Sweet or Crummy: SSR 16-3p Out of the Box. Joseph Basque, Esq. Timothy Tripp, Esq.

Transcription

1 Sweet or Crummy: SSR 16-3p Out of the Box Joseph Basque, Esq. Timothy Tripp, Esq. S

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3 Sweet or Crummy: SSR 16-3p Out of the Box Section S Sweet or Crummy: SSR 16-3p Out of the Box Joseph Basque, Esq. Timothy Tripp, Esq. 569

4 Section S National Social Security Disability Law Conference Sweet or Crummy: SSR 16-3p out of the Box NOSSCR DISABILITY LAW CONFERENCE Phoenix, AZ September 13-16, 2017 Joe Basque & Timothy Tripp August 14,

5 Sweet or Crummy: SSR 16-3p Out of the Box Section S SSR 16-3p EvaluaXons of Symptoms in Disability Claims (effect ) No More SSR 96-7p No more use of the term credibility Clarify that subjecxve symptom evaluaxon is not an examinaxon of an individual s character and AdministraXve Conference of the United States ( ACUS ) The SSA 2 Step Two-step process for evaluaxon an individual s symptoms 571

6 Section S National Social Security Disability Law Conference STEP 1 1. MDI 2. Reasonably be expected to produce the alleged symptoms 3. Symptoms (pain, weakness, )will not be found to affect the ability to perform work-related acxvixes unless medical signs or laboratory findings show an MDI is present. 4. Signs anatomical, physiologic, or psychological abnormalixes established by medically acceptable clinical diagnosxc techniques that can be observed apart from an individual s symptoms STEP 1 6. Laboratory findings are anatomical, physiological, or psychological phenomena, which can be shown by the use of medically acceptable laboratory diagnosxc techniques.405(g) Appeal/Review in Federal District Court 7. We must have objecxve medical evidence from an acceptable medical source to establish the existence of an MDI which could reasonably be expected to produce an individual s alleged symptoms. STEP 2 Evaluate the Intensity and Persistence of Symptoms (e.g., pain), and Determine extent to which symptoms limit the ability to perform work-related acxvixes 572

7 Sweet or Crummy: SSR 16-3p Out of the Box Section S PEOPLE EXPERIENCE PAIN DIFFERENTLY STEP 2 Are statements about intensity, persistence, and limixng effects of symptoms CONSISTENT with the medical signs and laboratory findings of record? STEP 2 Both SSR 96-7p and SSR 16-3p direct that evaluaxon of a claimant s subjecxve symptoms shall consider all he evidence in the record. Both SSR s incorporate the regulaxons, 20 C.F.R (c)(3) and (c)(3). 573

8 Section S National Social Security Disability Law Conference 20 C.F.R (c)(3) IdenXfy factors to consider in evaluaxng the intensity, persistence and funcxonally limixng effects of the symptoms 1. ADL 2. LocaXon, nature, duraxon, frequency and intensity of symptoms. 3. PrecipitaXng and aggravaxng factors 4. Type of RX; effecxveness and side effects, 5. other treatment or measures used for relief, 6. Any measures used to relieve pain (e.g., lying flat on your back, standing for 15 to 20 minutes every hour...), and 7. Other factors Polaski v. Heckler, 739 F. 2d 1320 (8 th Cir. 1984) POLASKI? Then what about adjudicator must give full consideraxon to all the evidence presented relaxng to subjecxve complaints, including claimant s prior work record and observaxons by third parxes and treaxng and examining physicians.??? 574

9 Sweet or Crummy: SSR 16-3p Out of the Box Section S WE GOT THAT! 20 C.F.R (c)(3) We will consider all the evidence presented, including informaxon about your prior work record,...and observaxons by our employees and other persons SSR 16-3P (2)(b) Medical Sources Medical sources may offer diagnoses, prognoses, and opinions as well as statements and medical reports about individual s history, treatment, responses to treatment, prior work record, efforts to work, daily acxvixes, and other informaxon concerning the intensity, persistence, and limixng effects of an individual s symptoms SAY WHAT?? Since when do doctors give opinions about prior work record?? Go back to the RegulaXons! 575

10 Section S National Social Security Disability Law Conference SSR 16-3P SSA will explain which symptoms it finds consistent or inconsistent with the evidence in the record and how its evaluaxon of the symptoms leads to its conclusions. JEWELS inconsistencies in an individual s statements made at varying Xmes does not necessarily mean they are inaccurate. JEWELS increasing dosages and changing medicaxons, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indicaxon... symptoms are a source of distress and may show that they are intense and persistent. 576

11 Sweet or Crummy: SSR 16-3p Out of the Box Section S JEWELS Lack of treatment (been there) may show the alleged intensity and persistence of symptoms are inconsistent with the record. BUT SSA is suppose to consider reasons for non-compliance and/ or lack of treatment. JEWELS SSA will explain how it considered the reasons the claimant gave in its evaluaxon of the individual s symptoms. Boiler plate is not enough Decision must contain specific reasons for the weight given to the individual s symptoms, be consistent with and supported by the evidence, and be clearly arxculated What are the Circuit Courts doing with SSR 16-3p?? Snyder v. Colvin, 667 Fed.Appx. 319 (2 nd Cir. June 30, 2016) Despite this error, the credibility determinaxon was supported by other substanxal record evidence as discussed above. Furthermore, the lack of formal mental health treatment was just one of mulxple factors considered in assessing the plainxff's credibility, including that Snyder's allegaxons were unsupported by objecxve medical evidence, and so any error was harmless. Dooley v. Commissioner of Social Security, 656 Fed.Appx. 113 (6 th Cir..July 28, 2016) SSR 16 3p does not alter the rule that the ALJ should consider possible reasons why a claimant failed to seek medical treatment consistent with the degree of his or her complaints before drawing an adverse inference from the claimant's lack of medical treatment. Accordingly, we need not reach the issue of whether this ruling applies retroacxvely. 577

12 Section S National Social Security Disability Law Conference CIRCUIT COURTS CONT. Trevizo v. Berryhill, 2017 WL (9th Cir. July 10, 2017) (Reversed and remanded) This ruling [SSR 16-3p] makes clear what our precedent already required: that assessments of an individual's tesxmony by an ALJ are designed to evaluate the intensity and persistence of symptoms awer [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms, and not to delve into wide-ranging scruxny of the claimant's character and apparent truthfulness. Paulek v. Colvin, 662 Fed.Appx. 588 (10 th Cir. October 3, 2016) The ALJ thus considered the degree to which Mr. Paulek's subjecxve claims were consistent with the medical evidence, see SSR 16 3p. CIRCUIT COURTS CONT. Shelton v. Colvin, 663 Fed.Appx. 690 (10 th Cir. October 18, 2016) In parxcular, the ALJ relied upon the inconsistency between Shelton's allegaxons and the medical record. See SSR 96-7p ( One strong indicaxon of the credibility of an individual's statements is their consistency, both internally and with other informaxon in the case record. ) (superseded by SSR 16-3p). [CitaXons omixed]. Paulsen v. Colvin, 665 Fed.Appx. 660 (10 th Cir. November 1, 2016) The ALJ's credibility findings are closely and affirmaxvely linked to substanxal evidence and may not be disturbed. CIRCUIT COURTS CONT. Brownrigg v. Berryhill, 2017 WL (10 th Cir. April 19, 2017) (Reversed and remanded) Our approach is consistent with SSR 16-3P, which emphasizes the insufficiency of conclusory statements and recitaxons of factors and instructs how the decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly arxculated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms. Scox v. Berryhill, 2017 WL (10 th Cir. July 10, 2017) The PlainXff, Nichole Scox, died during the District Court appeal. Her husband was subsxtuted as a party and the Court stuck with the old SSR 96-7p credibility analysis in affirming. 578

13 Sweet or Crummy: SSR 16-3p Out of the Box Section S TAKE AWAY 1. Prepare your case 2. Prepare your client 3. Eat more Dutch LeVers! QUESTIONS? 579

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