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Federal judges fired up over social security cases

By: Jane Pribek//March 11, 2013

Federal judges fired up over social security cases

By: Jane Pribek//March 11, 2013

Tensions between the Social Security Administration and the judicial community boiled over recently, as evidenced in a terse decision issued by Eastern District of Wisconsin Judge J.P. Stadtmueller.

In recent months Stadtmueller and Western District of Wisconsin Judge Barbara Crabb issued opinions strongly criticizing the SSA’s handling of disability claims at the administrative law judge hearing level and its failure to follow 7th Circuit precedent.

The most stinging rebuke came from Stadtmueller on Jan. 31 in Freismuth v. Astrue.

In a sternly worded order remanding the case, Stadtmueller cited statistics showing a high remand rate for Social Security cases in the Eastern District in the past four years. He indicated 83 percent of cases were remanded in 2012.

Expressing his frustration in Freismuth, the judge wrote, “Once again, the court is charged with the unenviable task of deciding yet another in an exceptionally long line of Social Security cases run amok. This line of cases — the result of what might be charitably described as a wholly dysfunctional administrative process within the Social Security Administration — has continued to grow, bringing with it a skyrocketing number of remands.”

Stadtmueller noted “a deluge of taxpayer dollars paid out in the form of attorneys’ fees to counsel for prevailing plaintiffs pursuant to the Equal Access to Justice Act.” He went on to state that, in the past four years, taxpayers have footed the bill for $1.3 million in attorneys’ fees in the Eastern District alone.

Stadtmueller additionally chastised the local U.S. Attorney Office’s handling of Freismuth and warned that remedial action needs to be taken.

U.S. Attorney James Santelle, whose colleague, Assistant U.S. Attorney Brian Pawlak, represented the agency in Freismuth, declined to discuss specific aspects of that case because it’s ongoing. He did say an appeal before the 7th Circuit is doubtful, however.

Santelle acknowledged the problems plaguing his agency in handling the growing number of Social Security cases.

“We have identified what I will call serious challenges in administering and handling the caseload,” he said.

Correcting the way cases are handled is a work in progress, he said.

“Some, if not all of the issues that [Stadtmueller] has identified in the first several pages of his opinion have been matters that I have been attentive to, and our office has been focused on and working on for well over two, if not three years,” Santelle said. “We have been very much in conversation and communication – some of it quite productive – with our client agency.”

Judicial critiques

In the Freismuth case, Jennifer Freismuth challenged a Santa Barbara, Calif.-based ALJ’s 2010 finding that Freismuth was not disabled. ALJ Mary Everstine found Freismuth’s testimony was not credible.

Upon review, Stadtmueller reversed Everstine’s decision on three grounds and found error regarding the credibility determination. Everstine had recited “meaningless boilerplate,” he wrote, concluding, “This case is not a close one,” and that her decision was “absolutely riddled with errors.”

He noted “it also appears that the Commissioner’s attorneys elected to spend very little time and effort writing the brief in defense of the ALJ’s decision.” Specifically, Stadtmueller said, the government’s brief contained a factual error and other than a passing reference to the standard of review, it didn’t include a single citation to case law.

Crabb also recently took the agency to task in two separate opinions where she said ALJs cited “meaningless boilerplate” in credibility determinations.

In Crabb’s Feb. 4 remand of ALJ Gail Reich’s denial of benefits in Bunnell v. Astrue, Crabb wrote she did so due to Reich’s “boilerplate” credibility ruling.

“Unfortunately,” Crabb wrote, “as in all too many Social Security cases, the administrative law judge’s decision in this case is deeply flawed.”

Crabb’s and Stadtmueller’s decisions come on the heels of Seventh Circuit Court of Appeals Judge Richard Posner’s decision in Hughes v. Astrue, where he wrote that the government’s brief was sanctionable.

“Really,” Posner wrote, “the Social Security Administration and the Justice Department should have been able to do better than they did in this case.”

Santelle said he has specifically flagged the use of boilerplate language and talked to the SSA about avoiding it. To the best of his knowledge, he said, the ALJs have stopped using it but there are still cases in the system from before anyone brought it to their attention.

Santelle said he frequently met with former Eastern District Court Chief Judge Charles Clevert to share his concerns and to suggest stipulated, voluntary remands of appropriate cases.

Voluntary remands took place in 2012 and are ongoing, he said. Some cases that perhaps should have been remanded were not, Santelle said, but overall they’re making diligent efforts.

Freismuth had already been briefed, so it wasn’t voluntarily remanded.

“I have long been working on this issue,” Santelle said of the SSA concerns. “And I like to think we’re not only moving in the right direction, but we’re going to see some better results down the road.”

Plaintiffs’ attorney Don Chewning of Winter, Chewning & Geary LLP, Two Rivers, said there is “a real disconnect between the decisions issued by the Social Security ALJs and the law as developed by reviewing courts.

“The Social Security Administration does not view itself as bound to follow circuit precedent,” he said.

New Berlin claimants’ attorney Jennifer Allen said that in Freismuth, as in other recent cases, some ALJs have shown an increasing willingness to “cherry-pick” from the facts in their denials. Specifically, they use hypotheticals with vocational experts but don’t consider or mention the entire line of questioning.

“I think there’s a trend toward a little stricter construction, in terms of assessing individuals and their claims,” said Allen of Alan C. Olson & Associates SC. “There seems to be very little assessment of the human nature – a willingness to observe and take people as human beings.”

The denials often contain sparse analysis, she said. But reasoning on the record is what judges of all types, including ALJs, must do to maintain confidence in the system, Allen said.

An escalating rate of denials

Chewning said the increase in Social Security case appeals to the district court that Stadtmueller identified in Freismuth can be explained partially by the fact that there’s been an increase in disability claims due to an aging baby boomer population.

But ALJs are denying more claims now, too, he said.

Eagle attorney David Traver, author of the “Social Security Disability Advocate’s Handbook,” said the increases in denials and the resulting federal court filings are a direct consequence of a conservative turn taken by the agency a few years ago under Commissioner Michael Astrue.

Traver said he has tracked the agency’s own statistics and found the percentage of denials at the ALJ level are up — disproportionately, in his opinion – both in Wisconsin and nationwide.

Likewise, Traver said denials are up at the Disability Determination Bureau in Madison, which makes initial findings. That office disproportionately denies claims on the front end, he said, largely ignoring aspects of claims with conditions that can’t be diagnosed via objective medical evidence alone, such as migraines or fibromyalgia.

The SSA’s Acting Press Officer Mark Hinkle, who declined requests to be interviewed by phone, submitted a statement that noted, “While it is true that the allowance rate for disability claims has declined in the past few years, the decline is not the result of a more conservative approach or one that favors denials.”


Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

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