Social Security Disability in the 5th Circuit

Like a Box of Chocolates

Suzanne Villalón-Hinojosawww.texasdisabilityadvocates.com

Statistics for 2010

Top Winning Issues

• Opinion Statement• Vocational Issues• Severity• Ripley (RFC must be supported by opinion

evidence)• Mental Impairments• New Evidence

Severity in the 5th Circuit

• Regulatory (404 .1521) and SSR (85-28, 96-3p, 96-4p) definition of “severe” is interpreted in the 5th Circuit as a de minimus standard.

– Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)• An impairment can be considered as not severe only if it is a slight

abnormality (having) such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.

• “in the future [we will] assume that an incorrect standard [is used] unless the correct standard is set forth by reference to this opinion or another of the same effect, or by an express statement that the construction we give…is used.”

Types of severity errors• Cite only the regulation, not Stone

– Lacy N.D.Tex. (unrepresented claimant)– Charlton N.D.Tex. (6 severe impairments=medium work)– Grant N.D.Tex.(multiple severe mental impairments=unskilled R level 1-2)

• Cite Stone but misinterpret it– the Court must look beyond the use of “magic words” and determine whether

the ALJ applied the correct severity standard. Hampton v. Bowen 785 F.2d 1308, 1311 (5th Cir. 1986)• Berry S.D.Tex .(“mild” mental impairment not included at Step 2) • Johnson S.D.Tex. (obesity)• Garcia N.D. Tex. (only actual Step 2 denial in 2010!)

• Mis-state Stone– Stone provides no allowance for a minimal interference on a

claimant's ability to work. Scroggins v. Astrue, 598 F.Supp.2d 800, 805 (N.D.Tex.2009) • Weston v. Astrue N.D. Tex.

Misstatement of Stone

• An impairment is “not severe” when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work.

• Luna N.D.Tex., Foster S.D.Tex.

• Find some impairments severe but some not severe– “either impose no significant limitations on work activity,

cleared spontaneously, or are controlled with medical management.” Padalecki v. Astrue, 688 F.Supp.2d 576 • Roberson N.D. Tex.• Foster S.D.Tex.

Mental Impairment 20 CFR § 404.1520a

• If there is a mental impairment/diagnosis– Rate functional loss in four areas using a 5 point scale

• Determine severity & meets/equal– If the mental impairment results in more than a mild functional loss

(severe) but does not result in marked or extreme loss (does not meet or equal a listing) then it must be assessed in the RFC.

• RFC 96-8p– Work-related mental activities…required…[for] work include… the abilities

to: • understand, carry out, and remember instructions; use judgment in making work-related

decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting.

– Non-severe impairments too • Williams v. Astrue N.D.Tex.

Failure to Rate Functional Loss

Four broad areas• Activities of daily living• Social • Concentration, persistence

and pace• Episodes of

decompensation

5 point scale• None• Mild• Moderate • Marked • Extreme

Melugin W.D.Tex., Biles N.D.Tex. Davila N.D.Tex.

Rating Functional loss but getting the mental RFC wrong

• Detailed/Complex instructions does not equal Reasoning Development Level 3– Otte N.D.Tex.

• Marked CPP does not equal unskilled work– Collins N.D.Tex.

• Moderate social functioning does not equal simple work – Garza W.D.Tex.

• Severe PTSD does not equal limited contact with the public– Steams N.D.Tex.

• Severe combination=moderate ADLs, social, CPP,=unskilled work with reasoning development at or below 1 or 2.– Grant N.D.Tex (This is actually a Stone denial.)

Mental retardation• Blancas W.D. Tex.

– Deficits in adaptive functioning :• listing doesn’t require severe or

significant • Just because the claimant worked

doesn’t mean she doesn’t have deficits

• No methodologty exists to evaluate deficits

• Harris S.D.Tex.– Child’s case

• ALJ focus on ADHD and no analysis of 112.05D

• Mims S.D.Tex.– ALJ morphs Step 2/Step 3

• IQ not severe because invalid and no evidence of deficits

Brown S.D.Miss.No medical opinion supports determination that claimant does not equal 12.05

an ALJ must receive expert opinion evidence on the issue of medical equivalence before ruling at Step 3. 96-6p

W.D.La. (dicta)Janitorial work , drive a car doesn’t necessarily invalidate IQ score.

Sims N.D.Miss.IQ test creates a rebuttable presumption of a fairly constant IQ throughout the life of a claimant.

Step 3• C criteria– Herrington S.D.Tex.

• Childhood Asthma• Smith E.D.La.

• Mental/DAA– Hicks W.D.La., Hamilton N.D.Miss., Gill N.D.Tex., Dyer

N.D.Tex. • Audler v. Asture, 501 F.3d 446 (5th Cir. 2007) – Even though 1.04a elements are not documented on

every examination, ALJ failed to properly consider the listing. Williams W.D.La.

– Tolliver W.D.La., House N.D.Miss.

Opinion Statements20 C.F.R. § 404.1527

• Factors when weighing medical opinions – Examining relationship;– Treatment relationship;

• Length of the treatment relationship and the frequency of examination• Nature and extent of the treatment relationship

– Supportability for the opinion in the medical findings;– Consistency with the record as a whole; and,– Specialization.

• Treating Physician Rule– If we find that a treating source's opinion…is well-supported…and is not

inconsistent with the other…evidence…we will give it controlling weight.– The opinions may be assigned little or no weight when good cause is shown. – Factors analysis not required if there is controverting treating or examining

physician evidence.• Newton v. Apfel, 209 F.3d 448 (5th.Cir. 2000)

Opinion Statement Errors Medical source statements may actually comprise separate medical

opinions….and it may be necessary to decide whether to adopt or not adopt each one. 96-5p

• No controlling weight & no factors to TS– Walker S.D.Tex, Kinsel S.D.Tex. Johnson N.D.Tex., Hayes N.D.Tex.,

Lewis N.D.Tex., Crockett N.D.Tex. Morgan N.D.Tex. , Gadson N.D.Tex.

• SAMC vs. treating source/examining source– Sonnier, KTS W.D.La., Prowell N.D.Miss., Munoz N.D.Tex.

• Recontact TD, Interrogatories– McLeland, Ross W.D.La., Bobo N.D.Miss., Bagwell N.D.Miss., Rodriguez

W.D.Tex.

• Testifying expert vs. MSS– Edwards S.D.Tex.

• “other sources”– Wright N.D.Miss. (nurse practitioner)

Ripley

• The ALJ is responsible for determining an applicant's residual functional capacity.

• However, we conclude that the ALJ's determination was not supported by substantial evidence. – The record includes a vast amount of medical evidence establishing that

Ripley has a problem with his back. – What the record does not clearly establish is the effect Ripley's condition had

on his ability to work. – The only evidence regarding Ripley's ability to work came from Ripley's own

testimony. – Therefore, on remand, we instruct the ALJ to obtain a report from a treating

physician regarding the effects of Ripley's back condition upon his ability to work• Ripley v. Chater, 67 F.3dd 552 (5th Cir. 1995)

Ripley Revolution• ALJ must derive his RFC from medical experts.

– Jones N.D.Tex.

• Descriptions of medical conditions insufficient to support RFC.– Moreno N.D.Tex.

• Medical reports not based on personal observation deserve little weight– Chandler N.D.Miss.

• DE opinion does not support RFC– Cook, Guillot W.D.La.

• ALJ rejects MSS and formulates his/her own RFC.– Williams v. Astrure 355 Fed.Appx. 828 (5th Cir. 2009)

• Record lacks “positive statement” from treating source to support RFC GDC W.D.La. (8/10)

• Courts have read Williams as requiring a “positive statement” or “positive evidence” from a medical source to support ALJ RFC Brown M.D.La. (11/10)

The impact of WilliamsBrown 2010 WL 4825391 M.D. La.

• Since the time that the decision in Williams was handed down, the Court has found no fewer than fourteen cases which have been remanded or recommended to be remanded to the Commissioner based upon its holding.

• The Court was unable to find a single case in which Williams was cited but a remand was not ordered or recommended.

Cases citing Williams in 2010• GDC, • KDH, • Lincecum, • Esters, • Coleman, • Wright, • Slatten, • Bearden, • Moreno (N.D.Tex.), • Hicks (W.D.Va), • Williams, • Guillot, • Cook, • Bailey

When is a VE required

• Reese W.D. La.– Non-exertional impairment of incontinence (due

to prostate cancer)

• Pedigo S.D.Tex., Torres S.D.Tex.– Step 2 mental impairment

Step 4• 3 part test explained– Scott WL 2287567 N.D.Miss.

• Factual findings required– Moore W.D.La.

• Decision based on VE testimony but no VE testimony in the record– Piccolella N.D.Tex.

• Transferability– Perez N.D.Tex., Rivera N.D.Tex.

VE/DOT conflictWittling down the hypo

• Scott W.L. 2243286 N.S.Miss.– VE misstakes: skill level wrong, incorrect DOT number

• Snyder W.D.La– One job outside of RFC, other two in question when a limitation is left

out of the hypothetical question

• Jackson N.D.Miss– RFC precludes reaching, jobs require frequent reaching

Defective HypotheticalBolling v. Shalala, 36 F.3d 431 (5th Cir. 1994)

• Classic Scenerio– ALJ asks VE hypo that results in jobs, ALJ asks VE hypo that precludes

work, ALJ denies based on 1st hypo but puts 2nd hypo in the decision JFC W.D.La.

• Decision states RFC is supposed by opinion in evidence but that opinion is different.– Slatten, W.D.La. , Collins N.D.Tex.

• RFC excludes a severe impairment– Brown W.D.La. (glaucoma)

• RFC is not exactly the same as the Hypothetical to the VE– Hardy N.D.Miss. Ellis N.D.Tex., Hooker N.D.Tex.

New EvidenceHigginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005)

• Opinion evidence– Rodriguez W.D.Tex., Brown N.D.Tex., Lee N.D.Tex.

• Medical– Pinson N.D.Tex. (relapses of MS shows condition waxes and wane)– Donjuan N.D.Tex. (not in record but fax transmittal supplied to court)

• IQ Scores submitted to AC – Sims N.D.Miss.

• VA rating – Wright W.D.La.

• Subsequent awards– Adams N.D.Miss., Breaux E.D.La.

Multiple issues• Green S.D.Tex.

– Failure to seek clarification from TS, side effects of meds/combined effects of impairments/sustainability

• Cobbs S.D.Tex.– Defective hypo/credibility/weight to ME/fatigue

• Marigny S.D.Tex.

– Side effects of meds/Use of ME• James S.D.Tex.

– Step 3/Pick & Choose/credibility/defective hypo

• Frazier S.D.Tex.– Retrospective diagnosis/duty to develop/defective hypo

• Coleman W.D.La.– RFC/Compliance w/treatment/composite hypo