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Bulletin Board

October 31, 2017

SUPREME COURT DECISIONS


Astrue v. Capato, ex rel. B.N.C., 132 S.Ct. 2021 (2012)

A unanimous Supreme Court upheld SSA’s denial of survivors’ benefits to posthumously conceived twins because their home state of Florida does not allow them to inherit through intestate succession.  The Court relied on Section 416(h) of the Social Security Act, which requires, inter alia, that an applicant must be eligible to inherit the insured’s personal property under state law in order to be eligible for benefits. In rejecting Capato’s argument that the children, conceived by in vitro fertilization after her husband’s death, fit the definition of child in Section 416(e), the Court deferred to SSA’s interpretation of the Act.

Barnhart v. Thomas, 124 S. Ct. 376 (2003)
 
The Supreme Court upheld SSA’s determination that it can find a claimant not disabled at Step Four of the sequential evaluation without investigation whether her past relevant work actually exists in significant numbers in the national economy.  A unanimous Court deferred to the Commissioner’s interpretation that an ability to return to past relevant work can be the basis for a denial, even if the job is now obsolete and the claimant could otherwise prevail at Step Five (the “grids”).  Adopted by SSA as AR 05-1c.
 
Barnhart v. Walton, 122 S. Ct. 1265 (2002)
 
The Supreme Court affirmed SSA’s policy of denying SSD and SSI benefits to claimants who return to work and engage in substantial gainful activity (SGA) prior to adjudication of disability within 12 months of onset of disability.  The unanimous decision held that the 12-month durational requirement applies to the inability to engage in SGA as well as the underlying impairment itself.

Sims v. Apfel, 120 S. Ct. 2080 (2000)
 
The Supreme Court held that a Social Security or SSI claimant need not raise an issue before the Appeals Council in order to assert the issue in District Court.  The Supreme Court explicitly limited its holding to failure to “exhaust” an issue with the Appeals Council and left open the possibility that one might be precluded from raising an issue.
 
Forney v. Apfel, 118 S. Ct. 1984 (1998)

The Supreme Court finally held that individual disability claimants, like the government, can appeal from District Court remand orders.  In Sullivan v. Finkelstein, the Supreme Court held that remand orders under 42 U.S.C. 405(g) can constitute final judgments which are appealable to circuit courts.  In that case the government was appealing the remand order.
 
Shalala v. Schaefer, 113 S. Ct. 2625 (1993)
 
The Court unanimously held that a final judgment for purposes of an EAJA petition in a Social Security case involving a remand is a judgment “entered by a Court of law and does not encompass decisions rendered by an administrative agency.”  The Court, however, further complicated the issue by distinguishing between 42 USC §405(g) sentence four remands and sentence six remands.


SECOND CIRCUIT DECISIONS


Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)

The Court of Appeals remanded for consideration of a  retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.

”Greek v. Colvin,
802 F.3d 370 (2d Cir 2015)

The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. "After all, SSA's regulations provide a very specific process for evaluating a treating physician's opinion and instruct ALJs to give such opinions 'controlling weight' in all but a limited range of circumstances.  See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128." (Emphasis supplied.)

McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)

The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s non-exertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ's hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations.  The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.

Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)

The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand.  In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed  explicitly.

Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)

The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records.

The Court also held the ALJ’s RFC determination was not supported by substantial evidence.  It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.” Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain or depression were significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.

Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)

The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.


Cage v. Commissioner of Social Security, 692 F.3d 118 (2d Cir. 2012)

The Court of Appeals held the burden of proving that drug or alcohol addiction is not material to a disability claim rests with the claimant. It also affirmed the ALJ’s finding that the claimant would not be disabled absent drug addiction or alcoholism (“DAA”) was supported by substantial evidence even though there was no medical opinion specifically addressing materiality. It ruled that a “predictive medical opinion” addressing the issue of materiality was not necessary.


Brault v. Social Sec. Admin. Com’r, 683 F.3d 443 (2d Cir. 2012)

The Court ruled an ALJ is not required to state expressly his reasons for accepting challenged vocational testimony, nor is the ALJ required to grant the claimant an opportunity to inspect and challenge the VE’s evidence.  The claimant had challenged the VE’s method of “extrapolating” from data to arrive at the numbers of available jobs in the economy, relying on a line of cases holding that although the Federal Rules of Evidence do not apply in Social Security claims, the “spirit” of Rule 702 regarding scientific evidence should. See, e.g., Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). The court refused to extend the Daubert type rule to the Second Circuit. It acknowledged an ALJ need never question the reliability of VE testimony, and agreed evidence cannot be “conjured out of whole cloth,” but concluded “the extent to which an ALJ must test a VE's testimony is best left for another day and a closer case.”


 





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