El Departamento del Exilio Repu blicano Valenciano de la Biblioteca Va-

The roles that ALJs and federal judges play contrast in another important respect. This difference also produces some portion of remands without either institution malfunctioning. The SSA has to administer a national program, one for which consistency is an obviously desirable

408 _{ALJ 1 at 5; see also ALJ 18 at 4 (district judges are “in a different world”); ALJ 20 at 3 (suggesting that ALJs are}

“a little bitter” about the difference in time between district courts and hearing offices); ALJ 3 at 4 (commenting that district judges have good knowledge of applicable law but no understanding of the “problems” ALJs face when handling a case).

409 _{Staff-to-ALJ ratios bear importantly on ALJ productivity. OIG, ADMINISTRATIVE LAW JUDGE AND HEARING}

OFFICE PERFORMANCE, supra note 96 at 5.

410 _{ALJ 4 at 2.}

411 _{Henry J. Friendly, Indiscretion About Discretion, 31 EMORY L.J. 747, 757 (1982).}

goal.412 _{To say nothing of legitimacy concerns, the agency would weather well-deserved}

political blowback if it treated claimants in Arizona more favorably than claimants in New Mexico because of differences between the Ninth and Tenth Circuits. Moreover, careful attention to the nuances of circuit or district court case law within the agency might create significant administrative headaches. National case assistance centers, National Hearing Centers, and remote adjudication by video are possible in part because the SSA counsels ALJs and decision writers against citing case law in decisions.

District and magistrate judges, in contrast, must follow their circuit’s precedent. The task of harmonization belongs to the circuits and the Supreme Court. Inconsistency in the application of federal law is routine in the ninety-four federal districts. Courts of appeals have more of an obligation to inter-circuit harmony when they develop a federal legal regime in their decisions.413

But the degree to which this obligation trumps others is a contested jurisprudential question with no clear answer.414 _{Even if no applicable precedent exists, a district court is unlikely to treat}

case law from within the same district cavalierly and rather will accord it persuasive force.415

These different legal commitments manifest themselves in a number of ways that necessarily generate remands. For instance, when OGC lawyers ask the Appeals Council to agree to a voluntary remand, they must explain their reasons in terms of the statute, regulations, and Social Security rulings, not case law.416 _{For the most part, neither OGC lawyers nor}

Appeals Council personnel we interviewed told us that they consider either the district where the

412 _{E.g., HUME, supra note 273 at 99.}

413 _{E.g., Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002).}

414 _{See generally Martha Dragich, Uniformity, Inferiority, and the Law of the Circuit Doctrine, 56 LOY.L.REV.535}

(2010).

415 _{E.g., Warneka v. Colvin, Civ. No. 14-22, 2015 WL 1470955, at *2 n.4 (D.N.H. Mar. 31, 2015) (rejecting SSA’s}

invitation to disregard a district court opinion as inconsistent with the agency’s interpretation of an SSR); Rossiter v. Astrue, Civ. No. 10-349, 2011 WL 2783997, at *2 (D.N.H. July 15, 2011).

416 _{Agency Official 6, First Interview at 2.}

case proceeds or the judge to whom it is assigned when they make RVR determinations.417 _An

approach to RVRs more finely tailored to the idiosyncrasies of a particular court may reduce remands. Some circuits hammered the agency over boilerplate that ALJs routinely included when evaluating the credibility of a claimant’s alleged symptoms.418 _{The Eighth Circuit was}

more forgiving.419 _{Were case law the proper determinant, an OGC lawyer in the Northern}

District of Illinois could have had a different RVR threshold than an OGC lawyer in the Eastern District of Arkansas. But these different thresholds would have undermined the agency’s commitment to national uniformity.

The agency has instructed ALJs and decision writers “not to consider any district court decisions” as sources of legal guidance when making their decisions.420 _{This admonition is}

consistent with the agency’s longstanding policy not to treat appellate decisions as binding unless the SSA issues an acquiescence ruling.421 _{The reasons for this policy are several and}

include both the agency’s commitment to a national program and the administrative complexity of accounting for district court nuances when drafting and revising decisions.422 _However

justified, the policy surely generates remands. A district or magistrate judge will likely afford

417 _{Agency Official 6, First Interview at 2; OGC Lawyer 12 at 2; OGC Lawyer 8 at 4; OGC Lawyer 24 at 3. One}

agency official explained that, in order to grant an RVR request, the agency needs to be able to translate critiques expressed in terms of case law into deficiencies rooted in the statute and regulations. Agency Official 6, Second Interview at 4.

418 _{The boilerplate was the following:}

After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.

For this language, and for an example of an opinion criticizing it, see, e.g., Bjornson v. Astrue, 671 F.3d 640, 644-646 (7th Cir. 2012). The agency changed this text in 2012 due to this sort of criticism.

419 _{Kamann v. Colvin, 721 F.3d 945, 951-52 (8th Cir. 2013).}

420 _{Memorandum to All Administrative Law Judges and All Senior Attorneys from Debra Bice, Chief}

Administrative Law Judge, Jan. 11, 2013, at 2 (on file with authors).

421 _{Soc. Sec. Ruling 96-1p.}

422 _{Bice Memorandum, supra note 420 at 2; Decision Writer 3 at 4; ALJ 17 at 3.}

decisions rendered by colleagues persuasive force.423 _{Just by mentioning certain well-known}

cases, some ALJs believe, they could insulate their decisions from a court-initiated remand.424