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HALLEX I-3-301

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-301 APPEALS COUNCIL JURISDICTION

Citations: > 20 CFR 404.967, 404.969, 404.970, 410.662, 416.1467, 416.1469, and 416.1470 > 42 CFR 405.724, 417.261, 473.46, and 498.83

The Appeals Council may review a case:

- when a claimant or representative files a request for review of an ALJ decision or dismissal, or

- on its own motion. The Appeals Council must mail the own motion review notice within 60 days after the date of an ALJ's decision or order of dismissal. See section > I-3-120 A. for an exception in First Circuit cases.

A. Bases for Appeals Council Review

The Appeals Council may assume jurisdiction to review a case for any reason. It will review a case if:

- there appears to be an abuse of discretion by the ALJ;

- there is an error of law;

- the action, findings or conclusions of the ALJ are not supported by substantial evidence; or

- there is a broad policy or procedural issue that may affect the general public interest.

In addition, if new and material evidence is submitted, the Appeals Council shall evaluate the entire record. It will assume jurisdiction if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record. See > I-3-306 regarding new and material evidence.

B. Appeals Council Actions

The Appeals Council may deny or dismiss a claimant's request for review. After assuming jurisdiction on its own motion or by granting a claimant's request for review, the Appeals Council may:

1. Issue a decision which affirms, modifies or reverses the hearing decision;

2. Remand the case to an ALJ to obtain additional evidence, to conduct further proceedings and to issue a new decision; or

3. Dismiss the claimant's request for hearing for any reason for which the ALJ could have dismissed the request for hearing.

C. Cases Involving Participation in the Medicare Program (42 CFR Part 498)

If the affected party requests the Appeals Council to review the ALJ's decision or dismissal, the Council must either grant the party's request for review or dismiss the request. However, if the Health Care Financing Administration or the Office of the Inspector General requests the Appeals Council to review the ALJ's decision or dismissal, the Council may dismiss, deny or grant the request.



HALLEX I-3-302

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-302 ABUSE OF DISCRETION

Black's Law Dictionary defines abuse of discretion as a failure to exercise, or a misuse of, a sound, reasonable, and legal power or privilege. When a judgment or conclusion is involved, abuse of discretion means acting in a manner that is imprudent, incautious, unwise, against precedent, and clearly against logic. In the context of the ALJ's actions, abuse of discretion occurs when the action taken is clearly not justified under the particular circumstances of the case.

The following are examples of abuses of discretion by an ALJ:

- The ALJ did not grant a request for postponement of the scheduled hearing even though the claimant's attending physician contacted the ALJ and confirmed that the claimant's current health would not permit attendance at the hearing.

- The ALJ refused to grant a claimant's request for additional time to submit a hospital report even though the hospital's custodian of records submitted a statement attesting to the need for additional time because of fire damage in the records department.



HALLEX I-3-303

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-303 ERROR OF LAW

The following represent broad categories of errors of law:

- Misinterpretation of law, regulations, or Social Security Rulings.

- Misapplication of the law, regulations, or rulings to the facts (e.g., the ALJ established a period of disability beginning after the date the claimant last met the special earnings requirements).

- Failure to consider pertinent provisions of law, regulations, or rulings.

- Failure to make a finding of fact, or to give reasons for making a finding of fact, on an issue properly before the ALJ.

- A procedural error (more than technical) which affects due process (e.g., improper notice of hearing, failure to notify the claimant of the right to request cross-examination).

- Failure to rule on an objection raised at the hearing (e.g., an objection to the admission of certain exhibits).



HALLEX I-3-304

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-304 ALJ'S ACTION, FINDINGS OR CONCLUSIONS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

A. General

Under the provisions of sections 404.970 and 416.1470 of the Regulations, if the decision of an ALJ is supported by "substantial evidence," the Appeals Council will deny the request for review or decline own motion review on this basis even though the Council might reach a different conclusion if it considered the case de novo under the "weight of the evidence" rule. The Appeals Council applies the same "substantial evidence" standard of review as the United States district courts.

B. Weight of the Evidence

"Weight of the evidence" is defined as the balance or preponderance of evidence; the inclination of the greater amount of credible evidence to support one side of the issue rather than the other.

C. Substantial Evidence

"Substantial evidence" is defined as that evidence which, although less than a preponderance, nevertheless is sufficient to convince a reasonable mind of the credibility of a position taken on an issue, when no evidence on the opposing side clearly compels another finding or conclusion. Therefore, the "substantial evidence" rule requires less in support of a finding or conclusion than the "weight of the evidence" rule. Evidence on one side of an issue need not possess greater weight or be more convincing and credible to be "substantial."

D. Applying Substantial Evidence Rule

To determine whether an ALJ's decision is supported by substantial evidence, the analyst first must study each finding made to resolve an issue in the case and the evidence the ALJ cites to support the finding. The analyst must then study the record as a whole (i.e., the evidence cited by the ALJ in support of his or her findings and all other evidence of record) to determine whether the ALJ reached a conclusion consistent with those findings.

The Appeals Council will not substitute its judgment for that of the ALJ. The fact that the ALJ could have made different findings based on the evidence of record is irrelevant. When the ALJ clearly misinterpreted or incorrectly evaluated evidence upon which the decision was based, the decision is not supported by substantial evidence.

If the evidence cited by the ALJ is not substantial, but other substantial evidence in the record supports the ALJ's conclusion, the Appeals Council will grant review for corrective action. If the record is otherwise complete, the Council will issue a decision. However, where the record is incomplete or credibility and/or subjective complaints are at issue, the Council will remand the case to an ALJ for further proceedings. The Council generally will not review a favorable decision on its own motion if the record contains substantial evidence to support the ALJ's ultimate conclusion.



HALLEX I-3-305

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-305 BROAD POLICY OR PROCEDURAL ISSUE

In studying a case, the analyst must be alert to the possible existence of significant questions of law, policy or procedure. When an analyst decides to recommend that the Appeals Council review an ALJ's decision under this category, the analyst will route the recommendation through the branch chief and assistant deputy director or RSI, HI, SSI staff director.



HALLEX I-3-306

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-306 NEW AND MATERIAL EVIDENCE

A. General

In deciding whether to review a case, the Appeals Council will consider any new and material evidence received. When a claimant or representative submits additional evidence, it must be both new and material to warrant the Appeals Council's consideration. Evidence is new when it is not duplicative, cumulative or repetitive. It is material when it affects the ALJ's findings or conclusions and relates to the time period specified in section B. below. Black's Law Dictionary defines material evidence as "such as is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case." When new and material evidence has been submitted with a request for review, the analyst will apply the weight of the evidence rule instead of the substantial evidence rule in deciding whether to recommend review action to the Appeals Council.

B. Closed Record

The Appeals Council will consider the additional evidence only if it relates to the period on or before the date of the ALJ's decision.

The "closed record" regulations at > 20 CFR 404.976(b) and 416.1476(b) apply to:

1. Title II claims based on an application filed after June 30, 1980.

2. Title XVI claims based on an application filed after April 30, 1986.

3. Title II claims not based on an application (e.g., cessation, termination cases), effective with requests for review filed on or after February 9, 1987.

The closed record regulations do not apply to title XVI claims not based on an application (cessation, termination).

NOTE: For title II claims, when the date last insured (disability insurance benefits), the last day of the prescribed period (widow's insurance benefits based on disability), or the date the claimant attained age 22 (child's insurance benefits based on disability) predates the date of the hearing decision, evidence which pertains to the period after the earlier date is not material to the case.



HALLEX I-3-307

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

September 25, 1995

Current through June 1997

I-3-307 OTHER BASES FOR APPEALS COUNCIL REVIEW (REVISED 09/95)

In evaluating a case, the analyst must ensure that the ALJ decision properly addresses those issues identified by the circuit courts as significant. If the Appeals Council finds a basis under the regulatory criteria for granting a request for review, a Council decision will discuss any significant circuit issues and include the excerpt from the circuit court decision as it appears in section > I-3-390, Exhibit 1. The rationale must demonstrate that the Council has properly considered the issue according to circuit law. In cases the Appeals Council proposes to remand, if the hearing decision did not adequately respond to issues which are of particular concern in that circuit, the remand order must so specify and include a verbatim recitation of the relevant excerpt from the applicable circuit court decision. If the case contains one of the issues listed below, refer to section > I-3-390, Exhibit 1.

1st Circuit--Pain

2nd Circuit--Rationale for Residual Functional Capacity

Special Duty Regarding Unrepresented Claimant

NOTE: Adjudicators of disability claims of New York State residents involving medical or vocational issues are reminded that they are required to apply the controlling Second Circuit holdings set forth in the Manual of Second Circuit Disability Decisions attached to the instructions for implementing the Stieberger court-approved settlement.

3rd Circuit--Alcoholism

Treating Physician's Opinion; Significant

Nonexertional Limitations

4th Circuit--Pain

Significant Nonexertional Limitations

Lack of End Organ Damage

5th Circuit--Significant Nonexertional Limitations

Failure to Follow Prescribed Treatment

Credibility

Nonsevere Impairment

6th Circuit--Sedentary Work, Alternate Sitting and Standing

Environmental Restrictions

Claimant Close to Retirement Age, Highly Marketable Skills

7th Circuit--Claimant Close to Retirement Age, Highly Marketable Skills

Evidence Required in Cases Involving Nonexertional Limitations

Rationale for Rejecting Sources of Evidence

8th Circuit--Credibility of Subjective Complaints

Credibility of Subjective Testimony of Family or Others

Nonexertional Limitation; Use of Medical-Vocational Guidelines

9th Circuit--Alcoholism

10th Circuit--Pain

Nonexertional Limitations

11th Circuit--Pain

DC Circuit--Nonexertional Limitations

Special Duty Regarding Unrepresented Claimant



HALLEX I-3-309

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

June 30, 1994

Current through June 1997

I-3-309 RES JUDICATA (REVISED 01/93)

Res Judicata: Simply stated, res judicata means that once a claim is decided it does not need to be decided again.

A. The regulations at > 20 CFR 404.957(c)(1) and 416.1457(c)(1) provide that res judicata is present when all three of the conditions below exist:

1. There has been a previous determination or decision under the same subpart with respect to the same party;

2. The previous determination or decision was based on the same facts and on the same issue(s); and

3. The previous determination or decision has become final by either administrative or judicial action.

B. The regulations state that the ALJ may dismiss on the basis of res judicata. Although this indicates that such dismissal is discretionary, when the requisite conditions are met the doctrine of res judicata should be applied. Therefore, if the ALJ issued a decision on the merits but should have dismissed on the basis of res judicata, the Appeals Council will assume jurisdiction, vacate the hearing decision and dismiss the request for hearing.

C. It is possible to dismiss one or more issues on the basis of res judicata, and still render a decision on other issues.

D. Res judicata is not applicable in the following situations:

1. Mental impairment cases when the prior determination or decision was issued on or before August 28, 1985 (regardless of how long ago the prior determination/decision was issued or when insured status requirements were last met);

2. The ALJ found that the claimant had multiple not-severe impairments, and the prior determination or decision was issued on or before November 30, 1984;

3. The ALJ found that the claimant had a non-severe impairment, and the prior determination or decision was issued before December 24, 1985;

4. Evaluation of any (physical) Listing which has been revised so that the current Listing is less restrictive and the prior determination or decision was issued on or before January 6, 1986; and

5. No prior determination or decision was ever made under the medical-vocational guidelines (grid regulations) that became effective February 26, 1979, and the prior denial was based on the ability to perform other than past relevant work.

E. Recommend remand when res judicata was improperly applied to dismiss the request for hearing. See Appeals Text Guide 6-20-12.

F. The following policy applies when a pro se claimant lacked the mental competence to pursue further administrative appeal:

1. General Policy Effective Nationwide

Whenever an ALJ or the Appeals Council considers the application of administrative finality or res judicata to a determination that was made on a prior application and became final without a hearing before an ALJ, and there is prima facie evidence that a claimant who was pro se when the prior application was adjudicated lacked the mental competence to understand the right and obligation to pursue an administrative appeal, the ALJ or the Appeals Council must address and resolve in the current decision the issue of whether the claimant lacked the mental competence to pursue his appeal. The claimant bears the burden of producing evidence of incompetency. If the ALJ or the Council finds the prima facie evidence to be unrefuted, they shall find that "good cause" exists for reopening the final determination on the prior application. In that instance, the doctrines of administrative finality and res judicata shall not apply.

2. Additional Requirement in the Fourth Circuit in accordance with Young v. Bowen, > 858 F.2d 951 (4th Cir.1988), > 23 S.S.R.S. 302

An adjudicator may not decline to find good cause to reopen without first affording the claimant a separate evidentiary hearing on the incompetence issue. At the OHA level, therefore, a case may not be dismissed or reopening refused without a separate evidentiary hearing on the record on the issue of whether the claimant was mentally incompetent at the time of the earlier application. In cases which do go on to an evidentiary hearing, the hearing must be on the record and the issue must be addressed in the decision.

3. Requirements Not Met

If the above requirements are not met, the Appeals Council must remand the case to an ALJ.



HALLEX I-3-390

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Appeals Council Jurisdiction

Chapter: I-3-300

September 25, 1995

Current through June 1997

I-3-390 EXHIBITS (REVISED 09/95)

EXHIBIT 1

CIRCUIT COURT CASES FOR CITATION

1st Circuit Issue:Pain

Reference: SSR > 88-13

Avery v. Sec. of Health and Human Services, > 797 F.2d 19, 22-23, 14 S.S.R.S. 301, 304-05, CCH 16,883 (1st Cir. 1986).

The instructions specifically contemplate a possible finding of disability in a case "where the degree of pain alleged is significantly greater than that which can be reasonably anticipated based on the objective physical findings...." In such cases a further exploration of other information is "consistent with recent court decisions, as well as with the statutory language [requiring consideration of statements of claimant or his physician consistent with medical findings]." Specifically, when there is a claim of pain not supported by objective findings, the adjudicator is to "obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge." Further, "it is essential to investigate all avenues presented that relate to subjective complaints ...."

2nd Circuit:

NOTE: Adjudicators of disability claims of New York State residents involving medical or vocational issues are reminded that they are required to apply the controlling Second Circuit holdings set forth in the Manual of Second Circuit Disability Decisions attached to the instructions for implementing the Stieberger court-approved settlement.

2nd Circuit Issue: Rationale for Residual Functional Capacity

Reference: SSR > 86-8 (partially superseded by SSR > 91-7c)

Ferraris v. Secretary of Health and Human Services, > 728 F.2d 582, 585 and 587, > 4 S.S.R.S. 192, 195 and 197, CCH 15,169 (2d Cir. 1984).

... in making any determination as to a claimant's disability, the Secretary must explain what physical functions the claimant is capable of performing.

* * * *

... the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.

2nd Circuit Issue: Special Duty Regarding Unrepresented Claimant

Echevarria v. Secretary of Health and Human Services, > 685 F.2d 751, 755, CCH 14,186 (2d Cir. 1982).

Where, as here, the claimant is unrepresented by counsel, the ALJ is under a heightened duty "to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." A reviewing court must determine whether the ALJ "adequately protect[ed] the rights of [a] pro se litigant by ensuring that all of the relevant facts [are] sufficiently developed and considered."

3rd Circuit Issue: Alcoholism

Reference: SSR > 82-60

Purter v. Heckler, > 771 F.2d 682, 697-98, 11 S.S.R.S. 10, 25-26, CCH 16,265 (3d Cir. 1985). See McShea v. Schweiker, > 700 F.2d 117, 1 S.S.R.S. 191, CCH 14,509 (3d Cir. 1983).

As stated by the Fourth Circuit in Hicks v. Califano, > 600 F.2d 1048, 1051 (4th Cir. 1979, cited in McShea, > 700 F.2d at 119), the relevant inquiry where there is evidence of

alcoholism is not whether the claimant should be able to control his drinking problem or that he says that he can control it, but rather "whether the claimant is addicted to alcohol and, as a consequence, has lost the ability to control its use." The issue of alcoholism, and its interrelationship with other impairments, must then be evaluated to determine whether the claimant can engage in substantial gainful activity.

3rd Circuit Issue: Treating Physician's Opinion; Significant Nonexertional Limitations

Reference: SSR > 83-14

Gilliland v. Heckler, > 786 F.2d 178, 183, 13 S.S.R.S. 122, 126, CCH 16,702 (3d Cir. 1986).

We have previously held that an Administrative Law Judge may not simply ignore the opinion of a competent, informed, treating physician... And a finding of residual functional capacity for work which conflicts with such an opinion and is made without analytical comment or record reference to contradictory evidence is not supported by substantial evidence... Moreover, we have also held that where substantial nonexertional impairments like memory loss are concerned, the Secretary cannot rebut a prima facie case without competent evidence that the impairment is consistent with the requirements of specific jobs in the national economy.


4th Circuit Issue: Pain

Reference: SSR > 90-1p

Foster v. Heckler, > 780 F.2d 1125, 1128, 12 S.S.R.S. 128, 131, CCH 16,552 (4th Cir. 1986). See Hyatt v. Heckler, > 807 F.2d 376 (4th Cir. 1986), > 16 S.S.R.S. 52, CCH 17,092.

This court has held that pain itself can be disabling, and it is incumbent on the ALJ to evaluate the effect of pain on a claimant's ability to function. [Citing Myers v. Califano, > 611 F.2d 980.] We read the Disability Reform Act standard

for evaluating pain to be consistent with prior case law of this circuit. Thus, while there must be objective medical evidence of some condition that could reasonably produce pain, there need not be objective evidence of the pain itself.

4th Circuit Issue: Significant Nonexertional Limitations

Reference: SSR > 83-14

Grant v. Schweiker, > 699 F.2d 189, 192, 1 S.S.R.S. 163, 166, CCH 14,438 (4th Cir. 1983).

To the extent that nonexertional impairments further limit the range of jobs available to the claimant, the grids may not be relied upon to demonstrate the availability of alternative work activities. Instead, in such cases the Secretary must produce a vocational expert to testify that the particular claimant retains the ability to perform specific jobs which exist in the national economy.

4th Circuit Issue: Lack of End Organ Damage

Hicks v. Califano, > 600 F.2d 1048, CCH 16,268 (4th Cir. 1979).

Nothing in the Social Security Act permits rejection of a disability claim simply because the claimant has not experienced end organ damage.

5th Circuit Issue: Significant Nonexertional Limitations

Reference: SSR > 83-14

Fraga v. Bowen, > 810 F.2d 1296, 1304, 16 S.S.R.S. 245, 253, CCH 17,195 (5th Cir. 1987).

When the characteristics of the claimant correspond to criteria in the Medical-Vocational Guidelines of the regulations, and the claimant either suffers only from exertional impairments or his non-exertional impairments do not significantly affect his residual functional capacity, the ALJ may rely exclusively on the Guidelines in determining whether there is other work available that the claimant can perform. Otherwise, the ALJ must rely upon expert vocational testimony or other similar evidence to establish that such jobs exist.

5th Circuit Issue: Significant Nonexertional Limitations

Reference: SSR > 83-14

Fields v. Bowen, > 805 F.2d 1168, 1170, 16 S.S.R.S. 3, 5, (5th Cir. 1986).

This Circuit has consistently held that once the ALJ determines that a claimant suffers from a nonexertional impairment that prevents her from performing her past work and the full range of other available work, the Secretary must produce "expert vocational testimony or other similar evidence" to establish that jobs exist in the national economy that the applicant can perform.... This Circuit has never defined the term "other similar evidence." Nevertheless, the Dictionary of Occupational Titles is not "similar evidence" and thus cannot satisfy the Secretary's burden.

5th Circuit Issue: Failure to Follow Prescribed Treatment

Reference: SSR > 82-59

Lovelace v. Bowen, > 813 F.2d 55, 59 , > 17 S.S.R.S. 26, 30, CCH 17,224 (5th Cir. 1987); Taylor v. Bowen, > 782 F.2d 1294, 12 S.S.R.S. 230, CCH 16,662 (5th Cir. 1986).

The Court in Lovelace quoted from Taylor v. Bowen, > 782 F.2d 1294 (5th Cir. 1986), reaffirming the Court's position that:

A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling. If, however, the claimant cannot afford the prescribed treatment or medicine, and can find no way to obtain it, "the condition that is disabling in fact continues to be disabling in law."

Further, the Court notes the Fourth, Eighth, and Tenth Circuits have also made similar findings and to a poor person, a medicine that he cannot afford to buy does not exist.

5th Circuit Issue: Credibility

Reference: SSR > 87-19c

Scharlow v. Schweiker, > 655 F.2d 645, 648 (5th Cir. 1981).

..., if the claimant could have prevailed if all of the claimant's evidence had been believed, the trier of fact has a duty to pass on the issue of the truth and reliability of complaints of subjective pain or the medical significance of such complaints once found credible.... Failure to indicate the credibility choices made and the basis for those choices in resolving the crucial subsidiary fact of truthfulness of subjective symptoms and complaints requires reversal and remand.


5th Circuit Issue: Nonsevere Impairment

Reference: SSR 88-3

Stone v. Heckler, > 752 F.2d 1099, 1106, 8 S.S.R.S. 223, 230, CCH 15,880 (5th Cir. 1985).

In view of both the Secretary's position in this case and our recent experience with cases where the disposition has been on the basis of nonseverity, we will in the future assume that the ALJ and Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this opinion or another of the same effect, or by express statement that the construction we give to > 20 C.F.R. 404.1520(c) (1984) is used.

6th Circuit Issue: Sedentary Work, Alternate Sitting and Standing

Reference: SSR > 83-12

Howse v. Heckler, > 782 F.2d 626, 628, 12 S.S.R.S. 206, 208, CCH 16,605 (6th Cir. 1986).

This circuit has held that sedentary work as defined by the Secretary's regulations contemplates substantial sitting as well as some standing and walking, and that alternating between sitting and standing, as Howse would have to do to accommodate his impairments, may not be within the definition of sedentary work. Wages v. Secretary, > 755 F.2d 495, 498 (6th Cir. 1985).

6th Circuit Issue: Environmental Restrictions

Reference: SSR > 83-14, SSR > 85-15

Shelman v. Heckler, > 821 F.2d 316, 321-322, 18 S.S.R.S. 88, 93-94, CCH 17,404 (6th Cir. 1987).

The ALJ found that plaintiff's residual functional capacity for sedentary work is limited to "settings relatively free of atmospheric pollutants and irritants," and the record admits of no evidence to the contrary. This initial finding confutes the ALJ's later conclusion that plaintiff's nonexertional limitations do not significantly limit his capacity for sedentary work.

. . . The ALJ's finding that a significant number of unskilled, sedentary jobs would not be ruled out by plaintiff's nonexertional limitations, which was made without citation of any authoritative references or any other evidence, was clearly in error.

6th Circuit Issue: Claimant Close to Retirement Age, Highly Marketable Skills

Varley v. Secretary of Health and Human Services, > 820 F.2d 777, 781-782, 18 S.S.R.S. 52, 56-57, CCH 17,370 (6th Cir. 1987).

In our view, the regulation sets forth a straight forward command that before it can be determined that a claimant over sixty years of age, who acquired skills while performing medium work, is able to transfer those skills to sedentary work, it must first be shown that the skills are highly marketable. This proposition is intuitively reasonable, in that it reflects the reality that older persons, who do not possess highly marketable skills, will find it difficult to obtain any employment.

7th Circuit Issue: Claimant Close to Retirement Age, Highly Marketable Skills

Tom v. Heckler, > 779 F.2d 1250, 1256, 12 S.S.R.S. 81, 87, CCH 16,541 (7th Cir. 1985).

Absent a finding that a claimant who is close to retirement age has acquired work skills which are "highly marketable," the regulations do not permit a finding of transferability.

7th Circuit Issue: Evidence Required in Cases Involving Nonexertional Limitations

Warmoth v. Bowen, > 798 F.2d 1109, 1112, 14 S.S.R.S. 417, 420, CCH 16,909 (7th Cir. 1986).

While a vocational expert's specialized knowledge undoubtedly would be helpful ... this is not to say that testimony from such an expert is required in ... every other case involving a nonexertional impairment, see > 20 C.F.R. 404.1566(e)(1985) . . . rather, we only require that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.

7th Circuit Issue: Rationale for Rejecting Sources of Evidence

Zblewski v. Schweiker, > 732 F.2d 75, 79, 4 S.S.R.S. 345, 349, CCH 15,251 (7th Cir. 1984).

It is more than merely "helpful" for the ALJ to articulate reasons (e.g., lack of credibility) for crediting or rejecting particular sources of evidence. It is absolutely essential for meaningful appellate review.

... a minimal level of articulation of the ALJ's assessment of the evidence is required in cases in which considerable evidence is presented to counter the agency's position.


8th Circuit Issue: Credibility of Subjective Complaints

Reference: SSR > 87-19c

Polaski v. Heckler, > 739 F.2d 1320, 1322, 6 S.S.R.S. 123, 125, CCH 15,518 (8th Cir. 1984).

The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:

1. the claimant's daily activities;

2. the duration, frequency and intensity of pain;

3. precipitating and aggravating factors;

4. dosage, effectiveness and side effects of medication;

5. functional restrictions.

The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.

8th Circuit Issue: Credibility of Subjective Testimony of Family or Others

Smith v. Heckler, > 735 F.2d 312, 317, 5 S.S.R.S. 278, 283, CCH 15,339 (8th Cir. 1984).

We have frequently criticized the failure of the Secretary to consider subjective testimony of the family and others. We have held that a failure to make credibility determinations concerning such evidence requires a reversal and remand.... If the ALJ is to reject such testimony, it must be specifically discussed and credibility determinations expressed.

8th Circuit Issue: Nonexertional Limitation; Use of Medical-Vocational Guidelines

Reference: SSR > 83-14

Thompson v. Bowen, > 850 F.2d 346, 349 (8th Cir. 1988), > 22 S.S.R.S. 274, 277.

In Tucker v. Heckler, > 776 F.2d 793 (8th Cir. 1985) this court stated:

If, however, the claimant suffers from a combination of exertional and nonexertional impairments and the Guidelines indicate that he or she is not entitled to a finding of disability based solely on exertional impairments, the ALJ must then consider the extent to which the claimant's work capability is further diminished by his or her nonexertional impairments. . . . Where the claimant's relevant characteristics differ in any material respect from those characteristics contemplated by the Guidelines, the Guidelines may not be applied. . . . Instead, the Secretary must produce expert vocational testimony or other similar evidence to establish that there are jobs available in the national economy for a person with the claimant's characteristics. > Id. at 795-96 (citations omitted).

... Stated briefly, under the principles announced in McCoy and Tucker the law in this circuit provides that an ALJ may use the Guidelines even though there is a nonexertional impairment if the ALJ finds, and the record supports the finding, that the nonexertional impairment does not diminish the claimant's residual functional capacity to perform the full range of activities listed in the Guidelines.

9th Circuit Issue: Alcoholism

Reference: SSR > 82-60

Cooper v. Bowen, > 815 F.2d 557, 560, 561, 17 S.S.R.S. 312, 315, 316, CCH 17,353 (9th Cir. 1987).

We therefore adopt the view of the Third and Fourth Circuits that the Secretary must adequately inquire whether a diagnosed alcoholic can control his or her drinking.... The Secretary, or the ALJ whose decision the Secretary adopts, must make a specific finding on the claimant's ability to control his or her drinking and its disabling effect. ... The appropriate inquiry will not be whether Cooper should be able to control his alcohol abuse or says that he can or cannot control it, but whether he "is addicted to alcohol and, as a consequence, has lost the ability to control its use,"... and whether its use precludes his obtaining and maintaining employment.

10th Circuit Issue: Pain

Reference: SSR > 88-13

Luna v. Bowen, > 834 F.2d 161, 165, 19 S.S.R.S. 642, 646, CCH 17,670 (10th Cir. 1987).

Because one cannot conclusively prove the severity of an individual's pain through medical test results, however, Congress stopped short of requiring medical evidence of severity. Rather, the decision maker must consider all the evidence presented that could reasonably produce the pain alleged once a claimant demonstrates a pain-causing impairment.


10th Circuit Issue: Nonexertional Limitations

Reference: SSR > 83-14

Channel v. Heckler, > 747 F.2d 577, 582, 7 S.S.R.S. 192, 197, CCH 15,598 (10th Cir. 1984).

Absent a specific finding, supported by substantial evidence, that despite his nonexertional impairments, Channel could perform a full range of sedentary work on a sustained basis, it was improper for the ALJ conclusively to apply the grids in determining that Channel was not disabled.

11th Circuit Issue: Pain

Reference: SSR > 88-13

Hale v. Bowen, > 831 F.2d 1007, 1012, 19 S.S.R.S. 396, 401, CCH 17,659 (11th Cir. 1987).

It is established in this circuit that if the Secretary fails to articulate reasons for refusing to credit a claimant's subjective pain testimony, then the Secretary has, as a matter of law, accepted that testimony as true.... Implicit in this rule is the requirement that such articulation of reasons by the Secretary be supported by substantial evidence.

DC Circuit Issue: Nonexertional Limitations

Reference: SSR > 83-14

Smith v. Bowen, > 826 F.2d 1120, 1122, 18 S.S.R.S. 734, 736, CCH 17,503 (D.C. Cir. 1987).

The regulations provide that if the claimant has exertional and nonexertional limitations and is not disabled based on strength limitations alone, then the grids may "provide a framework for consideration of how much the individual's work capacity is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations." 20 C.F.R. pt. 404, subpt. P, app. 2, section 200.00(e)(2). " [F]ull consideration must be given to all of the relevant facts."

When the claimant's nonexertional limitations require that the grids be used only as a "framework," the Secretary must introduce expert vocational testimony or other evidence to prove that a significant number of jobs are available for the claimant.

DC Circuit Issue: Special Duty Regarding Unrepresented Claimant

Narrol v. Heckler, > 727 F.2d 1303, 1306 , > 4 S.S.R.S. 159, 162, CCH 15,152 (D.C. Cir. 1984).

The ALJ had an affirmative duty "to investigate fully all matters in issue, and to develop the comprehensive record required for a fair determination .... This duty to probe and explore scrupulously all the relevant facts is particularly strict when the claimant, as here, is not represented by an attorney."


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