Thursday, August 11, 2005

Third Circuit: SSR and Disabilty Determination

Allen v. Barnhart , No. 04-2163 (3d Cir. August 08, 2005)

This case looks at the role that Social Security Rulings play in Agency determinations, and, more specifically, whether reference to the specific Ruling was an appropriate substitute for the testimony of a vocational expert.

In this case, involving only non-exertional impairments, the ALJ relied on the grid regulations as a "framework," and then relied on Social Security Ruling ("SSR") 85-15 in reaching his ultimate conclusion that Allen could engage in substantial gainful employment.

The Court questioned the ALJ's reliance on the ruling in his decision which focused on the attributes of work, not the limitations experienced by the Claimant, noting that the Claimant was capable of performing "a full range of unskilled work at all exertional levels" but then stating, as the complete mental impairment analysis, the following: "The mental limitations for simple, routine, repetitive work do not significantly erode the base of jobs the claimant is capable of performing. (SSR 85-15.)"

The Court noted that the ALJ made broad statements regarding Claimant's RFC but his conclusion only addresses in general fashion the "mental limitations for simple, routine, repetitive work." It does not reference any aspect of SSR 85-15 that relates Claimant's particular nonexertional limitations to the occupational job base.

This was especially significant in this case where the Appeals Council had previously remanded the case and in its remand order specifically admonished the ALJ to state the claimant's exertional and nonexertional limitations.

Accordingly, the Court held that if the Secretary wishes to rely on an SSR as a replacement for a vocational expert, it must be crystal-clear that the SSR is probative as to the way in which the nonexertional limitations impact the ability to work, and thus, the occupational base.

The court also said that if SSA intends to "rely on rules as a substitute for individualized determination, and thus relieve the agency from the burden of producing evidence, we think advance notice should be given" to the claimant. The court urged and said that it "will always be a matter of fairness" for SSA to "alert... a claimant to the relevant rule in advance" of a hearing. "While the agency can meet its burden by reference to a Ruling, as the Supreme Court has held, nonetheless, the claimant should have the opportunity to consider whether it wishes to attempt to undercut the Commissioner's proffer by calling claimant's own expert. Obviously, this requires notice in advance of the hearing."

"We think it only appropriate to give close scrutiny to the ALJ's reliance on a Ruling as satisfying the Commissioner's burden at Step 5 where the Commissioner has not previously advised or argued the clear applicability of the Ruling in advance of the hearing. In this way, while the Commissioner has the ability to satisfy its burden in this way, its doing so does not constitute an ambush whereby the claimant, who assumed he would have the opportunity to cross-examine a vocational expert, is left as a practical matter to merely argue against a Ruling in response to the Commissioner's proof."

The case was remanded for further elaboration by the ALJ regarding how the specific limitations experienced by Claimant would impact his ability to perform simple repetitive tasks in a job that constitutes substantial gainful employment. This can be accomplished by noting how SSR 85-15 is relevant and controlling - if indeed that is the case - or by obtaining the individualized assessment that SSR 85-15 seems to prefer by way of a vocational expert.

Henry Leone, Esquire
Training and Information Facilitator
Pennsylvania Legal Services