1. Intermixing italics and underlining as if both did not mean exactly the same thing. Such intermixing is like wearing socks with different colors to oral argument.
2. Not turning off automatic superscripting of ordinals. Just because a word-processing program has default settings does not mean that those default settings should be kept. Superscripting the Circuit in a legal citation is like wearing a baseball cap to oral argument.
3. Citing outdated reference books.
4. In plaintiff's reply brief, arguing that the Commissioner's statement of the facts is incomplete when such a critique has no point and when plaintiff's statement of the facts is no less incomplete. A plaintiff does not win his or her case when the Commissioner's statement of the facts does not mention a certain fact.
5. Obsequiousness before ALJs and the Appeals Council. "As your humble servant, Your Majesty, I would ask you to entertain consideration of this evidence."
6. Boldface, capitalization, and/or exclamation marks for emphasis. Unless a writer wants to raise the issue of whether he or she is either a teenager or bipolar, the writer should not use boldface, capitalization, or exclamation marks for emphasis.
7. Idiosyncratic legal citations. Legal writing isn't a first-grade art class. In legal citation, creativity is a vice, not a virtue. If you are not a hillbilly, don't write like one. If you are a hillbilly, try to conceal that fact from the tribunal.
8. Misquotation. The words between quotation marks must actually appear in the quoted text as they appear in that text. SSA OGC knows what quotation marks designate. Why don't plaintiffs' attorneys?
9. When replying to an e-mail message on this list, failing to delete the prior message except for those words essential for the reply.
10. Flaming ALJs or the Appeals Council. A plaintiff's arguments are not made persuasive by exaggeration, sarcasm, and inflammatory language.
Tuesday, September 2, 2008
Friday, August 29, 2008
Tuesday, August 26, 2008
Top 10 Things Not to Say to Newly Minted ALJ
1. You'd look better without the robe.
2. Can I buy you lunch? I'd like to give you the 411 on your Hearing Office.
3. You don't know anything about disability, do you? I know a lot. Pay attention.
4. This is one job you can't get by sleeping around. Or can you?
5. Here's a box of my business cards. Give a card to any unrepresented claimant who appears before you.
6. Did you learn anything at "ALJ school" other than the per diem amount? [snicker] "ALJ school" [snort], what a joke.
7. Can I copy your "ALJ school" materials?
8. Just a minute. Just wait. This is how I like to conduct cross-examination.
9. The Appeals Council does not allow that. You can't do that.
10. I thought that affirmative action was illegal.
2. Can I buy you lunch? I'd like to give you the 411 on your Hearing Office.
3. You don't know anything about disability, do you? I know a lot. Pay attention.
4. This is one job you can't get by sleeping around. Or can you?
5. Here's a box of my business cards. Give a card to any unrepresented claimant who appears before you.
6. Did you learn anything at "ALJ school" other than the per diem amount? [snicker] "ALJ school" [snort], what a joke.
7. Can I copy your "ALJ school" materials?
8. Just a minute. Just wait. This is how I like to conduct cross-examination.
9. The Appeals Council does not allow that. You can't do that.
10. I thought that affirmative action was illegal.
Friday, August 22, 2008
Sixth Circuit Aug. 22, 2008: Can't Make This Up
Today, the Sixth Circuit decided Bowie v. Commissioner of Soc. Sec., -- F.3d --, No. 07-2125 (6th Cir. Aug. 22, 2008) (uscourts.gov), now a leading mechanical application of age categories in a borderline situation case. See 20 C.F.R. 404.1563 (2008)
Notes
1. The Sixth Circuit made a huge mistake. It talked about the claimant's age "[a]t the time of her administrative hearing." A claimant's age on the date of an oral hearing is legally irrelevant. The claimant's age on the date of his or her oral hearing has absolutely positively no legal significance. None. Nada. Null. Zip. Zilch. Zero. It has as much legal significance as the day on which the claimant ate three Quarter Pounders With Cheese in ten minutes.
2. This is the most important borderline situation mechanical application case since Daniels v. Apfel, 154 F.3d 1129, 1133 (10th Cir. 1998). In Bowie, the Sixth Circuit applied two of its well-known rules: (1) ALJs don't have to say anything about anything, and (2) claimants are not disabled. Imagine at oral argument: "Counsel, why shouldn't we affirm the District Court's judgment under our longstanding, well-known rule that claimants are not disabled? Is Ms. Bowie a claimant? If she is, then she is not disabled. Period. End of story."
3. Practitioners in all Circuits including the Tenth need to know about Bowie. The Agency will attack Daniels in the Tenth Circuit with Bowie. Bowie also arguably requires the claimant to jump up and down about the mechanical application of age categories in a borderline situation. Start jumping up and down.
4.HALLEX, § II-5-3-2. This is the most important HALLEX case since Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000). Practitioners in all Circuits need to read Bowie for its discussion of the HALLEX. By saying this I am not saying that Bowie is correct. I am saying that practitioners need to read Bowie. Practitioners should be relying on the HALLEX in litigation even in the Ninth Circuit. See Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), cert. denied 128 S. Ct. 1068 (2008).
5. And the claimant did not even have a representative!
Notes
1. The Sixth Circuit made a huge mistake. It talked about the claimant's age "[a]t the time of her administrative hearing." A claimant's age on the date of an oral hearing is legally irrelevant. The claimant's age on the date of his or her oral hearing has absolutely positively no legal significance. None. Nada. Null. Zip. Zilch. Zero. It has as much legal significance as the day on which the claimant ate three Quarter Pounders With Cheese in ten minutes.
2. This is the most important borderline situation mechanical application case since Daniels v. Apfel, 154 F.3d 1129, 1133 (10th Cir. 1998). In Bowie, the Sixth Circuit applied two of its well-known rules: (1) ALJs don't have to say anything about anything, and (2) claimants are not disabled. Imagine at oral argument: "Counsel, why shouldn't we affirm the District Court's judgment under our longstanding, well-known rule that claimants are not disabled? Is Ms. Bowie a claimant? If she is, then she is not disabled. Period. End of story."
3. Practitioners in all Circuits including the Tenth need to know about Bowie. The Agency will attack Daniels in the Tenth Circuit with Bowie. Bowie also arguably requires the claimant to jump up and down about the mechanical application of age categories in a borderline situation. Start jumping up and down.
4.HALLEX, § II-5-3-2. This is the most important HALLEX case since Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000). Practitioners in all Circuits need to read Bowie for its discussion of the HALLEX. By saying this I am not saying that Bowie is correct. I am saying that practitioners need to read Bowie. Practitioners should be relying on the HALLEX in litigation even in the Ninth Circuit. See Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), cert. denied 128 S. Ct. 1068 (2008).
5. And the claimant did not even have a representative!
Wednesday, August 20, 2008
Top 10 Reasons to Attend NOSSCR LA Conference
10. Make sure associate actually attends workshops.
9. Pre-nuptial agreement with spouse to provide two out-of-town shopping
sprees per year.
8. Burning desire to complain in person about cost of conference hotel.
7. Cat's away, mice will play.
6. Prove ability to micromanage office via Blackberry / cell phone.
5. Use-or-lose travel budget.
4. Must tell high Agency officials that a particular ALJ denies too many
claims.
3. Live in Sandusky.
2. Use frequent flyer miles before worthless.
1. Apply for asylum in Blue State.
9. Pre-nuptial agreement with spouse to provide two out-of-town shopping
sprees per year.
8. Burning desire to complain in person about cost of conference hotel.
7. Cat's away, mice will play.
6. Prove ability to micromanage office via Blackberry / cell phone.
5. Use-or-lose travel budget.
4. Must tell high Agency officials that a particular ALJ denies too many
claims.
3. Live in Sandusky.
2. Use frequent flyer miles before worthless.
1. Apply for asylum in Blue State.
Tuesday, August 19, 2008
Typology of Conference Attendees Who Ask Questions
This is a typology of NOSSCR conference attendees who ask questions.
Me Too!: At a workshop about a specific kind of medical impairment, e.g., a mental impairment, this attendee tells the workshop that he or she has the impairment and gives details about his or her experience with and recovery from the impairment. (The attendee proves by his or her question that he or she has actually not recovered.)
Aware of Obvious: At the plenary session, this attendee asks a high Agency official if the Agency has considered the utterly obvious, e.g., that raising taxes could generate more revenue. (Imagine that attendee back at home telling his or her spouse that the Bush administration is now on the right track given the attendee's guidance.)
Wasn't Listening: At a workshop, this attendee asks the very question a workshop presenter already addressed directly. For example, if a speaker said that the Agency would "request but not require" a certain procedure, the attendee asks the presenter if the Agency would "require" that procedure. (Imagine this attendee an ALJ hearing cross-examining an Agency expert asking exactly the same questions the ALJ already asked.)
Oooh, Oooh Can't Wait: At a workshop, this attendee can't wait to ask his or her question at the designated time at the end of the session. Five minutes into the workshop, the attendee blurts out his or her question that was supposed to be reserved for the question-and-answer session at the end of the workshop.
Can Hear Him- or Herself Quite Well: This attendee does not use the microphone despite repeated instructions to use the microphone. This attendee can hear him- or herself quite well, thank you.
Seen on TV: This attendee does not pose a question, but states that the workshop topic was addressed in popular culture, e.g., in a 60 Minutes story.
War Story With No Point: This attendee instead of asking a question provides a rambling summary of a case he or she handled with no relevance to the workshop except insofar as it pertains to disability.
Me Too!: At a workshop about a specific kind of medical impairment, e.g., a mental impairment, this attendee tells the workshop that he or she has the impairment and gives details about his or her experience with and recovery from the impairment. (The attendee proves by his or her question that he or she has actually not recovered.)
Aware of Obvious: At the plenary session, this attendee asks a high Agency official if the Agency has considered the utterly obvious, e.g., that raising taxes could generate more revenue. (Imagine that attendee back at home telling his or her spouse that the Bush administration is now on the right track given the attendee's guidance.)
Wasn't Listening: At a workshop, this attendee asks the very question a workshop presenter already addressed directly. For example, if a speaker said that the Agency would "request but not require" a certain procedure, the attendee asks the presenter if the Agency would "require" that procedure. (Imagine this attendee an ALJ hearing cross-examining an Agency expert asking exactly the same questions the ALJ already asked.)
Oooh, Oooh Can't Wait: At a workshop, this attendee can't wait to ask his or her question at the designated time at the end of the session. Five minutes into the workshop, the attendee blurts out his or her question that was supposed to be reserved for the question-and-answer session at the end of the workshop.
Can Hear Him- or Herself Quite Well: This attendee does not use the microphone despite repeated instructions to use the microphone. This attendee can hear him- or herself quite well, thank you.
Seen on TV: This attendee does not pose a question, but states that the workshop topic was addressed in popular culture, e.g., in a 60 Minutes story.
War Story With No Point: This attendee instead of asking a question provides a rambling summary of a case he or she handled with no relevance to the workshop except insofar as it pertains to disability.
Monday, August 18, 2008
Worst Appeals Council Letter (Real & Imagined)
The absolute worst letter to the Appeals Council (arguing that it should grant a claimant's request for review) I have ever read alleged that the ALJ "sexually intercoursed" the claimant. Really.
Click here for an imagined worst letter to the Appeals Council.
Click here for an imagined worst letter to the Appeals Council.
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