Synopses of Briefs

• Author: Thomas E. Bush/David A. Morton III/David Traver/Sarah H. Bohr/Curtis J. Fisher/Kimberly V. Cheiken
• Pages: 645-682

Bohr’s Social Security

Issues Annotated

Sarah H. Bohr, Esq.

Curtis J. Fisher, Esq.

Kimberly V. Cheiken, Esq.

SOCIAL SECURITY DISABILITY COLLECTION

James’ Best Materials

646

Synopses of Briefs on Digital Access

U.S.Supreme Court

Brief 7 - Issue Exhaustion - Reply Brief - Sims v. Apfel (Supreme Court)

In a 5-4 decision written by Justice Thomas, the Supreme Court of the United States invalidated an issue exhaustion requirement in Sims v. Apfel, 120

S.Ct. 2080 (U.S. June 5, 2000) (No. 98-9537). The Court held that Social Security proceedings are nonadversarial, claimants who exhaust adminis-

trative remedies need not explicitly present specific issues and arguments to the Appeals Council in order to preserve judicial review of those issues.

In so holding, a plurality of the court noted that Social Security proceedings are inquisitorial rather than adversarial, that it is the ALJ’s duty

to develop the facts and develop the arguments, and that the “Council’s review is similarly broad.” The plurality also noted that the Appeals

Council’s review is plenary and that the regulations require the Appeals Council to evaluate the entire record, including “new and material”

evidence in determining whether to grant review. Furthermore, the fact that the Request for Review form contains only three lines to explain

the reasons for the appeal and the instructions for completing the form estimate that it will take only 10 minutes to complete “strongly suggests

that the Council does not depend much, if at all, on claimants to identify issues for review.”

First Circuit

Brief 46 - Social Security Ruling 00-4p & VE Testimony Which Conflicts with the DOT - Plaintiff’s Brief - Antunes v. Barnhart (Rhode

Island district court)

In Antunes v. Barnhart, Case No. 03-179M (D.R.I. May 12, 2004), plaintiff briefed the following four issues:

1) Whether the Commissioner erred as a matter of law in failing to provide any reasons whatsoever for rejecting Dr. Digiacomo’s opinion

regarding Mrs. Antunes’ ability to work.

2) Whether the Commissioner erred as a matter of law in predicating the denial of benefits on Mrs. Antunes’ expected future improve-

ment rather than on her condition from her alleged onset date through the date of the hearing decision, as required.

3) Whether the Commissioner erred in failing to consider the effect of Mrs. Antunes’ subjective complaints of pain and fatigue on her

ability to work.

4) Whether the Commissioner sustained her burden of establishing that there is other work in the national economy that Mrs. Antunes can perform.

After Plaintiff fully briefed the case, the Commissioner filed a Motion for Entry of Judgment under Sentence Four of 42 U.S.C. § 405(g)

with Reversal and Remand of the Cause to the Defendant seeking to remand this case in light of the conflict between the testimony of the

vocational expert (VE) and the Dictionary of Occupational Titles (DOT). Specifically, the Commissioner acknowledged that the “jobs which

the VE opined Plaintiff could perform were precluded by the ALJ’s RFC assessment, and the ALJ did not seek a reasonable explanation for

the conflict between the VE’s testimony and the DOT, as required by Social Security Ruling 00-4p.” In the Memorandum and Order entered

on May 17, 2004, the court directed that on remand, the Commissioner will instruct the ALJ to:

(1) hold a new hearing at which Plaintiff will be entitled to appear and testify; (2) obtain vocational expert testimony as to whether

Plaintiff could perform any jobs that exist [] in significant numbers, given the ALJ’s RFC finding; and (3) question the VE as to

whether any conflict exists between his testimony and the information contained in the DOT and, if so, to resolve any such conflicts.

Brief 47 - Severity of Mental Impairments & 20 C.F.R. § 404.1520a - Plaintiff’s Motion for Order Reversing Decision of the Commis-

sioner - Silva v. Barnhart (New Hampshire district court)

In Silva v. Barnhart, Case No. 03-236-B (D.N.H. Mar. 8, 2004), plaintiff briefed the following three issues:

1) Whether the Commissioner erred as a matter of law in improperly evaluating the impact of Mrs. Silva’s depression on her ability to work.

2) Whether the Commissioner erred as a matter of law in failing to consider the effect of Mrs. Silva’s subjective complaints of pain and

depression on her ability to work.

3) Whether the Commissioner sustained her burden of establishing that there is other work in the national economy that Mrs. Silva can perform.

After Plaintiff fully briefed the case, the Commissioner sought plaintiff’s consent to a remand and then filed an Assented-To Motion for Entry

of Judgment under Sentence Four of 42 U.S.C. § 405(g) with Reversal and Remand of the Cause to the Commissioner. In this motion, the

Commissioner stated that the ALJ will hold a new hearing and be instructed to: (1) update the treatment evidence on the claimant’s medical

condition; (2) obtain evidence from a medical expert to clarify the onset, nature, and severity of the claimant’s impairments and to expressly

consider the treatment records indicating the onset of symptoms of depression and to comment on “what inferences might be drawn from the

evidence in the record as a whole on the onset of the claimant’s depression to her first treatment for it” as set forth in SSR 83-20; (3) articulate

how he evaluated the severity of all medically determinable mental impairments as mandated by 20 C.F.R. § 404.1520a; (4) further consider

plaintiff’s RFC based on the updated record, citing the specific evidence which supports the assessed limitations and “set out his findings in

terms of the function-by-function assessment mandated by SSR 96-8p” and if the “evidence indicates an intolerance for stress, the ALJ will

articulate how this has affected the claimant’s ability to engage in specific basic work activities;” (5) as appropriate, obtain evidence from

a vocational expert to “clarify the effect of the assessed limitations on the claimant’s occupational base,” with the hypothetical questions

reflecting the specific capacity/limitations established by the record as a whole and resolve any conflicts between the VE testimony and the

Dictionary of Occupational Titles as set forth in SSR 00-4p.

647 SYNOPSES OF BRIEFS FIRST CIRCUIT

Briefs 59 and 60 - Social Security Ruling 00-4p & VE Testimony Which Conflicts with the DOT - Plaintiff’s Brief, Plaintiff’s Reply

Brief - Mead v. Barnhart (New Hampshire district court)

In Mead v. Barnhart, Case No. 040139-JD, 2004 WL 2580744 (D.N.H. Nov. 15, 2004), plaintiff briefed the following three issues:

1) Whether the Commissioner failed to sustain her burden of establishing that there is other work in the national economy that Ms. Mead

can perform.

2) Whether the Appeals Council was egregiously mistaken in refusing to grant review despite the submission of new evidence establish-

ing that Ms. Mead suffers from a somatoform disorder and is significantly more limited due to her mental impairment than determined

by the ALJ.

3) Alternatively, whether the Court should remand this case under the sixth sentence of 42 U.S.C. § 405(g) to consider the new and

material evidence submitted to the Appeals Council.

In Mead, the court held that it appeared that the VE’s testimony that a claimant who is limited to jobs requiring only simple, repetitive tasks

cannot perform the job of surveillance system monitor, which has a reasoning at level 3 and language at level 3. The court then noted that SSR

00-4p provides that the “adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and

information provided in the DOT.” The court surveyed the law regarding this issue, and concluded that the “cases that interpret SSR 00-4p

as imposing an affirmative duty on the ALJ to inquire about the possibility of a conflict and to explain a conflict that is apparent or identified

are persuasive.” Since the ALJ in Mead failed to inquire about a conflict between the VE’s testimony and the DOT, and since an “unexplained

conflict” existed, the court reversed and remanded the case for further proceedings.

Briefs 75 and 76 - Social Security Ruling 00-4p & VE Testimony Which Conflicts With the DOT - Plaintiff’s Brief and Plaintiff’s Reply

Brief - Whitzell v. Barnhart (Massachusetts district court)

In Whitzell v. Barnhart, 379 F. Supp.2d 204 (D. Mass. 2005), plaintiff briefed the following three issues:

1) Whether the ALJ’s residual functional capacity assessment is based on substantial evidence.

2) Whether the ALJ’s credibility finding is based on substantial evidence.

3) Whether the Commissioner sustained her burden of establishing that there is other work in the national economy that Ms. Whitzell

can perform.

In Whitzell, the court held that the ALJ failed to resolve the conflict between the testimony of the vocational expert and the Dictionary of

Occupational Titles (“DOT”) as required by Social Security Ruling 00-4p, stating:

A reasoning level two position . . . requires an individual to be able to “carry out detailed but involved written or oral instructions.”

While the hearing officer did not conclude that Whitzell was able to maintain concentration required for more complex and detailed

tasks, he stated that this concentration could not be sustained for extended periods of time or on a continuous basis. Such a limitation is

inconsistent with a reasoning level two position which could possibly require sustained or extended periods of concentration or attention.

As such, the court remanded this case “in accordance with Social Security Ruling 00-4p, so that he may provide a reasonable explanation for

this apparent conflict.”

Brief 99 - Substance Abuse, Weight of Nurse Practitioner’s Opinion, RFC, Medication Side Effects - Plaintiff’s Brief - Zarilli v. Astrue

(Maine district court)

In Zarilli v. Astrue, Case No. 1:08-cv-00082-JAW, 2008 WL 4936613 (D. Me. Nov. 16, 2008), Plaintiff briefed the following four issues:

1) The ALJ’s implicit finding that Mr. Zarilli’s substance abuse is a contributing factor, material to a finding of disability, is not based

on substantial evidence.

2) The ALJ committed reversible error in failing to accord any weight whatsoever to the opinions and assessments of either Lisa Jacobs,

PMH-NP or to Sarah Roy, LSC, Mr. Zarilli’s treating mental health providers.

3) The ALJ failed to follow SSR 96-8p in finding that Mr. Zarilli has no physical limitations whatsoever.

4) The ALJ committed reversible error in failing to properly evaluate the side effects of Mr. Zarilli’s medications.

In the Report and Recommendation dated November 16, 2008, United States Magistrate Judge John H Rich, III recommended reversal and

remand of this case, finding that the ALJ committed reversible error in failing to properly evaluate the claimant’s complaints of side effects of

dizziness, drowsiness, fatigue, lethargy, and upset stomach from his medications. As the Magistrate Judge noted, the only evidence of a lack of

side effects cited by the ALJ was the Plaintiff’s disability reports, but he was only taking over the counter medications at that point which did

not cause any side effects. However, when the Plaintiff complained of side effects, he was taking prescription medications including Campral,

Valium, Risperdal, and Paxil, the known side effects of which include those of which the plaintiff complained. In so finding, the Magistrate

Judge rejected the Commissioner’s argument, stating he was not:

aware of any authority to support the assertion of counsel for the commissioner at oral argument that side effects are not sufficiently

severe to require the attention of the administrative law judge unless a treating physician found it necessary to change the claimant’s

medications for that reason. The administrative law judge’s treatment of this claim is insufficient. The claimant is entitled to remand

on this basis.