Bulletin Board - January 2010

January 21, 2010

Author: Catherine M. Callery (Kate) | Louise M. Tarantino

SUPREME COURT DECISIONS

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 possiblity 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.

Lawrence v. Chater, 116 S. Ct. 604 (1996)

The Court remanded a case after SSA changed its litigation position on appeal. SSA had actually prevailed in the Fourth Circuit having persuaded that court that the constitutionality of state intestacy law need not be determined before SSA applies such law to decide “paternity” and survivor's benefits claims.  Based on SSA’s new interpretation of the Social Security Act with respect to the establishment of paternity under state law, the Supreme Court granted certiorari, vacatur and remand.

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

Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009)

Finding that the ALJ had inadequately developed claimant’s record by means of a brief and limited hearing where the ALJ had neither thoroughly examined claimant’s work history nor properly qualified reports against claimant’s testimony, the Second Circuit remanded for further proceedings. The Court lamented remanding a case that was already thirty years old, but held that the remand was based on the ALJ’s failure to develop the record, rather than because the ALJ’s decision was not supported by substantial evidence. The claimant had been awarded benefits retroactive to 1991, but had appealed denials of his 1980 and 1987 applications under the provisions of two different class actions: Dixon v. Shalala, 54 F.3d 1019, 1021 (2d Cir. 1995), which challenged the Commissioner’s application of the “severity” step of the Sequential Evaluation; and Stieberger v. Sullivan, 792 F.Supp. 1376, modified, 801 F.Supp 1079 (S.D.N.Y. 1992), challenging the Commissioner’s policy of non-acquiescence in Circuit case law.

Encarnacion ex rel. George v. Astrue, 568 F.3d 72 (2d Cir. 2009) (“Encarnacion II”)

The Court rejected plaintiffs’ challenge to SSA’s policy preventing adjudicators from adding together less than marked limitations from separate domains and prohibiting SSA from adjusting the level of limitation in one domain to reflect the impact of limitations in other domains.  The Court deferred to the Commissioner’s interpretation of focusing on combined impairments within each domain rather than across domains.  It held that the Commissioner's interpretation satisfies the test that each of a claimant's impairments be given at least some effect during each step of the disability determination process because SSA considers all impairments within each domain.

Poupore v. Astrue, 566 F.3d 303 (2d Cir. 2009)

The Court agreed the opinion of the treating orthopedist that the claimant could perform “sedentary, light-duty” supported the ALJ’s finding that the claimant had the residual functional capacity (RFC) for light work. It found that the need to get up and move around from time to time does not preclude an ability to perform sedentary work.  It also upheld the ALJ’s credibility finding, observing that the ALJ correctly noted the claimant’s level of daily activities, including caring for his one year child.  Finally, the Second Circuit adopted the Commissioner’s argument that 20 C.F.R. §404.1560(c)(2)(2003) abrogated Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), clarifying that the Commissioner need not provide additional evidence of RFC at Step five of the sequential evaluation.

Lamay o/b/o KPD v. Astrue, 562 F.3d 503 (2d Cir. 2009)

In a case involving an unrepresented parent in a child’s SSI claim, the Court found that that the plaintiff had made a knowing and intelligent waiver of her right to counsel.  In holding that additional disclosures advising the plaintiff of the availability and benefits of representation required by prior case law are not mandatory under the Social Security Act, the Court acknowledged a split in the circuits on this issue.

Kohler v. Astrue, 546 F.3d 260 (2d Cir. 2008)

In a mental impairment case, the Second Circuit held that the ALJ’s failure to adhere to the regulations requiring the application of a “special technique” at Steps two and five of the sequential evaluation constituted grounds for remand.  The court agreed with several other circuits in finding remand appropriate where the ALJ’s noncompliance with 20 C.F.R. §404.1520a(e)(2) resulted in an inadequately developed record in terms of the four functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of compensation. The court also criticized the ALJ for focusing in isolation on the treating source’s use of the word “stable,” and for failing to consider the opinion of the nurse practitioner, where she was the only medical professional available in the very rural “North Country” of New York State.

Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008)

The ALJ’s finding that there was no objective evidence to support opinion of the treating physician that claimant’s back impairment was disabling was unsupported, where both the ALJ and the medical expert on whom he relied erroneously assumed that MRI referred to in other reports was not actually in the file.  The court noted that even if the MRI report was not in the exhibit file, the ALJ – once made aware of its existence – would have been obligated to request it. The court also rejected the Commissioner’s attempt to argue that the MRI did not support the treating physician’s opinion, since the court could not affirm on grounds different that those considered by the agency.  Nor were the Commissioner or the District Court permitted to substitute their views for that of competent medical opinion.  In remanding for further consideration of the treating physician opinion, the court summarized many of its leading treating physician cases.