We hope you find this Social Security Disability Spring 2016 Newsletter informative. It was prepared by Seward, Tally and Piggott's attorney, Lewis Seward.
2016 SOCIAL SECURITY CHANGES
The following are the 2016 SSA cost-of-living adjustments:
For the year 2016, the SSI rate stayed the same at $733.00 a month and the tax rate stayed the same. Quarters of work credit increased to $1,260.00. The SGA level increased from $1,090.00 in 2015 to $1,130.00 in 2016.
The average Title II disabled worker for 2016 receives $1,166.00 per month. The average disabled worker with a spouse or auxiliary benefits for 2016 will average $1,983.00. The average Social Security retiree rate per month for 2016 is $1,341.00.
CLIFFORD FARRELL DISCUSSES
SIXTH CIRCUIT CASE LAW
We were fortunate to have Clifford M. Farrell, Attorney from Columbus, Ohio, speak about the Sixth Circuit and how it affects your administrative practice. Cliff is one of our Sixth Circuit representatives from NOSSCR. He indicated that the single decision maker (SDM Pilot Program) will expire this year, so we are not sure whether this program will be continued or not.
Regarding the Sixth Circuit, he advised that if you have a claimant with an unusual medical condition, it is better to submit evidence of this condition from a reputable medical source at the administrative level. If you have to represent that claimant in District or Circuit Court, you cannot cite evidence outside of the record, no matter how clarifying it is. The only exception would be if you are filing a Motion for Sentence Six Remand due to new and material evidence and then need to explain the medical condition.
Cliff went over a number of recent Sixth Circuit cases and supplied a lengthy list of published and unpublished Sixth Circuit cases going back to 1978. There is always something you can learn from these cases, especially the Sixth Circuit’s point of view. A retrospective look at Sixth Circuit case law can certainly help you decide whether you wish to take a case further beyond the Appeals Council. In case you haven’t noticed, thanks to the Appeals Council’s spotty review, Federal Court Appeals are definitely a growth area in representing disability claimants. The following are a handful of those cases.
Cox v. Comm’r of Soc. Sec., No. 14-6243; 615 Fed. Appx. 254 (6th Cir. June 11, 2015) (unpubl.)
The ALJ’s only explicit reference to credibility consisted of a single-sentence paragraph. After referencing Ninth Circuit and Seventh Circuit decisions criticizing the boilerplate language, the Sixth Circuit agreed:
“We likewise consider the boilerplate unhelpful and poorly worded. Our chief concern with the popularity of this template, however, is the risk that an ALJ will mistakenly believe it sufficient to explain a credibility finding, as opposed to merely introducing or summarizing one.”
The ALJ’s discussion of the evidence does not permit us to reasonably infer a sufficient explanation for her credibility finding. The decision is reversed.
Winn v. Comm’r of Soc. Sec., No. 14-3499; 615 Fed. Appx. 315 (6th Cir. June 15, 2015) (unpubl.)
Evaluation of Functional Limitations on a Sustained Basis and ADLs and the Ability to Sustain Work and Treating Source Issue.
The ALJ seemed preoccupied with discrete instances in which Winn participated in social activities. The ALJ ignored the fact that Winn’s participation in social activities was a prescribed part of her treatment, and these activities do not constitute substantial evidence that Winn would be able to participate in work activities.
Furthermore, “[t]he functional limitations of mental impairments are to be assessed” based on which activities the claimant can do “on a sustained basis.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (finding that a claimant’s ability to “visit his aunt and uncle,” “receive occasional visits from his neighbor,” and “his ability to accompany his wife on [monthly] grocery-shopping trips” do not suggest that he would be able to “interact independently and appropriately with others on a sustained basis” and do not contradict the contrary opinion of his treating source).
Winn’s treatment records do not indicate that she was able to successfully participate in the activities identified on a sustained basis. The ALJ neglected to consider treatment notes describing that, despite participating in social activities at the instruction of her therapist, Winn continued to encounter difficulties in social contexts.
ALJ’s conclusion that Winn did not suffer from a severe mental impairment that would limit her ability to perform work activity was not based on substantial evidence.
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708 (6th Cir. 2014)
Listing Articulation and “Cherry Picking.”
Gentry originally applied for Social Security disability benefits in June 2004. Her application was based upon her severe impairments of psoriasis and psoriatic arthritis, as well as many other numerous conditions. Her original application was denied and remanded twice, once by the District Court after a motion by the Commissioner, and the second time by the Appeals Council. After her third hearing in September 2011, a denial was issued, finding that although Ms. Gentry was disabled in 2011, she was not disabled prior to her date last insured of December 31, 2009.
After a multi-page overview of Gentry’s medical history, the Court determined that the ALJ did not properly determine whether Gentry’s psoriasis and psoriatic arthritis met any of the Listings. The Sixth Circuit stated very clearly that the ALJ ignored record evidence specifically relating to Listing 8.05. The Court stated that the decision was not supported by substantial evidence, and that the record as whole supported a finding of total disability.
This case is important for a number of reasons. First, this decision reiterates that Wilson (6th Cir. ) stands for the principle that an ALJ must follow the regulations.: “An ALJ is bound to adhere to certain governing standards when assessing the medical evidence in support of a disability claim. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004).” Next, it is the leading cherry-picking case in the Sixth Circuit as the Court had strong language regarding how the ALJ’s reasoning showed that she had discounted the severity of the conditions by failing to address whole portions of the record. And the Sixth Circuit showed sympathy for a claimant, acknowledging that a claimant’s “misunderstanding or colloquial description of her multiple and complicated surgeries is hardly an example of a ‘subjective complaint.’”
Glenn v. Comm’r Soc. Sec., 763 F.3d 494 (6th Cir. 2014)
EAJA Federal Court Attorneys Fees.
Glenn filed for Social Security benefits in 2008, alleging an onset date of March 28, 2007. Glenn appeared at her hearing without counsel and was denied. The Appeals Council declined review, and Glenn filed a complaint in District Court and obtained counsel. The District Court reversed and remanded the claim for further review, adopting the Magistrate’s Report and Recommendation that found five separate errors.
Glenn filed for EAJA fees and was denied by the District Court, stating that the position of the United States was substantially justified because “more than half” of the errors Glenn alleged were found to lack merit, that the errors identified by the magistrate judge “related primarily to the ALJ’s explanation for his decision” and that Glenn’s application may ultimately be denied.
The Sixth Circuit disagreed with the District Court and ordered attorney fees to be paid. It acknowledged that the District Court did not find that the government met its burden to show that its position had a reasonable basis in both fact and law and pointed out that the five separate bases for remand (“string of losses”) indicated that the opposition to remand was not substantially justified.
The Court went on to note that several of the errors were plainly contrary to law, including the weight given to a non-examining physician, failure to consider one of the claimant’s impairments, and his failure to advise Glenn of her right to cross-examine the VE. The Sixth Circuit made clear that by denying attorney fees, the District Court had “improperly applied the law” and “used an erroneous legal standard.”
Shilo v. Comm’r of Soc. Sec., No. 14-3417; 600 Fed. Appx. 956 (6th Cir. 1/28/15) (unpubl.)
Obesity and Treating Physician Issues.
Shilo may be one the best cases to come out of the Sixth Circuit in relation to obesity. Unfortunately, it did not get published. Shilo appealed his ALJ denial arguing that the ALJ erred in rejecting the opinion of Shilo’s treating doctor and failed to consider whether Shilo’s obesity limited his ability to work. The Sixth Circuit agreed with both of Shilo’s allegations.
The Court detailed the treatment that Shilo had received, both from his primary treating doctor and the specialists that he saw throughout the time period at issue. The key issue the Court focused on was the ALJ’s treatment of Shilo’s obesity and SSR 02-01p and found that the ALJ’s failure to account for the obesity colored his application of the treating physician rule.
The Court also spent considerable time pointing out that the ALJ was improper in his determination that Shilo should be penalized for failing to follow his doctor’s instructions to lose weight, pointing out that SSR 02-01p “makes it clear that the ALJ cannot penalize Shilo for failing to lose weight.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
This is a Treating Source Opinion Case which was highlighted in a prior Section newsletter but bears repeating.
The 6th Circuit ruled that the Commissioner is required to provide “good reasons” for discounting the weight given to a treating source opinion. Id. 404.1527(c)(2). These reasons must be “supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” SSR 96-2(p), 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996). This procedural requirement “ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ’s application of the rule.” Wilson v. Comm’r of Soc. Sec., 387 F.3d 541, 544 (6th Cir. 2004).
The Court further observed that, with mental impairments, the ability to perform activities must be evaluated in terms of completion on a sustained basis, as per the regulations. See 20 CFR 404.1520a(c)(2); 20 CFR Part 404, Subpart P, Appendix 1, at 12.00 (“Social functioning refers to your capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals.”). The Court observed that Sixth Circuit policy “has made clear that [it] do[es] not hesitate to remand when the Commissioner has not provided good reasons for the weight given to a treating physician’s opinion.” Cole, 661 F.3d at 939.
Lewis M. Seward (Social Security Disability Spring 2016 Newsletter)
FEDERAL COURT PRACTITIONERS
NEW COURT RULES FOR SOCIAL SECURITY CASES
If you haven’t received these already, there are new Court Rules for the Western District of Michigan, specifically for Social Security cases. Administrative Order 16-MS-017 requires the practitioner to cite the electronic record PageID rather than the transcript page. See also companion Administrative Order 16-MS-018 The Order gives the following example:
To Reference and Cite Form Example
A single page-Page ID.234
Multiple sequential pages- Page ID.234-235
Multiple pages that are not in succession-Page ID.234, 238, 245
The Western District notes that the Sixth Circuit Court of Appeals requires reference to the Page ID number and briefs on appeal (6th Cir. R. 28).
The Rule also requires that when citing a portion of a different case record within the Western District of Michigan, you are required to put the 13-digit case number followed by the PageID number, e.g., 1:15-cv-99999 PageID. 234.
Additionally, the Western District amended Administration Order 10-074 effective March 7, 2016, which codifies the overly rigid language regarding briefing scheduling requirements, i.e.:
“The Court expects strict compliance with the briefing scheduling requirements. Requests to exceed the page limitations are not favored, and requests for extensions of time will not be granted except upon a showing of extreme hardship. Failure to adhere to the briefing requirements may result in dismissal of the action or the entry of a default judgement, as appropriate.”
The Western District now has a boilerplate scheduling order requiring 14 days for the parties to consent to the assignment of the Magistrate, 28 days for Plaintiff to file its brief, 56 days for Defendant to file its brief, both of which shall not exceed 20 pages, and then the reply brief, which shall not exceed five pages, to be filed within 70 days.
five-page reply brief limitation is particularly onerous in cases where the
Commissioner raises a plethora of defenses and post-hoc arguments. The new administrative order specifically
indicates that requests for extension of page limits will not be
Lewis M. Seward (Social Security Disability Spring 2016 Newsletter)
IMPROVED INTERNET DISABILITY APPEALS
The following is an excerpt from an article by Nancy Berryhill, Deputy Commissioner of Operations, on recent improvements in filing Disability Appeals online.
Earlier this year, SSA released a new and improved version of the Internet Disability Appeals Application. The new enhancements improve the application’s functionality and efficiency to provide better online service to customers. The new process:
Allows customers to submit an appeal request and medical documentation simultaneously.
Makes third-party information automatically available in all appeal applications within a single session.
In August 2015, the Social Security Administration hosted a webinar titled “Internet Disability Appeals Application Revitalizations and Attachment Utility Update.” The webinar was designed to demonstrate to advocates, social service agencies and representatives how to easily navigate the Internet Disability Appeals Application and request their assistance in promoting this improved online service option. The webinar also included a live Q&A session. To view the webinar presentation, please visit www.ssa.gov/multimedia/webinars/.
has plans to allow people to initiate Title XVI Supplemental Security Income
(SSI) applications online in the future. Individuals age 18 and over can now
open a secure online mySocialSecurity account to have 24/7 access to their
Social Security records. If still
working, an individual can check their earnings record for accuracy, obtain
future benefit estimates and access other tools to better plan for
retirement. If already receiving monthly
benefits, individuals can monitor their payments and make secure changes to
their record such as a change of address or direct deposit information.
To file an appeal, visit secure.ssa.gov/iApplsRe/start.
NEUROPSYCHOLOGIST JENNIFER HUFFMAN, PhD, DISCUSSES
NEUROPSYCHOLOGICAL EXAMINATIONS IN DISABILITY CLAIMS
Huffman, who is board certified in Clinical Neuropsychology with a
sub-specialty in Pediatric Neuropsychology, spoke at our Section meeting
regarding aspects of neuropsychological testing. She received her Doctorate and Master’s
Degree in Clinical Psychology from Wayne State University. She completed her Neuropsychology internship
at the VA Hospital in Ann Arbor and also completed a Pediatric Neuropsychology
fellowship at the University of Michigan.
Dr. Huffman explained the difference between a normal psychological evaluation and a neuropsychological one, which looks at Executive Functioning, Language, Problem Solving and Reasoning. Neuropsychological examinations not only test memory, but Learning Ability, Visuospatial Abilities and Sensory-Motor Skills. In a nutshell, a neuropsychologist must integrate and organize large amounts of information to arrive at a diagnostic conclusion.
Huffman indicated that studies have shown that psychologists are unable to tell
if a patient is not putting forth their best efforts. She spoke about performing Validity Tests to
determine whether the patient is malingering.
Malingering isn’t always such a negative connotation because many
patients/claimants validate a plethora of symptoms which they genuinely believe
they have. It may be viewed as more of a
cry for help than intentional desire to mislead. Some of those tests include:
· Test of Memory Malingering
· Medical Symptom Validity Test
· MMPI Validity Test
· Personality Assessment Inventory
However, SSA discourages the use of validity tests since it is the ALJ’s job to access credibility. Dr. Huffman indicates that up to 40% of medical/legal cases failed the validity test.
Dr. Huffman also indicated that tests have shown that 60% of claimants who file for disability also are diagnosed with a mental disorder.
Dr. Huffman talked about patients with traumatic brain injury. She indicated Processing Speed is the test most sensitive for TBI patients. The California Verbal Learning Test is the second most sensitive.
Dr. Huffman’s office is located in East Lansing, Michigan. She may be contacted at firstname.lastname@example.org. Her phone number is (517) 337-9554. She is also a Professor at Wayne State University and lectures at Michigan State University School of Psychology and Human Behavior Development. She also currently serves as a Supervisor for undergraduate and graduate students at Eastern Michigan and Michigan State.
Lewis M. Seward (Social Security Disability Spring 2016 Newsletter)
IMPORTANT MESSAGE TO LISTSERV USERS:
In case you missed all the hullabaloo, your Section has made some changes in how we communicate with you and each other.
We are now on Facebook!
Yes, really. Go there and “like” us: https://www.facebook.com/SBMSSA/
We have disconnected the listserv! We are now sending you information through SBM Connect. If you have completed your SBM Member profile, and checked your settings, then you are still getting all the news delivered right to your inbox, it just looks a bit different than the listserv did. If you think you are missing something, go to the FB page and read the tutorial on using SBM Connect.
If you don’t know what I’m talking about, then do this and you will be in the know once again:
1. Go to http://www.michbar.org/ Click “SBM Connect” at the top of the page.
2. Click “Sign In” at the top right of the next page, where you will enter your SBM login user and PW.
3. The SBM Connect Home page appears, with a “Getting Started” checklist on the left side, for how to use it generally, including setting your email/discussion board preferences and settings. That is where you make sure we have your email address and control whether and how often you see our discussions, notices, announcements, etc.
4. Once you are comfortable with that (like, 20 seconds), then from that same Home page you can go directly to our Section news by clicking “Sections” at the top of the page, then Social Security Lawyer Section from the list that appears.
5. Voila! You are on the Section landing page, where you will see the Facebook link, the tutorial link, the discussion board, our recent announcements, etc.
6. To start a discussion from this page, click “More” under the “Latest Discussions” column. That will take you to all the recent discussions, and a link to start a new one. Responding to a discussion already started can be done either from the website, or right from your own email inbox by clicking the appropriate “reply” link.
Don’t miss out, do it now!
ROBERT WALSH TALKS ABOUT VETERANS’ BENEFITS
Bob Walsh, who has been a regular featured speaker in our Section, spoke about VA disability benefits and the difficulty encountered in representing those claimants. He spoke about PTSD and indicated that up to 20% of Iraq and Afghanistan War veterans have been diagnosed with PTSD or will suffer symptoms of PTSD in the future. These veterans face challenges in filing VA disability claims, a process that includes a lengthy application and strict deadlines. Mr. Walsh also spoke about veterans who have applied for disability benefits after receiving a rating of total disability. A study that examined the intersection of these two Federal programs recommended that SSA increase its outreach in collaboration with the Department of Veterans Affairs to improve access to Social Security benefits. In an article submitted in Mr. Walsh’s presentation material, both houses of Congress introduced legislation known as the BRAVE Act that would certify veterans judged by the VA to have total disability as meeting the medical requirements of the disability programs administered by SSA. Total disability is defined as having a combined rating of 100% or a rating of individual unemployability (IU). Approximately half of the veterans in a study from 2000 to 2006 who were found totally disabled applied for DI benefits. Over one-third of those were granted. The study found that veterans with VA total disability ratings did not meet SSA’s disability standards because of differences in the two programs’ purposes and disability criteria. Both programs tend to serve an older population, with more than two-thirds of VA total disability awards going to Vietnam-era veterans older than age 50. The BRAVE Act has passed in the House, but the Senate has not acted on the bill yet. On a related note, a case highlighted by Cliff warrants discussion here. LaRiccia v. Comm’r of Soc. Sec., No. 12-4198 (6th Cir. 12/13/13) 2014 U.S. Dist. LEXIS 26788 (unpubl.). VA Disability Rating of 100%. LaRiccia, who was successful in his pro se Sixth Circuit appeal, initially applied for disability benefits in 2006, alleging an onset date of October 28, 2004, the effective date of his VA disability rating of 100%. The ALJ issued a denial, finding that the claimant could perform other positions in the national economy. The Appeals Council declined review and the District Court affirmed the ALJ’s decision. The claimant continued pro se to the Sixth Circuit, which speaks to the vet’s fortitude. The Court found merit in three of LaRiccia’s claims. First, the Court agreed that the ALJ did not properly discuss the opinions provided of the claimant’s treating physicians and that this warranted remand. Second, the Court agreed that the ALJ erred by drawing negative inferences from the claimant’s failure to seek treatment in Ohio without considering the claimant’s explanation.
The Court agreed that the ALJ did not properly weigh the VA decision. The ALJ erred by discounting the VA assessment because it included conditions not deemed “severe” in the Social Security context. The Court also stated that the ALJ’s decision implied that for a VA assessment to be relevant, each of the conditions considered by the VA must be total disability. This was in error. The Court confirmed that, regardless of the weight afforded to the VA determination, the ALJ needs to explain the consideration given to those determinations in his decision. The Court reversed and remanded for further consideration.
Lewis M. Seward (Social Security Disability Spring 2016 Newsletter)
SOCIAL SECURITY SECTION ESTABLISHES
THE MIKE DUDLEY AWARD
Our Section is creating a yearly Mike Dudley Award for Section members to nominate other members or themselves starting in fiscal year 2016-2017. We are still working on the criteria that will be used both for nomination as well as for the selection of the person(s) who wins the future Mike Dudley Awards. Hence, the final details are not set yet. This year, the Mike Dudley Award will be given posthumously to Mike Dudley (through his family) for his continued lifelong service above and beyond to claimants seeking SSA disability benefits. It will be given at the 2016 Annual Meeting to be held on September 30, 2016, at the VisTaTech Center of Schoolcraft College.
Joe Petrylak (Social Security Disability Spring 2016 Newsletter)
Strang v. Comm’r of Soc. Sec., No. 14-1610 (6th Cir. May 4, 2015) (unpubl. - no corresponding Fed. Appx. number)
ALJ’s Duty to Develop the Record.
Strang appeared before an ALJ without a lawyer. The ALJ informed Strang of his right to representation and explained that, if Strang chose to proceed without an attorney, the ALJ would ask questions, and if there are medical records missing, would request those for him. On several other occasions the ALJ emphasized to Strang how important the new records from the treating doctor were, assured Strang that she would get and review records from the treating doctor “before I make any decision in this case,” and at one point stated, “it sounds like it would be pretty important for me to get Dr. Wagner’s records and see what’s going on.” The record appeal did not contain either the records or any documentation they were ever requested by the ALJ.
The Court obviously remanded, finding that under these circumstances, the ALJ must obtain the records or at least explain their absence. The ALJ must “develop [claimant’s] complete medical history” and “make every reasonable effort to help [the claimant] get medical reports from [the claimant’s] own medical sources.” 20 CFR _ 404.1512(d). This duty to develop a full and fair administrative record is heightened – although it does not remove the burden of proof from the claimant – when the disability claimant is not represented by counsel at the administrative hearing. See Duncan v. Sec. of Health & Human Servs., 801 F.2d 847, 856 (6th Cir. 1986); Wilson v. Comm’r of Soc. Sec., 280 F. App’x. 456, 459 (6th Cir. 2008).
TRIBUTE TO D. MICHAEL DUDLEY
D. Michael (“Mike”) Dudley spent most of his adult life caring about the effects of the physical and mental health problems of others. That ended during his 65th year, on September 26, 2015, three months after the passing of his office manager, who was his constant companion and wife, Jane. Mike was a disability lawyer who practiced Social Security disability law for many years in the East Lansing office of Mike Dudley Law, PC.
In 2006-2007, Mike chaired the Social Security Disability Section of the Michigan Bar Association. It was an inspiring year of leadership for our Section activities and seminars. Membership in the National Organization of Social Security Claimants’ Representatives also claimed some of his attention. Mike was a passionate advocate for his disabled clients who no doubt remember him with gratefulness for a job always well done.
Mike was fearless when advocating for his clients. He would not back down from controversy with whoever opposed his clients’ interests. This was true even when he appeared at ODAR in a wheelchair himself, cared for by his always-present helper, Jane Dudley. They always came as a package.
Mike. Happy hereafter, and know your
inspiration lives on here and in our Section at the Bar.
Section Member -
Charles Robison (Social Security Disability Spring 2016 Newsletter)