Having trouble viewing this email? View it in your web browser

April 2024

Welcome to the new edition of Disability Law News. This April 2024 issue will cover: major changes to the the Social Security Administration’s overpayment policies; final regulations issued regarding in-kind support and maintenance (ISM) and past relevant work; an updated Waterfall Chart; an Emergency Message (EM) regarding COVID-related overpayments; SSA’s new release of its complete list of POMS and EMs; SSA’s Equity Action Plan update; an update on the Second Circuit Gibbons case; two success stories from Legal Aid Society of Northeastern New York; an interview with former DAP supervisor Karen Welch; and an endnote.

SSA Makes Major Changes to Its Overpayment Policies

SSA Updates Its Equity Action Plan 

SSA Publishes Annual Waterfall Chart for FY23

Rules & Regulations

_______________________________________________________________________________________________________

SSA Finalizes Package of Rules Limiting ISM 

SSA Changes the Definition of Past Relevant Work

Emergency Message Issued for COVID Overpayments 

SSA Releases Complete Lists of POMS and EMs

Administrative Decisions

_______________________________________________________________________________________________________

AC Issues Final Decision in Gibbons Remand 

Appeals Council Remands in a Borderline Age Case 

Post-entitlement Advocacy Pays Off for Client 

Send Us Your Decisions!

Have you had a recent ALJ or court decision or SSA update that you would like to see reported in an upcoming issue of the Disability Law News?
We would love to hear from you!
Contact Jennifer Karr, jkarr@empirejustice.org or Emilia Sicilia, esicilia@empirejustice.org

Bulletin Board

_______________________________________________________________________________________________________

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. The Second Circuit summaries, as well as earlier decisions, are also available here.  

Synopses of non-precedential summary orders issued by the Second Circuit are available here.

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

Supreme Court Decisions 

U.S. v. Vaello Madero, 142 S. Ct. 1539 (April 22, 2022)

In an 8-1 decision, the Supreme Court held that the exclusion of residents of Puerto Rico from the Supplemental Security Income (SSI) program does not violate the United States Constitution. The Court applied the rational basis test to find it permissible to treat residents of territories such as Puerto Rico differently than if they lived in a state because of the different tax status applicable to territories, an outcome authorized by the Territories Clause of the Constitution. The Court declined to rebuke the Insular Cases, a line of case law that sanctioned the colonial relationship of the U.S. to the territories, and that determined the full scope of the Constitution did not apply. A lone dissent by Justice Sonia Sotomayor described the majority decision as “especially cruel given those citizens’ dire need for aid.”

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.

Second Circuit Decisions

Rucker v. Kijakazi, 48 F.4^th 86, 2022 WL 4074410 (2d Cir. Sept. 6, 2022)

The court remanded under the pre 2017 opinion evidence regulations that applied to this case, finding the ALJ had not identified substantial evidence to support her conclusion that the plaintiff could work alone except for normal supervision. She also failed to provide good reasons for rejecting the limitations identified by the treating psychiatrist, erroneously rejecting it because it was based on the plaintiff’s own reports. Nor was the plaintiff’s periodic lack of complaints of symptoms sufficient given her lack of insight. The ALJ should not have relied on the plaintiff’s ability to attend therapy as an indication of ability to work. Nor did some positive progress notes and mental status exams justify rejecting the treating source. The ALJ also relied too heavily on a consultative exam.

Schillo v. Kijakazi, 31 F.4^th 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.

Fields v. Kijakazi, 24 F.4^th 845 (2d Cir. Jan. 28, 2022)

The Court of Appeals held that the District Court erred in reducing attorney fees requested by plaintiff’s attorney, Binder & Binder, under 42 U.S.C. § 406(b), as a windfall. The Second Circuit, relying on its decision in Wells v. Sullivan (“Wells II”), 907 F.2d 367, 372 (2d Cir. 1990), and the Supreme Court in Gisbreath v. Barnhart, 535 U.S. 789, 808 (2002), held that to reduce a contingency fee solely on the grounds that the amount requested is a windfall, the court must be clear the fee was not earned by counsel. Here, the appeals court found that the plaintiff’s very experienced attorney represented him professionally, efficiently, and ultimately successfully in four ALJ hearings, several Appeals Council petitions, and two district court appeals. His request for a fee of $40,170, which was 25% of the plaintiff’s retroactive award, was not a windfall even though it constituted an hourly rate of $1,556.98 based on the 25.8 hours expended on representation in the federal court phases of the claims.

Colgan v. Kijakazi, 22 F.4^th 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.4^th 139 (2d Cir. July 8, 2021), cert. denied, 142 S.Ct. 1461 (Apr. 4, 2022)

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. Jan. 7, 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 Second Circuit remanded, finding the ALJ committed procedural error in failing to “explicitly” apply the factors laid out in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008), for evaluating treating source opinions.  The court reiterated its mandate, rooted both in regulation and precedent, for ALJs to follow specific procedures and adequately explain their reasoning when assigning weight to opinions, citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013), Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004)(per curiam). It found the ALJ “cherry picked” the evidence, particularly mental status exam results, without attempting to reconcile longitudinal inconsistencies in this mental health claim.  And it criticized the ALJ for relying too heavily on the opinion of the consultative examiner, citing Selian.

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 met 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 nonexertional 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 nor depression was 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. But it affirmed the District Court, holding 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.

An Interview With...

________________________________________________________________________________________________________

Karen Welch

End Note

________________________________________________________________________________________________________

Gut Feeling: Did Belgian Brewer Break the Law?