At the trial to determine who stole the tarts in Alice’s Adventures in Wonderland, the following dialogue takes place:
`Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
`No, no!’ said the Queen. `Sentence first–verdict afterwards.’
`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’
A number of years ago, the following canned language started to appear in decisions denying disabled people their benefits: “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”.
Let’s put that into non-canned language. What the Judge who includes that sentence in a decision is really saying: “I’ve decided what I think you can do and anything you say that does not match what I think, is untrue.”
The first time I read that language, I had to read it over several times–I thought someone had just misspoken. Then, after I saw it a few more times, I realized that someone drafted it for the Judges, telling them it was a great idea how to deny someone their benefits.
I am delighted to say that the 7th Circuit is also a fan of Alice’s Adventures in Wonderland, but, as a work of fiction and and not as part of anything that approaches due process standards. In two recent decisions, the Court of Appeals recognized this babble for what it is. The first is Bjornson v. Astrue, No. 11-2422, ___ F.3d ___ (7th Cir. Jan. 31, 2012). The second, decided a few months later, Smith v. Astrue, No. 11-2838 (7th Cir. Mar. 12, 2012). In Smith, the Court said it the canned language “implies that the ability to work is determined first and is then used to determine the claimant’s credibility. That gets things backwards.” Yes, it does. The idea of having the sentence first!
I hope to see other jurisdictions following, so I never have to look at such stuff and nonsense in a decision again.