Disability Professionals

Recently, I wrote a brief where a key issue was the claimant’s non-compliance with his medication. Allegations of non-compliance can sink an otherwise good disability claim. The regulations state that Social Security will not find a claimant disabled if they are not following prescribed treatment without a good reason. 20 C.F.R. § 404.1530(b).

Non-compliance, however, may be excused in certain situations. Before an ALJ can rely on non-compliance in the Tenth Circuit, he must consider four elements:

• Whether the treatment at issue would restore the claimant’s ability to work;
• Whether the treatment was prescribed;
• Whether the treatment was refused; and, if so,
• Whether the refusal was without justifiable excuse.

Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987); see also 20 C.F.R. § 404.1530(c) (listing specific exceptions to the compliance requirement).

Additionally, an ALJ must develop the record as to the justification for the claimant’s non-compliance. Social Security Ruling 82-59 requires an ALJ to develop the record to resolve whether the claimant justifiably failed to comply with prescribed medication. 1982 SSR LEXIS 25, *4-5. The ruling instructs an ALJ to allow the claimant an opportunity to “fully express the specific reason(s) for not following the prescribed treatment.” Id. at *5. It also instructs an ALJ to ask whether the claimant understood the nature of his treatment and the consequences of not complying with prescription medication. Id. at *5-6. It then states that “Detailed questioning may be needed to identify and clarify the essential factors of refusal.” Id. at *5.

Thus, an ALJ has two duties when confronting non-compliance. First, he must consider whether the non-compliance is excused or justified. Frey at 517. Second, he must develop the record as to the claimant’s rationale for refusing prescribed treatment.

In a recent case, the District of Colorado reversed and remanded a decision where the ALJ failed to make the necessary inquiry into the claimant’s reasons for failure to follow prescribed treatment. See Grabczyk v. Astrue, 2010 U.S. Dist. LEXIS 109888, *25-26 (D. Colo. Sept. 30, 2010). In the case, the ALJ did not give the claimant an opportunity to discuss whether she followed or attempted to follow her doctors’ recommendations or whether she had any difficulty paying for treatment. Id. at *26. Because of the ALJ’s failure to address these issues at hearing, the court determined that the ALJ did not comply with the mandates of SSR 82-59. Id. (citing Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985)).

In an earlier case, Vaughn v. Shalala, the Tenth Circuit considered a similar issue. 1994 U.S. App. LEXIS 1691, (10th Cir. Feb. 3, 1994) (unpublished). In Vaughn, the claimant stated that Dilantin made her sick. Id. at *12. Yet the ALJ never asked the claimant why she stopped taking the medication. Id. at *13. The Tenth Circuit stated, “Such questions should have been asked.” Id. (citing SSR 82-59). The court then determined that the record was not adequately developed because the ALJ failed to engage in detailed questioning under SSR 82-59. Id. Thus, the Circuit Court found that it could not determine on appeal whether the claimant’s refusal to take Dilantin was unjustified. Id.

Jay O’Keefe at De Novo: A Virginia Appellate Law Blog has posted links to Judge Richard Posner’s recent article on hypertrophy of The Bluebook. Any attorney who has struggled with labyrinthine rules and suggestions of The Bluebook will appreciate Judge Posner’s take on the now 511-page 19th edition.

As a bonus, Judge Posner included his own citation rules as an appendix to the article. You can find his disdain for The Bluebook here: Richard Posner, The Bluebook Blues, 120 Yale L.J. 850 (2011).

3 Tips That Can Make a Difference at Appeals Council

Attorneys representing clients in Social Security disability matters often encounter the most vexing stage of the process—the Appeals Council. For many, the machinations of the Appeals Council remain shrouded in mystery. Generally, an attorney files a request for review, submits new evidence, and then prays that the stars align for a remand.

Every attorney has different advice on how to approach an appeal with the Appeals Council. My advice can be boiled down to three key points:

Be Brief With Your Brief

A typical case at the Appeals Council is likely to receive less than 15 minutes of paper review. Because of this, your primary focus should be writing a compact, concise brief. Generally, two to three pages of argument should be enough to identify the errors in the ALJ’s decision and provide a reason for reversal or remand. Do everything possible to streamline the brief—use bullet points, ordered lists, and bold headings to guide the reader.

Focus on Rules and Regulations...

...not case law when arguing for a remand, rely on Social Security rulings and regulations. The agency appeals judges are likely to be more familiar with agency rules than obscure case law. An ALJ’s failure to follow a Social Security ruling or regulation provides a much clearer reason for remand. Also, avoid policy arguments or grasps at sympathy. These will only serve to distract the appeals judge from the core errors identified in your brief.

Submit New Evidence

While the case is stewing at the Appeals Council, continue to submit new evidence. New and material evidence submitted for the first time to the Appeals Council becomes a part of the administrative record. See O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). As a result, even if the Appeals Council denies a request for review, the new evidence is included in the record if the case is appealed further to federal court. This new evidence may then establish whether the ALJ’s decision is supported by substantial evidence.

Follow these three tips to best serve your client after an unfavorable decision. Likewise, by pursuing the case aggressively at the Appeals Council level, you can establish a good foothold for a federal appeal.

Defining Conflict in a Federal Appeal

I recently read an excellent 2001 law journal article on the use of fiction writing techniques to write persuasive facts sections. In the article, the author recommends defining conflict in classical terms. Thus, a writer should define conflict as one of the following archetypes:

• Man Against Man
• Man Against Self
• Man Against Nature
• Man Against Society
• Man Against Machine
• Man Against God
• God Against Everybody

This recommendation is especially important in the context of federal Social Security appeals. The two most apt definitions of conflict for a disability appeal are “man against machine” and “man against self.”

It is easy to portray the Social Security Administration as the machine in a “man against machine” scenario. Because of the long processing time and seemingly arbitrary application of the regulations, the administration becomes the antagonistic machine. By focusing on this bureaucratic machinery, a writer can generate support for the claimant as a classic underdog. As noted by the authors of the article, many readers instinctively root for the “little guy.” This includes judges and magistrates routinely presented with cases where a claimant has waited for years just to get to a hearing.

The “man against self” conflict is also important in federal appeals. Many claimants have problems such as a history of substance use, criminal backgrounds, or other character flaws. In these situations, it is best to focus on the claimant’s struggle against his own impairment. Often—especially in psychiatric cases—a claimant’s problems link directly to his or her impairments. As a result, emphasize the claimant as a person who is battling impairments to the best of their ability and show how an award of benefits could help them. Thus, the judge or magistrate may root for the claimant’s “better nature to prevail.”

I highly recommend the article. It presents invaluable advice for legal writing in any practice area.

See Brian J. Foley & Ruth Anne Robbins, Fiction 101: A primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 Rutgers L. J. 459 (2001).

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The Chenery Doctrine in Federal Social Security Disability Appeals.