Recommendation 4. The Administrative Office of the United States Courts, the Federal Judicial Center, the Administrative Conference of the United States, and the Social Security Administration should cooperate on several initiatives to improve
717 E.g., OGC Lawyer 2 at 2 (reporting that he does a defensibility analysis “usually a few days ahead” of a brief’s
due date); OGC Lawyer 26 at 1-2 (reporting that, because of her workload, she has been “a week ahead” in her work only once during her multiple years working for OGC); OGC Lawyer 10 at 1 (observing that she begins her work on cases “just a few days out” and suggests her colleagues do as well).
718 Cf. Claimant Representative 12 at 6 (suggesting an early settlement conference idea for these reasons). 719 OGC Lawyer 15 & OGC Lawyer 25 at 5; see also OGC Lawyer 28 at 6.
communication among the agency, claimant representatives, and the judiciary, and to educate the judiciary in important aspects of the claims adjudication process. These initiatives should include the creation of social security standing committees for each district and the drafting of an introductory manual on social security law and processes.
Judicial ignorance of agency policymaking and adjudicative processes within the agency might contribute to cultures of distrust that exaggerate the remand rate. Not long ago, a judge in the Eastern District of Wisconsin complained of “far too many administrative law judges who are not conversant in Seventh Circuit law” when he chided the U.S. Attorney for attempting to defend certain ALJ decisions. This judge indicated little understanding of the agency’s policy toward circuit decisions that it believes to conflict with the Act and regulations.720 ALJs get
reversed all the time but ignore us, another federal judge bemoaned to us, suggesting a similar lack of understanding.721 A number of judges deprecated boilerplate in ALJ decisions,722
without an apparent acknowledgement of the agency’s attempt to use the FIT template to improve decision-making and make it more consistent nationally.723
Better communication could have several helpful effects. First, the agency might respond more favorably to an adverse court decision if agency officials and lawyers believed that the courts are knowledgeable and respectful of their processes and the demands they shoulder.724
Federal courts sometimes temper their application of trans-substantive administrative law doctrines, such as Chevron or the substantial evidence standard of review, based on detailed knowledge of how a particular agency’s processes work.725 The same might be so here. In some
instances, more knowledge might improve the agency’s standing in one judge’s eyes; in
720 Transcript, Mar. 13, 2013, at 14, at www.ssaconnect.com/260-sanctions. 721 Federal Judge 20 at 6.
722 E.g., Federal Judge 10 at 1; Federal Judge 24 at 3; Federal Judge 8 at 2; Federal Judge 12 at 1.
723 OGC Lawyer 30 at 8 (complaining about judicial complaints that lack appreciation for what the FIT template is). 724 HUME, supra note 273 at 46 (reporting results of interviews with agency officials and observing “that when
judges appear interested in their work and are knowledgeable about their procedures, administrators are more likely to accept decisions”).
725 See Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 SUP.CT.
REV. 1, 21-29.
another’s, it might diminish.726 Either way, to the extent that judges calibrate their review based
on knowledge of agency processes or a lack thereof, more education and communication can only help.
Each district should create a standing committee, whose membership could include at least one district or magistrate judge, an OGC lawyer who litigates regularly in the district, a respected claimant representative, and personnel from each hearing office within the district. This committee would ensure a regular and useful flow of information. Federal judges could explain their concerns about recurring issues, such as the use of problematic boilerplate.727
Agency lawyers could explain why the boilerplate remains or what steps have been taken to improve it.728 If a federal judge has questions about record development, she could ask them of
the agency personnel and the claimant representatives. Claimant representatives and OGC lawyers could get feedback on briefing and procedural concerns. OGC lawyers could explain the RVR process to judges and thereby make sense of last minute extension requests that may
otherwise prove confounding to judges.729 All could discuss what local rules and standing orders
work and which ones cause problems.
726 Federal Judge 8 at 3 (expressing disappointed surprise when we described how decision writing works in hearing
offices).
727 For decisions issued over five years criticizing the same boilerplate that apparently hinges a plaintiff’s symptom
evaluation in part on the ALJ’s RFC finding, see, e.g., Treichler v. Comm’r of Social Security, 775 F.3d 1090, 1102- 03 (9th Cir. 2014); Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010); Hertz v. Colvin, Civ. No. 13-6449, 2015 WL 5773722, at *3-4 (W.D.N.Y. Sept. 30, 2015); Bales v. Colvin, Civ. No. 14-297, 2015 WL 5690763, at *6 (E.D. Okla. Sept. 28, 2015); Kaighn v. Colvin, 13 F. Supp. 3d 1161, 1173-74 (D. Colo. 2014); Suess v. Colvin, 945 F. Supp. 2d 920, 928 (N.D. Ill. 2013); Little v. Colvin, Civ. No. 12-300, 2013 WL 2489173, at *5-6 (E.D. Va. June 7, 2013).
728 An OGC lawyer told us that the circular credibility analysis that so many courts have criticized has been
addressed, and that decisions are now “not supposed to be written that way.” OGC Lawyer 18 at 9. The committee would be a good place for OGC to communicate this and explain when judges could expect to see this language disappear in the decisions they review.
729 An OGC lawyer told us of an episode involving a magistrate judge who tired of last minute extension requests.
The judge adopted a rule that required extension requests to be filed five days in advance of a briefing deadline. A “management team” had to meet with the magistrate judge, to explain the realities of agency processes. OGC Lawyer 2 at 2.
The only existing channels for communication among various players in the disability appeals process are either opinions or informal episodes, such as conversations at conferences or bench-bar meetings. Neither is effective. The latter are too irregular, and they do not necessarily include all relevant stakeholders. The former are problematic too. ALJs who dismiss the value of judicial feedback might be particularly inclined to ignore opinions they find harsh,
disrespectful, or otherwise unduly critical. An opinion is also a one-way street and affords ALJs no opportunity to respond. Nor does it allow claimant representatives to voice concerns about problems in hearing offices for which district court remands are weak medicine. Also, the federal courts generate thousands of decisions each year, and the agency may have difficulty identifying from all of these the more urgent problems judges have identified. Rather than wait until the decisions accumulate – a period of years, perhaps, during which judicial frustration may deepen and harden – judges can urge reforms sooner. Lastly, without a different channel for information flow, efforts in the agency to improve in response to judicial criticism will remain opaque to judges for a couple of years, due to the lag time between an ALJ’s decision and federal court review. Without a realistic sense of how long changes take to get reflected in agency output, a federal judge might become further frustrated.
Finally, the Federal Judicial Center and ACUS should jointly supervise the publication of a manual describing the disability claims adjudication process in some detail and summarizing important but basic legal doctrine.730 This manual could orient new law clerks to issues that
might otherwise prove initially confusing, such as the use of boilerplate in ALJ decisions and the applicable standard of review. If widely read, this manual would allow attorneys to file
streamlined briefs that omitted repetitive background that only an inexperienced clerk might
730 A model from a very different context is the Manual for Complex Litigation, an immensely helpful text that the
Federal Judicial Center supervises.
need. Although this manual would need some updating, its focus should remain on how the disability claims adjudication process works and on fundamentals of social security law. As such, it should not need constant revision or fine-tuning for particular circuits.