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Very Recent Decisions from Three Separate Circuit Courts Clarify ALJ’s’ Obligations Under SSR 00-4p

As we know, SSR 00-4p, among other things, obligates an ALJ to identify and resolve any inconsistencies between the DOT and a VE’s testimony. Cases evaluating this issue have typically set the bar fairly low in terms of the nature of the ALJ’s obligations under 00-4p. In particular, courts have tended to find that unless the inconsistency was very obvious and/or was brought to the attention of the ALJ (usually, what the court means here is that the Claimant waives this issue if it is not brought to the ALJ’s attention), the ALJ does not have any, or much, obligation to “play detective” and look behind the VE’s testimony. Three decisions issued recently by the Eleventh, Fourth, and Second Circuits are very favorable to Claimants on this issue.

In Washington v. Comm’r of Soc. Sec., 906 F.3d 1353 (11th Cir. 2018), issued in October 2018, the court held that “[the ALJ’s obligations under 00-4p] is not fulfilled simply by taking the VE at his word that the testimony comports with the DOT. When the record reveals an apparent conflict between the VE’s testimony and the DOT.” Here, and very notably, the 00-4p issue was preserved, in the court’s opinion, over the Agency’s argument that the issue had been waived at the administrative level because the representative did not bring it to the ALJ’s attention. This was so based on the court’s interpretation, with a detailed survey of Agency policy and of how other circuits have resolve the issue, of “apparent inconsistency”, because the VE’s testimony that the Claimant was able to perform the job identified despite a limitation to occasional fingering, what is in direct conflict with information in the DOT companion volume, Selected Characteristics. Thus, Washington joined in the interpretation of an ALJ’s obligations under 00-4p, as found in the Seventh, Eighth and Tenth circuit’s (e.g. Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005); Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008); Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014); Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015); Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)).  Congratulations to Michael Steinberg, Esq. of Tampa Florida for obtaining this very helpful decision.

In Thomas v. Berryhill, 2019 U.S. App. LEXIS 1312 (4th Cir., January 15, 2019) there were two favorable aspects to the court’s decision to remand for further proceedings. First, at issue was the ALJ’s evaluation of the Claimant’s mental RFC, which the court held “contains too little logical explanation” for meaningful judicial review.  Id. at *6.  In particular, the court emphasized that (1) the ALJ had drew no explicit conclusions about how the Claimant’s mental limitations affected her ability to work on a full-time basis, (2) the ALJ did not explain sufficiently how she weighed the evidence contradicting her finding that the Claimant had no mental limitations at all, (3) the ALJ had expressed her RFC finding first, and only then concluded that the limitations were consistent with the RFC and (4) although the ALJ stated that the Claimant could not work at a “production rate or demand pace,” she had given no insight into what those terms mean.

Very interestingly, the court went on to discuss an issue related to 00-4p, “since it is likely to come up again below…”  Id. at *9 (it is unclear whether the court considered this issue sua sponte, or whether it was an issue briefed by the parties). With respect to 00-4p, the court held that “an ALJ cannot rely unquestioningly on a VE’s testimony,” but rather must identify and elicit a reasonable explanation for any conflicts between the testimony and the DOT.  Id. at *10-11 (citing Pearson).  The court then identified as an apparent contradiction the VE’s identification of jobs with a “reasoning level” of 2 (requiring detailed tasks) with the RFC/hypothetical assumption that Claimant was limited to “short, simple instructions,” may not be able to carry out detailed but uninvolved instructions required by reasoning level 2.  Id. at *12.  Congratulations to Dana Duncan, Esq. of Nekoosa, Wisconsin for obtaining this very helpful decision.

Finally, in Lockwood v. Comm’r of SSA, No. 17-2591-cv, 2019 U.S. App. LEXIS 2104 (2d Cir. Jan. 23, 2019) the Second Circuit became another circuit which has held regarding the 00-4p requirement to identify and obtain a reasonable explanation for inconsistencies, that a limitation to no overhead reaching was inconsistent with the DOT descriptions of the jobs identified by the VE, since the jobs required occasional or frequent reaching/handling. The critical discussion in this decision is repeated here:

But while “this Court could guess” what the three jobs [the vocational expert] identified “require in reality, it [was] the  [Commissioner’s] duty to elicit an explanation from [Heller] as to whether th[ose] occupations actually require . . . overhead reaching.” Spears v. Colvin, No. 15-CV-6236, 2016 U.S. Dist. LEXIS 127084, 2016 WL 4973890, at *5 (W.D.N.Y. Sept. 19, 2016). The importance of teasing out such details is precisely why the Commissioner bears an “affirmative responsibility” to ask about “any possible conflict between [vocational expert] evidence and information provided in the [Dictionary].” SSR 00-4p (emphasis added). Absent such an inquiry, the Commissioner lacks a substantial basis for concluding that no such conflicts in fact exist. [citing Washington and Pearson]

Lockwood, 2019 U.S. App. LEXIS 2104, at *13-14.  Congratulations to Patrick Radel, Utica, New York, for obtaining this very helpful decision.

Lockwood therefore explicitly joins Washington, Pearson, et.al., and dovetails nicely also with Thomas. Washington, Thomas and Lockwood are three really nice, very recent decisions that we need to take full advantage of.

The “Social Security 2100 Act,” championed by Rep. John Larson (D-CT), is getting a hearing in Congress!

The “Social Security 2100 Act,” championed by Rep. John Larson (D-CT), which was the subject of another recent OBL News post, is getting a hearing in Congress!

Social Security 2100 proposes to shore up this benefit program for 62 million beneficiaries while ensuring the program’s financial stability. Among its proposals are that any increase in benefits under its provisions wouldn’t affect eligibility for other key federal programs, including Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program.

 

https://thehill.com/opinion/finance/427835-a-bill-to-boost-social-security-will-finally-get-a-full-and-fair-hearing

 

One-third of all Americans between the ages 35 and 65 will become disabled for more than 90 days and 1 in 7 workers will be disabled for more than five years

Over the years, we have handled tens of thousands of disability claims for injured workers. The one thing they have in common is that none of the clients planned on having a disability. According to the American Council of Life Insurers, one-third of all Americans between the ages 35 and 65 will become disabled for more than 90 days and one in seven workers will be disabled for more than five years. Short Term/Long Term Disability policies can be purchased through an employer from companies like Aetna, MetLife, New York Life, etc. This type of policy can provide more immediate financial relief than relying on Social Security Disability alone. Read more to learn about various disability insurance options:

https://www.disabled-world.com/disability/insurance/

 

New proposed rule sets a “floor” for social security benefits at 25% above the poverty level, among other pro-claimant recommendations.

Congressman John Larson of Connecticut is again making the rounds with Social Security 2100, a set of proposals he has been making for a few years to both protect the Fund and to ensure the meaningfulness of the benefits for our lowest earning neighbors:

  • Immediate increase in Social Security benefits equal to about 2% of the average benefit amount.
  • Adoption of a new way to adjust for inflation for determining annual cost-of-living adjustments to benefit payments, based on the CPI-E, an inflation benchmark that incorporates goods and services that are more appropriate for the older and low income Americans.
  • A minimum benefit set at 25% above the federal poverty line to ensure that low-income workers avoid poverty in retirement.
  • Higher income thresholds for tax-free benefits, with the income levels at which a portion of Social Security can become included in taxable income rising from $25,000 to $50,000 for single filers and from $32,000 to $100,000 for joint filers.
  • Collection of Social Security payroll taxes on wages and self-employment above $400,000 ($132,900 currently).
    phase-in of higher payroll tax rates for Social Security, which would eventually take the current level of 6.2% up to 7.4% by 2042.

The bill would ensure that any increase in benefits under its provisions wouldn’t affect eligibility for other key federal programs, including Supplemental Security Income, Medicaid, and the Children’s Health Insurance Program.

 

The Congressional Budget Office Recommends Cuts to Social Security Benefits

The Congressional Budget Office’s recommendation for reducing the deficit includes cuts to Social Security Disability, including eliminating Child’s SSI benefits altogether.

Among the CBO’s recommendations are six “mandatory spending” options, as well as a taxation option:

  • Eliminate Supplemental Security Income Benefits for Disabled Children
  • Link Initial Social Security Benefits to Average Prices Instead of Average Earnings
  • Make Social Security’s Benefit Structure More Progressive
  • Option 31 Raise the Full Retirement Age for Social Security
  • Require Social Security Disability Insurance Applicants to Have Worked More in Recent Years
  • Eliminate Eligibility for Starting Social Security Disability Benefits at Age 62 or Later
  • Tax Social Security and Railroad Retirement Benefits in the Same Way That Distributions From Defined Benefit Pensions Are Taxed.

The full CBO report can be viewed at https://www.cbo.gov/system/files?file=2018-12/54667-budgetoptions.pdf.

LTD Benefits: What You Need To Know

 

Erik Berger, OBL Partner and Long Term Disability Specialist, recently wrote an article for The National Association of Disability:

“According to a 2016 survey, approximately 40% of Americans have a privately purchased disability insurance policy or a disability policy offered through their employer. Since Social Security disability benefits, on average, provide approximately one third of the amount of the average disabled worker’s paycheck, and since many people live paycheck to paycheck without substantial savings, the successful presentation of a Long Term Disability benefits claim (LTD) is absolutely critical to maintaining the worker’s financial and personal stability. For instance, a 2017 study of bankruptcy court records demonstrated that over 40% of mortgage foreclosures are attributed, at least in part, to disability.

LTD benefits obtained as a benefit of employment (and usually paid for by the employer), somewhat like Social Security benefits, are paid to beneficiaries whose disability is expected to last more than a few months; although the terms of the LTD contract control, generally speaking most workers may be entitled to LTD benefits for up to 2 years if they are unable to work at the job they were performing when they became disabled, and even permanently if the worker’s disability results in an inability to perform any gainful employment. In almost all cases involving a disability policy purchased by the company, the worker will be required, as a condition of receiving LTD benefits, that they also apply for Social Security disability. However, if the LTD policy is bought privately most of these policies provide disability benefits on the sole basis that the policyholder is unable to perform their past job.

One way that claims for LTD benefits is vastly different from Social Security claims is that they are adversarial cases, where the employer and/or insurance company has claims adjusters, doctors, vocational experts and other experts who provide evidence against the worker’s interest. So, even though the “HR person” at the company may be, in fact, a very nice person, this should not lull the worker into forgetting that, in the end, the employer/insurance company will always look out for itself first. “

OBL Applauds AALJ Statement Regarding Hearing Scheduling

The Association of Administrative Law Judges (AALJ) is the professional association that 80% or more of Social Security ALJs belong to, and carries as part of its mission statement a commitment to the “independent and honorable administrative judiciary as indispensable to justice in our society.” In the President’s Newsletter dated November 16, 2018, the AALJ responded to a new regulation proposed by SSA to give sole discretion in how hearings are scheduled (in person or by video) to the Agency, thereby taking away the claimant’s ability to opt for an in-person hearing with the ALJ who is going to decide their case. AALJ President Marilyn Zahm commented that ” [t]he Agency’s explanation for these drastic changes is spurious – the Agency already easily moves caseloads from backlogged hearing offices to other locations around the country.  There is no need to force claimants to give up their right to an in-person hearing – the Agency’s own statistics show that only 32% optout of a video hearing. Thus, two-thirds of the caseload can be moved without the need for this regulation.  Where is the need to be able to move ALL hearings and deprive all claimants of the right to in-person hearings?”.

OBL agrees wholeheartedly with ALJ Zahm’s assessment, and applauds her strong words and analysis. We also wonder why it often seems like the AALJ and Social Security representatives’ professional associations are often in a contentious relationship. Plainly, the AALJ’s commitment to the integrity and independence of ALJs is something that all claimants representatives do (or should) support. The AALJ website can be found at https://www.aalj.org/.

Karl Osterhout

Managing Partner, Osterhout Berger Disability Law

Pennsylvania Reinstates General Assistance Program

OBL is delighted to forward the following message from Richard Weishaupt, the Director of Community Legal Services in Philadelphia:

It is with great thanks that I can say that Pennsylvania has reinstated the General Assistance program.  As you may recall, the Pennsylvania Supreme Court unanimously held that Act 80, which eliminated the GA program, had been enacted in a manner that violated the Pennsylvania Constitution.  It has taken several months for the state to revise their computer programs and retrain their staff, but they have been accepting applications while they were reprogramming.  Finally, eligible Pennsylvanians began getting benefits today, just in time for Thanksgiving.

Payments began being authorized beginning Monday, 11/19, and benefits began appearing on people’s Access Cards today, the morning of 11/20.  We began getting reports of this happy news a few hours later.  We have been told that the process of granting benefits to the folks who have already applied will continue for the next few days.  Initial payments should be completed by the end of November.  People who finished their applications a month ago will get a month of benefits ($205 in most counties, including Philadelphia and Allegheny County) while others who finished the application and turned in all of the needed paperwork in August or September will get more.  Those who only recently applied will get less.

People whose applications have been approved will be sent a notice starting around 11/20 saying they are eligible and should check to see if there are benefits on their Card.  If they don’t have an EBT Access Card, they should contact the CAO to get one, but anyone with food stamps should already have one.  People who are approved for GA and already have Medicaid but not Food Stamps will need to get a new card from the CAO.

Here are the numbers we have received from the Department: As of last Friday (11/9) 2458 people have been found eligible and their payments will be issued this week and next week.

Another 6049 cases are pending, meaning something else needs to happen – they need to provide verification, including Employability Assessment Forms (EAF) and/ or they may need to be interviewed. They should check their mail or contact the Department if it is not clear what they need to do.  They can check on the status of their cases by going to the County Assistance Office or by calling the Customer Service Center (215-560-7226 for Philadelphia, and 1-877-395-8930 for the rest of the state) .

13,748 people have been found ineligible – we’re not sure why.  They may not have submitted verification or kept an appointment or who knows what.  They should have gotten or will soon get a letter saying why they were turned down.  They can appeal within 30 days of the date of the turn down.  They can also try to fix the problem by bringing in the needed verification or asking for an appointment.  Under Department rules they can “refresh” their application within 60 days but they will only get benefits back to the day that they provide needed verification or complete their interview.  In either case they should act quickly.  People who live in Philadelphia can contact Community Legal Services (215-227-2400) or Philadelphia Legal Assistance (215-981-3800) for help. People who live in other counties can contact their local legal aid program for help—information is available at https://palegalaid.net.

More detailed information and copies of Departmental policy can be found on the Community Legal Services of Philadelphia website.  www.clsphila.org/GA .  A copy of the most recent DHS policy will be on the CLS webpage shortly.

Osterhout Berger Disability Law Files Brief Before the Supreme Court

In Biestek v. Berryhill the Supreme Court will consider whether a Social Security judge erred when she failed to require the vocational expert to produce evidence that, in part, formed the basis for her testimony that there were a significant number of jobs the claimant could perform despite his limitations. Specifically, when asked on cross-examination by the claimant’s representative (we did not represent this claimant at his hearing) to explain the basis for her opinion that there were a significant number of jobs the claimant could perform, the vocational expert explained that she based her opinion on a combination of sources, one of which was a study she had personally done of the local job market. When asked to produce this study, the vocational expert stated that it was confidential (even though it could have been easily redacted) and the Social Security judge denied the claimant’s request that the vocational expert be ordered to produce it. She then issued her decision denying the claimant’s claim for benefits altogether.

The district court in Michigan and the Sixth Circuit Court of Appeals held that the Social Security judge did not err in failing to require the vocational expert to produce this evidence, which set up a “Circuit split” between the Sixth Circuit’s decision and the Seventh Circuit’s decision 15 years ago in McKinnie v. Commissioner, Social Security. McKinnie held that any data, information, or study, relied upon by the vocational expert to support his/her testimony must be made “available on demand.” As some readers may know, one of the reasons the Supreme Court will take a case (it only takes about 100 cases per year) is when the circuit courts disagree about an issue that the Supreme Court believes is an important one for there to be uniformity among all the circuits.

As mentioned above, OBL did not represent the claimant at his hearing and, technically speaking, still does not represent him. Rather, Karl Osterhout was asked by the National Association of Disability Representatives (NADR) to assist it in filing an “amicus brief,” (a “friend of the court” brief), a brief to the Supreme Court in which an individual or organization with a vested interest in the outcome of the case can submit a brief in support of its position on how the case should be decided. NADR is a professional organization of Social Security representatives which sponsors several events per year geared toward networking and continuing legal education and easily qualified as an organization with a vested interest in the outcome of this case, since Biestek has numerous possible ramifications for how vocational expert testimony is used in Social Security cases, particularly how it is used when the claimant’s claim is denied.

Mr. Osterhout had the distinct privilege of working closely with Wilkinson Walsh + Eskovitz, a Washington DC boutique firm specializing in high-stakes litigation, including Supreme Court appeals. Moreover, WWE graciously agreed to assist in the brief writing without charging its usual fee for doing so. The position taken in the NADR brief is one, we hope, that will be appealing to the Court in that it suggests that there is a very narrow way to decide the case without getting into the significant complexities of vocational expert testimony in Social Security disability claims.

Oral argument is scheduled in Biestek on December 4; at that point, it is anybody’s guess when the Court’s decision will be released, but it should be issued before the Court convenes for the summer in early June 2019.

Cigna Awards Benefits after Osterhout Berger Disability Law File a Lawsuit in Federal Court

Our client, a Patient Services Representative, was forced to stop working in 2016 because of medical conditions to include fibromyalgia, chronic fatigue syndrome, neuropathy, lumbar radiculopathy, and rheumatoid arthritis. She filed a claim with Cigna for Long Term disability benefits and was denied these benefits in early 2017.

The former Patient Services Representative then hired Osterhout Berger Disability Law and following a review of Cigna’s claim file, Attorney Berger obtained medical treatment records and medical opinions from our client’s treating doctors revealing the severity of her impairments.

Attorney Berger filed an appeal but Cigna failed to issue a decision in a timely manner. He then filed a complaint in Federal District Court, which led to Cigna, in short fashion, recognizing that it failed to address her appeal. Cigna immediately initiated a review of our client’s appeal and determined that she was entitled to Long Term disability benefits back to 2016.

If your application for Long Term disability benefits or your appeal of a decision denying or terminating has been denied do not hesitate to contact Osterhout Berger Disability Law for a free consultation.