specificity of the order. The problems we encounter with placing specificity in the order is, there are a myriad of circumstances that can occur after the remand that wouldn't be taken into account by the remand order and might make any provisions in the remand order inappropriate. And also, as I said before, we have a pallet system which handles approximately 500,000 hearings a year. And to attempt to separate some cases out from the appellate system to process them even either more quickly or to assign them in a different way or place certain specified procedures on them is not something that can easily be handled in our appellate system and would probably result in greater delays and perhaps greater process errors for other cases. So our preference very strongly is to remand the case. The Office of the General Counsel and the Appeals Counsel will provide what instructions we think are appropriate to the administrative law judge to handle that case, but they wouldn't be bound to it as in the court order. Nancy, I, Paul. Arthur, excuse me. What I like to do from my perspective when your office comes in or the local U.S. attorney comes in and asks for a remand based on an undeveloped record at whatever stage, what I like to do is seek input from claimants counsel at that point because our circuit as a test of whether you reverse a remand is really discretionary matter with the court and if it will quote, unduly delay the receipt of benefits, I ask for input from the claimant because if it's going to be a situation that's not going to enter into the result and I'm ultimately going to get there anyway, I want to pay that case and if I'm wrong on it, the secretary can seek review of my ruling to the court of appeals. But I think that you've been very responsive about seeing these cases and identifying them. I think what we judges and law clerks often don't see, I tell people this about social security, is we're dealing here with the largest adjudicatory body in the world. So a 30% voluntary remand rate I think is unacceptable and I know you're working very hard to reduce that, but my sense is that we don't reverse enough of these cases and we should put them out of their misery earlier than we do. Certainly it's appropriate to ask for the plaintiff's position when we request remand and we agree with you, at principle at least, that the intention of the system is to provide benefits to eligible claimants as early as possible in the process. We differ with you perhaps on who has the discretion to do that. We generally argue in all but the most egregious cases that it's the commissioner's discretion to determine when someone is eligible. Let's find out from the plaintiff, let's see what the plaintiff's view on remand is. I think from the plaintiff's perspective many times too often the request for voluntary remand is really the second bite at the apple. It's really an acknowledgement that something is deficient in the case and the commissioner wants another chance to do it again. I think reasons that plaintiff's attorneys have become increasingly resistant are directly related to length of time, that the case is now here, the case is before the court, if the plaintiff's counsel feels confident, the record is adequate to make a finding of disability, let's just do it right now, but if the case has to be remanded our experience has been that the length of time involved as well as the lack of specificity so that frequently the case will make its way back down to the administrative law judge who will open it and say, I have not a clue as to what the district court wants me to do. So you would concur with Judge Pratt that there should be some specificity in this order of remand. Absolutely. Judge Pratt, you said that you would ask and seek input from the claimant's attorney but so often we have prosa litigants representing themselves. What type of input on an order for remand to request from remand can you get from prosa litigant? Well, that's a very good question. I think the answer is probably none. It's going to be helpful and I find the Social Security Administration, generally when they get to the point that they've asked for remand, have a good grasp of the facts and the law so their request is made in good faith. I think any district judge or magistrate judge who pays the case because they're mad at the administration for asking for the voluntary remand is misusing his or her judicial power. You should only reverse the case if you're convinced on that record that you have in front of you that it mandates a payment. And I'm not suggesting that judges pay these cases because they're mad at the government here. If they do that, they're not doing their job because our duty is to that record. My suggestion is that many of these cases that are remanded, I rarely remand. When I find a legal error and I think that me sending it back will unduly delay the receipt of benefits, I order the case paid and if I'm wrong on it, I think the burden ought to fall on the government to get the Court of Appeals to take a look at that case. Nancy, I think, is correct that many times these voluntary remands are the second bite of the apple. And whether you characterize them as the second bite of the apple or not, I think at bottom we agree. The reason is because we determine that the process has not been appropriately followed through the administrative hearing level and that the Social Security Administration ought to have the opportunity to do it properly so that the individual gets a fair adjudication of the claim. We're working very hard to avoid that. Actually, we're attempting to improve the process at the very beginning before it even gets to the hearing level so that we pay as many eligible claims as possible early in the process. We also have a hearing process and an appeals process improvement initiative so that we can limit the number of times, number one, that people need to go to court and also to address the issues of reducing the incidence of request of voluntary remand. Let's now move to the area the case has not been remanded but now it's in federal court and the judge has to be faced with resolving that matter. I know that a number of judges and magistrate judges hold oral argument and often rule from the bench. Let me ask you what you think of that procedure. Nancy? I think it's difficult to generalize but I think in appropriate cases oral argument can be extremely helpful. I think it often provides an opportunity for the plaintiff's attorney to humanize the case a little bit. After all, in a typical situation, no matter who's in the courtroom, there's only one person there who knows the claimant, who knows the claimant as an individual and I think many plaintiff's counsel regard oral argument of course traditionally is an opportunity to expand on important points, important factors in the case but also to convey a sense of what this person's life is and what the difficulties are that they're facing. I think oral argument may not be necessary in every case but it can in the appropriate cases provide a terrific vehicle to humanize a plaintiff getting away from just the paper record. Larry would you agree or disagree with that? I think in many cases perhaps most cases the facts and the issues in these cases are fairly well settled and the court's function is a narrow one to examine the administrative record and to determine whether substantial evidence in the record as a whole supports the determination that's been made so in the vast majority of cases I think the facts and written arguments are adequately set forth in the written documentation provided to the court. There may be cases that are particularly complex either factually or legally or may involve unsettled areas of law and in those cases certainly oral argument could be useful. Our office welcomes the opportunity to participate in oral argument whenever the court's view it as appropriate and as helpful. Judge Brad? I think Judge that it's important to have oral argument in many cases to flesh out issues and get concessions really from both sides about things that the court doesn't have to decide whether it's substantial gainful activity whether it's a trial work period whether it's a vocational expert's testimony. I think that one of my favorite parts about this and I'm a relatively new job is oral argument on motions I think is one of the most underlawyer parts of our job litigation magazine did a piece on this. I think Nancy's point about humanizing this process making that claimant and even government counsel know that there's actually a person charged with reading this record I think it enhances the credibility of the law in the system to know that there's a real person and not a rubber stamp at the end of this process and if we do nothing but enhance the credibility both of the adjudicatory process that SSA has gone through and then the judicial review process I think that it's helpful but more importantly I think fleshing out issues that needn't be addressed by the courts is equally important. It seems that you might even want the claimant to appear at these oral arguments to see that there is a human being and not just a bureaucrat. I think I think the claimants are important there I think that we ought to keep in mind as as Larry mentions that this is after all a substantial evidence on this record review I would take exception to his use of the word narrow I don't think it's a narrow review that we're engaged in the review that we're engaged in under the substantial evidence on the record as a whole test mandates a much broader review than just looking at one side of this equation you can almost always find in any record it seems to me sufficient evidence to arrive at any conclusion therein lies the difficulty when you look at both sides of the equation and have to balance and weigh as I think the law mandates we do then the difficulty comes in arriving at the appropriate decision so yes I think enhancing the system's credibility with claimants and with SSA is a very important part of our job. We've mentioned a couple times the second bite of the apple that term usually comes up when we refer to report and recommendations as a magistrate judge we are referred a number of socials in a number of districts we do social security work and often on report and recommendation to the district judge in some districts the parties consent but it seems to me that a report and recommendation might be given the litigants a second bite at the apple Arthur. Well of course the use of magistrate judges in the federal courts is a very significant way to increase the speed of the system and use the resources of the federal courts and we will frequently agree to the referral to the magistrate for report and recommendation usually that's done not at the insistence of either the government or the plaintiff usually it's done as part of the court process where the court rules or the judge's rules would either require or suggest that it be referred to a magistrate where we exercise judgment in that process is whether it should be report and recommendation back to the district judge or whether we would consent to the magistrate judge being making the final decision for the district court level in that case. Let me ask you judge Pratt I don't know if you take these matters on report and recommendation handle them on your own well what's your view of that? Well I had a social security practice before I was confirmed and began serving this job so my my own sense is that other than criminal matters and requests for injunctive relief I think these cases get the highest priority in my courtroom and really in our circuit if I can speak with respect to what I think our court of appeals has done I don't know Arthur may have better statistics or Larry on this or perhaps Nancy but I think the the average case if there is such an animal is worth $200,000 over the life of that award and attendant medical benefits whether it's under Medicaid or Medicare so I think if you and the person is paid in and the employer is paid in here so to me it's a matter of what's due the claimant and I think the claimant is due whatever kind of first class judicial review we can accomplish and I don't suggest that that can only be done by an article 3 judge because I know magistrates do a good job at this as well but again I think it's enhancing this review process that's essential to what we do. Nancy any view on this? I think that the magistrates have a very important role and a lot of them have become extremely knowledgeable about social security law and I think of writing first class reports and recommendations I think that it would be only natural in terms of question as to whether counsel would accept a consent order as opposed to report and recommendation all the variables would be looked at from the opposite direction from the plaintiff's perspective and from the government's perspective so there certainly would be individual instances that I'm sure one side or the other would be most agreeable and that would probably be the exact case in which the other side was not agreeable so I think a hard and fast rule that every case would be referred on a consent basis would probably not be helpful. Well whether it's the magistrate judge or the district judge that's going to be sitting on these cases that judge sits as an appellate judge and Nancy I understand that the Supreme Court is currently looking at a case that may affect the way in which we judges handle these appeals. Right it's a kind of an interesting example the law is dynamic and no matter what we say today things may look very different by perhaps early June. The case that we're speaking about is the Sims case which the court had oral argument for on March 28th the case is crucially important because it involves an issue as to whether or not the court will hear issues for the first time in district court that is issues that were not raised at the appeals council the last step of the administrative process and this will the court's decision here is going to have a very could have a very significant result for the job of judicial review. Larry any knowledge of that case? Yes I agree with what Nancy said I think the circuit law currently is in conflict concerning whether a court may refuse or decline to hear contentions that were not raised at the administrative level and I think we're all looking forward to the Supreme Court's resolution of the issue and establishing a uniformity in this area. Let me add a couple notes on that first the theory behind that is that all issues ought to be raised and addressed initially at the administrative level by the agency involved and we are certainly very strongly supportive of that that we would like to the Social Security Administration would like to an ought to have the first opportunity to decide on issues that a claimant or a claimant's attorney in this case believes are significant for the adjudication of the case. The doctrine essentially is a court raised doctrine it's not one that the Social Security Administration initially promoted we only raise it when the individual is represented at the administrative level we don't raise it for pros and claimants we don't believe it would be fair to raise it in those instances and it essentially is one so that the court can be ensured just the same as the Social Security Administration would like to be assured that they're reviewing issues that were raised at the administrative level and not deciding in issues anew when there is an administrative process that's there precisely for that purpose. Well I'm not going to ask any of you to project what the Supreme Court is going to do although it may look make you look very good or maybe bad but let's again turn to the judge as the appellate judge and Judge Pratt we hear so much about substantial evidence and what that means at this level why don't you tell us a little of how you approach these cases for decision. Well that's I think Judge the essential problem that we all have here and that's Potter Stewart is often quoted with respect to obscenity that I know it when I see it perhaps we can say that about substantial evidence. My problem is that we trial judges this is an animal that's different from most of our work we're used to live witnesses and jurors helping us make factual determinations. I think the difficulty is we've been transformed suddenly to appellate judges and viewing the evidence in a cold record if you will sense as opposed to live witnesses is the difficulty we have I for preparation purposes got to revisit three or four times I read Justice Frankfurter's opinion in a universal camera I think too often we overlook what that opinion tells us and I tell my law clerks that it's not enough that we just look at one side of this evidence and it's not just that we search the record trying to find a way to get to where the agency be it social security or another agency is but what we really have to do and this is a word that may trigger I hope some discussion is I think that we have a duty to engage in what Frankfurter called a scrutinizing analysis of the record of the facts and then we have to balance and weigh out and I know appellate courts use for us all the time you're not to do it de novo but you're not to just look for the evidence that supports it so it's kind of this midway place and other than knowing it when I see it I don't know a way to get there but I do think that we have to resolve conflicts in the record and see if those conflicts are resolved consistently with the concept of substantial evidence Nancy is it difficult to get your clients to understand the role of the trial judge in this process don't they feel they just want to try the case again absolutely the typical claimant says well we're going to go to court and I'll be testifying it'll be just like the proceeding before the administrative law judge it's very hard for them to understand that all the judge is going to be looking at is the existing record and possibly any new and material evidence which has been submitted but I think the the claimants feel extremely disconnected from the process at this point which is unfortunate so going back to this oral argument would it be helpful maybe to have a claimant appear at an oral argument so at least he or she sees what's going on absolutely in fact I think Judge Pratt has on occasion welcomed the claimant as an observer certainly there's no testimony being taken it's not for any purposes connected with the outcome of the case but simply so that this individual can see the full panoply of attention that's being brought to their case yeah I think it's important to point out though that the substantial evidence standard of review to which you refer is a deferential standard of review that even if the court would resolve the case differently on a de novo basis the government's decision has to be affirmed if there's substantial evidence in that record supportive of that determination I think that's also hard sometimes for claimants to understand they say well my lawyer says I'm disabled how can the government's decision be affirmed but it has been stated to be a deferential standard of review well if I can take exception Larry I don't really remember seeing the word differential I agree with you that after a review of the record if you as the judge are left in doubt as to what the outcome ought to be that doubt should be resolved in the government's favor because we are not to second guess ALJs or appeals council decisions but if you have firmed out after as frankfurter said canvassing that entire record if you're left with the conviction that that ALJ made an unreasonable choice then I think it's the duty of the law to interfere with that administrative determination so I don't think it's deferential in the sense that I give up my judicial review function and let an agency decision stand that I think is the result of an unreasonable choice but the real issue is what's the definition of unreasonable choice is unreasonable choice I would have made a different determination because I'm looking at all the evidence and weighing it and I find evidence to be powerful that the administrative law judge gave less credence to which I don't think is the standard or is the standard and it's been described in some context as is there a centella of evidence to support the decision is the standard that looking at the evidence as a whole obviously looking at both evidence that supports the decision evidence that doesn't support the decision that there is enough evidence in the record to support the decision that the administrative law judge made and that's the standard that I think the Supreme Court and all the circuit courts have indicated should be there and I think what you see today because of the very significant importance of the individual of these cases as you mentioned and also because of the great sympathy there is for individuals who have all these people have significant impairments the issue is not whether they have impairment or their ability to work or lives are made greatly more difficult by them but whether they're disabled under the definition of the Social Security Act and I think that Larry is right that when you get down to the weighing the evidence that if there is evidence if there is substantial evidence to support the decision even if you think even if a judge believes that the decision should have come out otherwise or even if the judge believes that there is significantly stronger evidence on the other side if there's evidence to support the judgment that the administrative law judge made the case should be affirmed well there's often a problem with the evidence on the other side the contrary evidence and maybe how well the ALJ tells us he is not persuaded by that evidence and and often that's a problem on review Arthur I don't know if I disagree with what your definition because I think you are right I guess what I'm saying is an unreasonable choice to me is balancing and weighing the evidence if I'm convinced after balancing and weighing the evidence that the treating physician for instance said this person at an RFC of sedentary and a sedentary RFC gets the person to a disabled decision and he accepted or she accepted the report of a consulting examiner on a one-time basis I think that's an unreasonable choice in my duty under 405 G in the substantial evidence test is to intervene and reverse that case I would agree with that if the administrative law judge did not adequately explain the reasons for accepting the consultative exam and rejecting the treating physician and as Judge Goodstein said I would consider that a procedural issue and not a substantial evidence that the judge had not followed the rules of adjudication that we have that require balancing and an explanation of why particular evidence is accepted and rejected rather than considering that a substantial evidence case which would lead to perhaps a reversal but I think this kind of gets us where we came in because of Larry's comment about a consulting examiner can sometime be used to reach a decision with respect to RFC I don't say that it can never be used but I think it's the rare case that you accept a consulting reviewer as substantial evidence to determine RFC in the substantial evidence context I mean well certainly the rules are that a treating physician depending on the length of treatment and the knowledge of the individual has a strong role and should be given a strong weight in the adjudicatory process however again the administrative law judge looking at the record as a whole can choose based on substantial evidence to the contrary to reject a treating source's opinion Judge Goodstein we haven't in my view taken advantage of your expertise I know you've done this a long time let me ask you do you think we'll use words like defer and weighing the evidence that were engaged in de novo review are we engaged in a substantial evidence review I thought I was supposed to be asking the questions these are these are difficult questions in a difficult area and I think I go back to what you say when you said you sort of know it when you see it we're somewhere we're not the rubber stamp on the administrative agency but we're not the de novo review for the claimant because all the people that come in are disabled to some extent but are they disabled under the act and so sometimes it's a matter you you play with the words but I think you have to just make a serious review of the record and and see that if the ALJ that the ALJ considered all of the evidence and considered even the contrary evidence and gives a reason or some reason for rejecting it then I feel comfortable in either affirming or reversing and frankly the rationale is the area that agency adjudicators have the most difficulty with and it's the area we're paying the most attention to at both the initial level and the hearing level to ensure that we improve the quality of the rationale the explanations of the decisions that we make I think one category of cases that is especially interesting to think about in the substantial evidence context are own motion review cases which are are are coming along in increasing numbers these are instances where the administrative law judge has issued a favorable decision has found the individual disabled and entitled to benefits and the appeals council has taken own motion review and said no the administrative law judge decision is wrong the person is not disabled person now goes into court so it becomes a very interesting record because I think the the federal judiciary is accustomed to looking at ALJ's issuing denials and all of a sudden there will be a certain number of cases coming along in the system in which the ALJ has made favorable findings and produced a favorable outcome and these are cases now I think that present a special challenge as you look at the substantial evidence test I think what makes all these cases particularly difficult in the evaluation of whether substantial evidence supports the government's decision is the fact in the courts are frequently recognized that there's a zone of choice in these cases within which reasonable decision makers can reach variant conclusions and we see that I mean I see across the board looking at federal district court decisions we have some judges who find substantial evidence in upward of 90 percent of the cases others for whom it's reversed 10 percent of the cases and I think there's there has to be a recognition that reasonable decision makers can reach variant conclusions and when it's within the zone of reason the zone of reasonable choice I think the law is clear that the government's decision has to be affirmed well this scenario we're not going to resolve today but I think we've spent time on that aspect or this aspect of it because it seems to be problematical and hard to get a handle on what the definitions are and we can see that the system the system of processing social security cases is far from perfect but let's say we could we all had the power to change things we could make some improvements are there some improvements we could make in the system I'm sure we all have some ideas Nancy do you have any ideas well I think it's without question no one wants to see the volume of cases in federal court that we have now a typical claimant has filed an application for benefits for five years before the case comes into federal court it's brand new in federal court it's getting a brand new docket number but this case which is now you know growing in size has been around for years and this is an individual who's been without benefits that they believe they're entitled to four and five years so I think without question the energy has to be focused on how can cases get resolved fully fairly at an earlier stage and I think the appeals council is a place to start I'm sure Arthur will want to talk about some of the changes in place at the appeals council I think one of the one of the the possibilities that social security is thinking about is the elimination of the claimants request for review at the appeals council I think that particular possibility is quite perilous the experiments have suggested that filing rates in the areas where that's being tried filing rates in federal court triple so that it it yes it moves the case along because you're coming directly from the administrative law judge directly to the doorstep of the federal court but I think the drop off for people who find themselves totally intimidated totally unable to go on into federal court will grow I think the appeals council has very important function and I think with the additional resources and new initiatives that the administration has set out for the appeals council I'm very optimistic claims can be fully developed fairly resolved there and the delightful result would be fewer cases coming into federal court that would be a delightful result well we're all certainly looking at ways to adjudicate cases properly earlier in the process with the resulting that fewer move through the appellate process including into federal court let me start with what we're doing at the very beginning of the process this the point at the disability determination services where the vast majority of the claims actually get resolved with finality either because they're approved or there's no appeal we are focusing more resources on collecting stronger and better medical evidence at that stage we're looking to increase the amount of information that we get on residual functional capacity from the treating sources that's an area currently where we request that information but frequently we don't obtain it and we're looking at ways to do a better job and to encourage the treating physicians to provide us with that information as well as looking at ways to get better consultative examinations and more consultative examinations in those areas where the claimants own resources do not allow for the collection of sufficient medical evidence we're also looking at ways to increase and to enhance the organization of the administrative law judge level of the hearing process in order to speed up the process at that level and hopefully to also strengthen the process part of that is really what Nancy mentioned before there's been a sort of an historical and there have been many complaints about the system that the disability determination services look at cases one way and the administrative law judges look at cases a different way when the rules should apply similarly to everyone and one of the drivers of that I think is that the feedback that the disability determination services get is largely on cases that they allow because Congress requires us to review prior to effectuation at least half of the cases that are allowed and then at the administrative law judge level the opposite essentially is true the only ones that have historically been reviewed and the ALJ level are when they deny cases so they're getting only feedback on erroneous denials the DDS is only getting feedback on erroneous allowances so we're attempting to put some greater balance into that process and part of that is the own motion review that the appeals council is performing and we have quality assurance teams that look at cases made up of administrative law judges and when they believe there is a significant error in a random sample of administrative law judges cases they get referred to the appeals council and the case in the individual the decision that individual case can be reversed I think the more important part of that process is it's a way of looking at the process to come up really with systemic problems in the process and provide for training in both directions better ways to develop the evidence and also to adjudicate the cases so across the board we can build in to the hearing process better quality and that's something that hasn't been done historically and I think both through that process and also other ways that we're evaluating the quality assurance process at the ALJ level we will be able to build a stronger adjudicatory process at the ALJ level comes to this part of that Nancy also mentioned and I haven't seen the data to which he refers the initiative to examine whether there's benefit to eliminating the appeals council level as a required step for the claimant before going to court and historically actually I was one of them when I was an advocate for disability claimants we've gotten a lot of complaints that the appeals council is just a rubber stamp for the ALJs and therefore we ought to eliminate it we don't believe that the appeals council is a rubber stamp but we're looking very closely at whether there's benefit in terms of time and also quality to eliminating the appeals council and freeing the appeals council members up to do other important work such as the quality assurance work which I think ultimately would have a stronger benefit for the agency and the claimants in terms of improving the process as I said I haven't seen the data to which Nancy refers and if it results in an explosion in cases going to federal court obviously that would be very significant and we certainly wouldn't embark on that path without significant discussions with the judiciary and evaluating whether that in fact was an appropriate thing to do we don't want to simply pass cases from administrative level to the court level we'd rather adjudicate them at the court level but if we can utilize the appeals council's resources better in an across-the-board quality assurance mechanism than as an individual case appeal mechanism without impacting the rate at which courts cases go to court and without negatively impacting the rights of claimants to get a fair adjudication of their claim then we would consider moving in that direction. Judge Pratt any suggestions or are we just tilting at windmills? No I don't think we're tilting at windmills at all I think one of the things that both Arthur and Nancy have brought about is an education of advocates that's the we don't want bad cases in federal court and when you don't have skilled advocates developing these cases at the agency levels frankly you're going to get cases that ought not to be in federal court wasting our time and I think education you know we need to one of the difficulties we have and I've said this in opinions we have lawyers and advocates who are non lawyers at the agency level who are playing cat and mouse games and they need to work with the DDSs and the ALJs to make sure that we have an adequate record to make an informed decision on whether it's good or bad for the claimant what we need is all that record evidence to be laid out there and then if the claimant is dissatisfied he or she should seek judicial review but we need to have OGC and claimants lawyers and magistrates and judges educating disability advocates that when they're bad cases they shouldn't file them and when they're good cases they should file them so I think that the continuing role of Nosker and OGC and the USA's and judges and magistrates in the education process with bar associations has to help us all thank you in fact continuing a round table such as this and having the various groups represented and getting together and talking about common concerns would improve the process and we have done that with Nosker and Nancy or with other local groups on various occasions around the country and we'd be happy to continue to do that where folks see the need for it locally it's been very helpful well then let's make a plan to meet again and continue this discussion but for now that's about all the time we have that's it for part two of our program I want to thank the members of our panel again for coming in to discuss and to clarify these issues I hope you've all enjoyed both parts of our program and that you will take the time to fill out and send in the evaluation which is included with the written materials on the JNET for the federal judicial television network I'm magistrate Judge Aaron Goodstein saying thank you for watching