Appeals Council Remands Abound

Empire Justice Center October 30, 2020

OK, maybe not abound, but advocates report several victories at that most mysterious of appeal levels. Both Mike Telfer and Adam DeFayette of the Legal Aid Society of Northeastern New York had success in cases. And Empire Justice advocates sought and obtained remands as well.


Mike’s appeal involved some of the more frustrating aspects of Administrative Law Judge (ALJ) decisions.  The ALJ concluded the claimant had moderate limitations in the various work-related areas of functioning, including interacting with others. In his residual functional capacity (RFC), the ALJ limited the claimant to “occasional” interaction with supervisors and co-workers and “incidental” interaction with the public.  The Appeals Council found “incidental” vague and not defined in vocational terms. Furthermore, the ALJ found these limitations did not significantly erode the occupational base, and thus did not call a vocational witness. The Appeals Council, however, quoted the introduction to the mental listings at 20 CFR Part 404, Subpart P, App. 1, section 12.00(C)(2): “Social functioning in work situations may involve interactions with the public, responding appropriately to persons in authority (e.g., supervisors), or cooperative behaviors involving coworkers.” It held that moderate limitations in this area of functioning may significantly impair the ability to respond to supervision and co-workers. Thus, vocational testimony was warranted.


In an appeal of a child’s SSI claim involving the new opinion evidence regulations discussed above on page —, the Appeals Council remanded because, among other reasons, the ALJ did not specify the persuasiveness of the opinion of the state agency consultant who assigned a marked limitation.  Nor did the ALJ reconcile the opinion of the consultative examiner (CE), who also rated a limitation as marked.  The Appeals Council also criticized the ALJ’s failure to discuss or consider testimony when assessing subjective symptoms. Of note, the Appeals Council audited the hearing tape and noted that the ALJ had been unable to understand the claimant’s testimony, supporting his alleged and documented speech issues. The ALJ also failed to provide an adequate rationale to support his findings in the various childhood domains. At no point did the ALJ separately analyze each domain and their relevant records.  Mike was particularly pleased the Appeal Council cited his briefs to both the ALJ and the Appeals Council.


Adam also obtained a remand under the new opinion evidence regulations. The Appeals Council found that the ALJ did not properly evaluate the opinion of a non-medical source. The claimant’s Licensed Mental Health Counselor (LMHC-P) had opined the claimant is unable to meet competitive standards of work due to her psychological symptoms. She opined the claimant would have marked limitations in interacting, concentrating, and adapting, and would miss three days of work per month. The ALJ found her opinion partially persuasive, yet the residual functional capacity (RFC) established by the ALJ diverged significantly from the LMHC’s limitations. The claim was remanded for further consideration of the LMHC’s statement.


Doris Cortes of the Empire Justice Center in Rochester convinced the Appeals Council that the ALJ erred in finding her client’s myasthenia gravis not medically determinable. The ALJ claimed there were no objective findings to establish a diagnosis. The Appeals Council reviewed the extensive evidence of record, including a positive acetylcholine antibody test, as well as treatment notes documenting progressive weakness, double vision, and difficulty swallowing. It ordered the ALJ on remand to re-evaluate whether the myasthenia gravis is indeed a severe condition.


Finally, Keana Williams formerly with the Empire Justice Center, persuaded the Appeals Council to remand her client’s claim because the ALJ simply ignored an opinion of a LMHC who treated the claimant. The therapist completed several detailed non-medical source statements that the ALJ did not evaluate. Of note, Keana focused exclusively on that argument in her memo to the Appeals Council, a technique that apparently caught someone’s attention.


So, the moral of the story is that as frustrating the Appeals Council can be, it sometimes listens.