By Howard Olinsky, Managing Partner, Olinsky Law Group, www.windisability.com
April 28, 2014
Our firm writes between 250 and 300 Appeals Council briefs each month. Over the years we have seen that the Appeals Council review has changed. I did an analysis of the last 50 Appeals Council remands we received. There is a discernible pattern in what the Appeals Council is presently doing.
We are seeing remands when the ALJ fails to do something that he is required to do. As an example, if the ALJ fails to weigh the opinion of a physician in the file, be it a treating physician or a consultant exam physician, the case will be remanded. If the ALJ weighed the opinions of all the physicians, however did it horribly wrong, that case is not going to be reversed.
All doctors opinions of limitations must be analyzed. If the ALJ fails to analyze a doctor’s opinion which contained a finding that he found important, then the Appeals Council will remand. If the ALJ did an analysis however bad, there will be no remand.
If the ALJ at Step Two found a serious impairment such as mental health or a nonexertional physical limitation, the ALJ must include work-related limitations in the RFC pertaining to that serious impairment. If the RFC contains no limitations from a found impairment, the case will be remanded.
If there is no credibility analysis the case will be remanded. If there is a credibility analysis done horribly wrong, the case will not be remanded.
If the vocational expert testifies about jobs which the ALJs hypothetical actually precluded and the ALJ finds those jobs being consistent with the hypothetical, the case will come back. If there is no vocational expert at all and your nonexertional impairments are reaching handling and fingering for a younger individual who is limited to sedentary work, that case will come back.
There are many reasons the Appeals Council is remanding. It’s just not remanding for bad decisions. It is remanding when an ALJ didn’t do something which they were supposed to. Not for doing it badly.
Blind justice, feeling for all the pieces. But if the pieces are there, no remand, no matter how badly the pieces are put on paper.