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Disability Law News – Bulletin Board

Empire Justice Center July 31, 2022

This “Bulletin Board” contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit.

We will continue to write more detailed articles about significant decisions as they are issued by these and other Courts, but we hope that this list will help advocates gain an overview of the body of recent judicial decisions that are important in our judicial circuit.

SUPREME COURT DECISIONS

Carr v. Saul, 141 S.Ct. 1352 (Apr. 22, 2021)

The Supreme Court held that a claimant is not precluded from raising a legal issue for the first time in U.S. District Court if it was not raised before the Administrative Law Judge (ALJ).  The underlying issue in question in Carr and its companion cases was whether the ALJ was properly appointed under the Appointments Clause of the U.S. Constitution. In the aftermath of Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018) challenging the constitutionality of SEC ALJs, Carr and other plaintiffs challenged the legitimacy of the ALJs who had denied their disability claims and sought new hearings. The Commissioner argued the plaintiffs had forfeited their Appointments Clause challenges because they had not raised them before SSA during the administrative appeals process. The Supreme Court resolved a conflict in the circuits by holding that given the non-adversarial nature of SSA hearings, issue-exhaustion is not required.

 

Smith v. Berryhill, 139 S.Ct. 1765 (2019)

The Supreme Court held that an Appeals Council dismissal of a request for review is a final decision subject to judicial review.  The Court unanimously held that where the     Appeals Council has dismissed a request for review as  untimely after a claimant has obtained a hearing from an ALJ on the merits, the dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of 42 U.S.C § 405(g). It distinguished its earlier ruling in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), by emphasizing that as opposed to the denial of a request for reopening in Sanders, there had been a decision by an ALJ on the merits of the plaintiff’s claim.

 

Biestek v. Berryhill, 139 S.Ct. 1148 (2019)

In a 6-3 decision, the Court declined to adopt a categorical rule that a vocational expert’s supporting data must be provided in order for the testimony to constitute substantial evidence. But the majority acknowledged that in some cases it may be possible to draw an adverse inference against a VE who refuses to provide supporting data.

 

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

Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. Apr. 6, 2022)

The court affirmed the District Court decision under the pre 2017 opinion evidence regulations that applied in this case. It found the ALJ properly accorded lesser weight to the opinions of two treating physicians because one was conclusory and vague and the other, rendered in check-box format, was not supported by the medical evidence. And according to the court, both opinions as to the plaintiff’s tremors and sensory deficits were inconsistent with the medical evidence, which identified only mild tremors, and the plaintiff’s testimony. The court also agreed with the ALJ’s assessment that the opinion of the consultative examiner was entitled to even less weight. It rejected plaintiff’s argument that the ALJ could not make an RFC finding because she had declined to accord controlling weight to any of the medical opinions; the ALJ is entitled to weigh all available evidence to make RFC findings and her conclusion need not perfectly correspond with opinions of record. Finally, the court found that the ALJ’s failure to articulate the so-called Burgess factors for evaluating treating source opinions to be harmless error as it was evident she had applied the substance of the treating physician rule.

 

Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022)

The court remanded, finding the ALJ erred in failing to accord controlling weight to the opinion of the treating physician under the pre 2017 opinion evidence regulations that applied in this case. The court held the ALJ failed to find good reasons under the old regulations for discounting the opinion of a concussion specialist that the plaintiff would be off task 33% of the day and absent more than four days per month due to her headaches and other impairments. The ALJ also erred in discounting the opinion because it was presented in “check box” form; the opinion was supported by voluminous treatment notes. The court criticized the ALJ for “cherry-picking” particular instances of improvement to create inconsistencies with the treating source opinion. And it criticized the ALJ for relying too heavily on the opinions of consulting physicians, particularly where the consulting opinions did not address or dispute the crux of the treating source’s opinion.

 

Alexander v. Saul, 5 F.4th 139 (2d Cir. July 8, 2021)

The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).

 

Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020)

The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.

 

Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019),

The Court of Appeals endorsed in strong terms the value of treating source evidence and affirmed its prior treating physician rule cases.  The court faulted the ALJ for failing to consider explicitly the Burgess factors incorporated into the former opinion evidence regulations, which were replaced in 2017 by 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The new regulations were not considered by the court.

 

Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT).  The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 

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.

 

Lockwood v. Comm’r of SSA914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.