Court Remands Result in ALJ Wins

Empire Justice Center January 31, 2020

A remand from U.S. District Court is usually considered a victory, as only 2% of appeals are reversed by the courts, while 48% are remanded.  See SSA’s 2018 “Waterfall” chart.  But Attorney Mike Telfer of the Albany office of the Legal Aid Society of Northeastern New York can attest to the ultimate value of those court remands.  Mike reports a trifecta of ALJ wins following court remands.


Mike’s first case involved a conundrum advocates occasionally encounter.  His client was an SSI recipient who applied for Social Security Disability Insurance benefits (SSDI/Title II) benefits based on her own record.  Her application was denied, despite a favorable SSI CDR a few months earlier.  Mike appealed to the U.S. District Court.  The government offered a voluntary remand based on collateral estoppel.  See 20 C.F.R. § 404.950, instructing ALJs to accept the factual finding made in the previous determination or decision unless there are reasons to believe that it was wrong.


On remand, Mike argued the first ALJ failed to determine whether the previous determinations were incorrect, whether the prior determinations were binding on the ALJ’s decision, whether the prior determinations should be reopened, or whether the doctrine of collateral estoppel applied to the current decision.


Mike’s client had first become insured in July 2012. She had continued working subsequent to the first hearing and was actually working at the time of the remand hearing.  Mike convinced OHO (Office of Hearing Operations) to update the claimant’s DLI (Date Last Insured) for Title II purposes.  Her new DLI was 2022.  Mike also demonstrated through earlier testimony that her jobs were performed with assistance from others, and thus was performed with special conditions.  He also argued she had unsuccessful work attempts following the remand.


The ALJ granted a favorable decision on the record (OTR) without another hearing.  The ALJ found the claimant met Listing 12.06 based on evidence from the old files and new evidence Mike had submitted.  Mike’s client will get SSD benefits retroactive to September 2013, minus any SSI benefits she received.  See SSA’s “windfall” provisions at 20 C.F.R. §§ 404.408b; 416.1123(d).


Mike’s second victory involved another voluntary remand.  Mike had argued the ALJ failed to properly develop the record by obtaining the notes from the client’s therapists.  Since the records arguably supported the therapists’ opinions in his case, the ALJ erred in weighing the evidence.  Mike pointed out to the court that the ALJ failed to use his subpoena power to obtain the records.  He also argued new and material evidence supported remand.  The claimant’s prior lay advocates had obtained a statement from his former employer, which supported an argument that the client’s past work was not past relevant work (PRW), as it was performed with special conditions.  Additionally, new and material evidence had been submitted to the Appeals Council from the client’s advocate.


The Office of General Counsel (OGC) entered into a very specific stipulation, requiring the ALJ on remand to, among other things, evaluate treating source opinions, reassess the claimant’s residual functional capacity (RFC), and obtain medical expert testimony, if deemed necessary.  While the federal court appeal was pending, Mike worked with the client and his lay advocates to file a new application.  When that application was denied, Mike helped him request reconsideration.  Shortly thereafter, Mike received the remand offer from OGC.  The two files were consolidated at OHO.  Mike obtained the treatment records the first ALJ had failed to request.  He also secured an opinion from the claimant’s current therapist.  The ALJ sent interrogatories to a medical expert (ME). The ALJ issued a fully favorable decision based on the ME’s opinion that the claimant met Listing 12.08, Personality and impulse control disorders.


In Mike’s third remanded case, the claimant had obtained a remand from the Appeals Council pro se. Mike represented her at the first remand hearing in 2017, followed by another appeal to the Appeals Council and then to the U.S. District Court.  Mike argued the ALJ had erred in his listing analysis, weighing of opinion evidence, and credibility and Step 5 determinations.  OGC once again offered a voluntary remand. On remand, the Appeals Council agreed the ALJ had erroneously assigned no weight to a LMSW because she was not an acceptable medical source.  The Appeals Council also noted a psychiatrist had rendered an opinion on physical restrictions outside the field of his expertise.  The Appeals Council ordered the ALJ to obtain the opinion of an ME if necessary.


In the meantime, Mike had helped his client file a new application, in the course of which he updated her records and obtained a current medical source statement (MSS).  The two claims were consolidated.


The ALJ ordered a new consultative examination (CE), the results of which Mike attacked as inconsistent with the evidence.  The ALJ also sent interrogatories to an ME.  Mike challenged the ME’s unhelpful opinion on the grounds that the ME had only reviewed evidence associated with the new application.  When the files were consolidated, the ME offered a new opinion finding the claimant’s conditions equaled Listings 12.04 and 12.15.  The ALJ issued a favorable decision on the record based on Listing 12.15 (Trauma and stressor related disorders) without the need for yet another hearing.


Mike has a great run of both offers for voluntary remands and success on remand. His hard work obviously pays off for his clients.