Top 25 Cases Every Representative Should KnowEighth Circuit Social Security Disability ConferenceAugust 11, 2011

Eric Schnaufer©Eric Schnauferwww.schnaufer.com

How Top Cases Selected Pro-claimant, not pro-Agency Actually used on day-to-day basis Not necessarily the most important cases Represent general principles Relevant to representation before the

Appeals Council and in federal court Possibly relevant out-of-Circuit precedent At least see also or cf. also citation Circuit cases for issues about which there

may not be clear Circuit law

Acquiescence Rulings Circuit precedent with which the Agency

expressly disagrees, 20 C.F.R. § 404.985 Futile to raise to ALJ and Appeals Council in

non-AR Circuit Repository of claimant-favorable rules (?) Never casually cite out-of-Circuit precedent

for which there is an AR Agency will vigorously contest the spread of

an AR to other Circuits Acknowledge any relevant AR

SEC v. Chenery Corp., 318 U.S. 80 (1943) “The grounds upon which an

administrative order must be judged are those upon which the record discloses that its action was based.”

Spiva v. Astrue, 628 F.3d 346 (7th Cir. 2010); Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004)

Eighth Circuit does not enforce Chenery; alternative arguments needed

Universal Camera Corp. v. NLRB, 340 U.S. 488 (1951)

“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”

Implicit requirement for fact-finder to address evidence supporting disability claim

Substantial evidence on the record as a “whole”

Authority of first and last resort Arkansas v. Oklahoma, 503 U.S. 91 (1992)

Motor Vehicle Mfrs. Ass’n v. State Farm . . ., 463 U.S. 29 (1983) An agency must evaluate important

evidence and explain its decision Parker v. Astrue, 597 F.3d 920 (7th Cir.

2010) Eighth Circuit often finds harmless an

ALJ’s failure to evaluate evidence. SeeScott ex rel. Scott v. Astrue, 529 F.3d 818 (8th Cir. 2008); but see Collins v. Astrue, – F.3d – (8th Cir. Aug. 9, 2011)

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)Due process right to pre-decision notice

of evidence upon which decision will be based

HALLEX embodies procedural due process

Due process violation must be harmful. See Martise v. Astrue, 641 F.3d 909 (8th Cir. 2011); Hurd v. Astrue, 621 F.3d 734 (8th Cir. 2010)

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999)ADA accommodation is irrelevant at step

five and is relevant at step four only in terms of past relevant work as actually performed

Clearest statement is S.G.’s amicus brief, see http://www.justice.gov/osg/briefs/index.html

Poulos v. Comm’r of Soc. Sec., 474 F.3d 88 (3d Cir. 2007); Jones v. Apfel, 174 F.3d 692(5th Cir. 1999); Eback v. Chater, 94 F.3d 410 (8th Cir. 1996)

Allord v. Barnhart, 455 F.3d 818 (7th Cir. 2006) ALJ’s error harmless if ALJ made an

alternative finding, irrespective of the possible error, providing a sufficient basis for affirmance

ALJ’s error not harmless if a reasonable ALJ who did not make the same error could find the claimant disabled

Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Spiva v. Astrue, 628 F .3d 346 (7th Cir. 2010); Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006)

Peterson v. Chater, 96 F.3d 1015 (7th Cir. 1996) If a decision includes a material

inconsistency, it is unreviewable “The two findings are irreconcilable,

requiring a remand to the agency for new findings.”

Make alternative arguments attacking findings assuming arguendo that the findings are reviewable

O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010); Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011); Newton v. Chater, 92 F.3d 688 (8th Cir. 1996)

Miles v. Chater, 84 F.3d 1397 (11th Cir. 1996) ALJ improperly relied on extra-record

evidence regarding a particular medical source’s reports in other claims

42 U.S.C. § 405(g) (closed record review) “After careful consideration of [the

claimant’s] contentions, we conclude that she is entitled to an unbiased evaluation of her claim before another ALJ. We . . . do not reach the issue of whether substantial evidence supported the final decision.”

Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565 (7th Cir. 2003)An ALJ should not “play doctor,” i.e., make a

medical judgment beyond his or her ken “[T]he ALJ seems to have succumbed to the

temptation to play doctor when she concluded [something about the claimant’s medical conditions] because no expert offered evidence to that effect here.”

Willcockson v. Astrue, 540 F.3d 878 (8th Cir. 2008); Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003); Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000); Nguyen v. Chater, 172 F.3d 31 (1st Cir. 1999).

Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996) ALJ may not discount a claim of disability based

on the absence of irrelevant findings “The [ALJ] also depreciated the gravity of

Sarchet’s fibromyalgia because of the lack of any evidence of objectively discernible symptoms, such as a swelling of the joints. Since swelling of the joints is not a symptom of fibromyalgia, its absence is no more indicative that the patient’s fibromyalgia is not disabling than the absence of headache is an indication that a patient’s prostate cancer is not advanced.”

Brosnahan v. Barnhart, 336 F.3d 671 (8th Cir. 2003).

Punzio v. Astrue, 630 F.3d 704 (7th Cir. 2011)An ALJ may not reject a medical opinion

because the claimant obtained it The regulations require a claimant to

prove disabilityEvidence of disability cannot be rejected

because it is offered to prove disabilityMoss v. Astrue, 555 F.3d 556 (7th Cir.

2009); Nguyen v. Chater, 100 F.3d 1462 (9th Cir. 1996)

Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001) Two-stage method for evaluating DAA.

Determine whether claimant disabled taking into account DAA. If disabled, disregard DAA

Correctly interprets 20 C.F.R. § 404.1535 Kangail v. Barnhart, 454 F.3d 627 (7th Cir.

2006); Brueggemann v. Barnhart, 348 F.3d 689 (8th Cir. 2003); Drapeau v. Massanari, 255 F.3d 1211 (10th Cir. 2001)

Ingram v. Chater, 107 F.3d 598 (8th Cir. 1997) Interpreting the elements of a (now-rescinded)

Listed impairment at step three Agency may not add requirements to a Listing in

litigation “Section 9.09A, by its plain language, requires only

a history of pain and limitation of motion, but does not state that a particular level of pain or limitation must be demonstrated.”

Hughes v. Shalala, 23 F.3d 957 (5th Cir. 1994); Carnes v. Sullivan, 936 F.2d 1215 (11th Cir. 1991); Pitzer v. Sullivan, 908 F.2d 502 (9th Cir. 1990)

Jones v. Chater, 65 F.3d 102 (8th Cir.1995)Claimant may establish disability as of a

remote date last insured with non-medical evidence (PTSD context)

“[P]roperly corroborated retrospective medical diagnoses can be used to establish disability onset dates.”

Newell v. Comm’r of Soc. Sec., 347 F.3d 541 (3d Cir. 2003); Loza v. Apfel, 219 F.3d 378(5th Cir. 2000); Likes v. Callahan, 112 F.3d 189 (5th Cir. 1997)

Berry v. Astrue, 622 F.3d 1228 (9th Cir. 2010)A claimant’s use of prescribed medication

prohibited by an employer may be relevant to the determination of disability

The narrow holding concerns step four, but its principle is applicable to step five

No Acquiescence Ruling — yetClaimant must develop record at hearing

Nicola v. Astrue, 480 F.3d 885 (8th Cir. 2007)Borderline intellectual functioning is a

“severe” impairment at step two “A diagnosis of borderline intellectual

functioning [is] severe when the diagnosis is supported by sufficient medical evidence.”

Hunt v. Massanari, 250 F.3d 622 (8th Cir. 2001); Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997)

McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990) 20 C.F.R. § 404.1530 has strict requirements “The Secretary must determine whether

McKnight’s conditions are disabling, within the meaning of the regulations, in the absence of treatment. If, without regard to treatment, McKnight is found to have a disabling impairment, then the Secretary must determine if there is an affordable treatment available to McKnight that would prevent the disability from being a severe impairment under the statute and regulations.”

Burnside v. Apfel, 223 F.3d 840 (8th Cir. 2000); SSR 82-59

Winfrey v. Chater, 92 F.3d 1017(10th Cir. 1996) SSR 82-62 requires three express findings for

every step-four decision: RFC, demands of PRW, and comparison of RFC and demands of PRW

“Here, the ALJ made no inquiry into, or any findings specifying, the mental demands of plaintiff ’s past relevant work, either as plaintiff actually performed the work or as it is customarily performed in the national economy.”

SSR 96-8p; SSR 82-61; Vincent v. Apfel, 264 F.3d 767 (8th Cir. 2001); Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001); Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112 (3d Cir. 2000)

Valencia v. Heckler, 751 F.2d 1082 (9th Cir. 1985) Composite / hybrid jobs at step four ALJ may not ignore significant requirement of a

past relevant job when determining the demands of that job as generally performed

“Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant’s ‘past relevant work’ according to the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of the Social Security Act.”

SSR 82-61; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 (9th Cir. 2008)

King v. Astrue, 564 F.3d 978 (8th Cir. 2009)A “severe” mental impairment at step two

requires vocational-expert testimony at step five

No Acquiescence RulingRare case that must be cited to Appeals

CouncilProve as many and as serious functional

limitations as possible

Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998) ALJ must address expressly which age

category to apply in a “borderline situation” because the Agency has the burden of production at step five

20 C.F.R. § 404.1563(b) (“We will not apply the age categories mechanically”)

But see Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068 (9th Cir. 2010); Bowie v. Comm’r of Soc. Sec., 539 F.3d 395 (6th Cir. 2008)

Skinner v. Sec’y of HHS, 902 F.2d 447 (6th Cir. 1990) Determination of education at step five Valid achievement testing, e.g., Wide

Range Achievement Test, trumps numeric grade level completed

Applies 20 C.F.R. § 404.1564(b) (“[I]f there is no other evidence to contradict it, we will use your numerical grade level to determine your educational abilities”)

Look for evidence beyond testing

Dikeman v. Halter, 245 F.3d 1182 (10th Cir. 2001) Findings and articulation requirements for

step-five decision based on transferable skills Enforces SSR 82-41 Dikeman is authority for the enforcement of

a findings requirement in any SSR Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d

1219 (9th Cir. 2009); Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002); but see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541(6th Cir. 2004)

McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) At step five, a vocational expert must provide, on

demand, the actual evidence underlying his or her testimony

“A vocational expert is ‘free to give a bottom line,’ but the data and reasoning underlying that bottom line must be ‘available on demand’ if the claimant challenges the foundation of the vocational expert’s opinions. ”

Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008); but see Liskowitz v. Astrue, 559 F.3d 736 (7th Cir. 2009); Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005)

Hulsey v. Astrue, 622 F.3d 917 (8th Cir. 2010)Claimant may prove that a vocational

expert’s testimony and/or an ALJ’s residual functional capacity assessment conflicts with the Reasoning Level of a DOT occupation

Swope v. Barnhart, 436 F.3d 1023 (8th Cir. 2006); Hackett v. Barnhart, 393 F.3d 1168 (10th Cir. 2005); but see Renfrow v. Astrue, 496 F.3d 918 (8th Cir. 2007)