NPRM: Proposed New Listings for Mental Impairments

DW · Joined: 19 Dec 2004 Posts: 164

"1 The undersigned notes that the Appeals Council action vacated the prior decision by another Administrative Law Judge. This action permits a de novo analysis of the medical evidence of record and the claimant's allegations and testimony. The result of this analysis is a residual functional capacity that differs substantially from the one in the prior decision. The undersigned is convinced that there is no basis for non-exertional mental limitations owing to the lack of ongoing mental health treatment, the scope of the claimant's Daly activities and his ability to interact with others. Further, the evidence of record, notably the absence of significant signs or findings relating to limitations that can reasonably flow from the claimant's musculoskeletal impairment, does not support the need for a sit/stand option in the residual functional capacity. Inclusion of "normal breaks" within the residual functional capacity is the most that is required, given the state of the claimant's impairments prior to December 2008, his date last insured."

ALJ's comments in the remanded hearing decision.

David Traver · Posted: Mon Mar 08, 2010 06:06 pm Post subject:

What does the remand order say?

DW · Joined: 19 Dec 2004 Posts: 164

ORDER OF APPEALS COUNCIL
REMANDING CASE TO ADMINISTRATIVE LAW JUDGE
The Administrative Law Judge issued a decision on January 27,2009. The claimant has asked the Appeals Council to review this decision.
The Appeals Council grants the request for review under the substantial evidence provision of the Social Security Administration regulations (20 CFR 404.970). Under the authority of 20 CFR 404.977, the Appeals Council vacates the hearing decision and remands this case to an Administrative Law Judge for resolution of the following:
• The hearing decision found the claimant had the residual functional capacity to perform sedentary work and was limited to work with a sit/stand option (Finding No. 5). The Appeals Council notes that the hypothetical questions proposed the Vocational Expert included a sit/stand option without specific parameters. Social Security Ruling 96-9p requires the residual functional capacity assessment to be specific as to the frequency of the individual's need to alternate sitting and standing. Further consideration of the claimant's exertional limitations is needed.
• Work-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting (SSR 96-8p). A residual functional capacity assessment that does not address these factors, when mental impairments are present, is troublesome, particularly when there are appreciable deficits identified in broad categories used to complete the "B" criteria assessment. Herein The hearing decision found as part of the "B" criteria that the claimant had "moderate'' difficulties in concentration, persistence or pace (Decision page 4), but then found a reduced range of sedentary work with the mental limitation that he is only able to perform "simple, repetitive tasks" (Finding No.5). "Simple, repetitive tasks" represent more of a vocational factor as opposed to the types of mental limitations contemplated by the cited Ruling. Further consideration and clarification of the claimant's mental limitations is required.
Upon remand the Administrative Law Judge will:
• Give further consideration to the claimant's maximum residual functional capacity and provide the appropriate function-by-function assessment of the claimant's ability to do work-related physical and mental activities with sufficient rationale and specific references to evidence of record in support of the assessed limitations (20 CFR 416.945 and Social Security Ruling 85-16 and 96-8p).
• Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy
(20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
In compliance with the above, the Administrative Law Judge will offer the claimant an opportunity for a hearing, address the evidence which was submitted with the request for review, take any further action needed to complete the administrative record and issue a new decision.

David Traver · Posted: Tue Mar 09, 2010 03:13 am Post subject:

JOA · Joined: 13 May 2004 Posts: 2021

I tried to say something about this issue in 2/07. Here's a link to that prior post:

http://ssaconnect.com/component/option,com_forum/Itemid,2/page,viewtopic/t,5358/highlight,journal/

One of last year's NOSSCR conferences brought us a paper by Eric Schnaufer and Thomas Sutton about res judicata and the law of the case doctrine. But this paper is expressly restricted to cases in federal court. I cannot see that it bears on cases that have not gone to federal court.

Messrs. Schnaufer and Sutton had a companion paper about issue preclusion. I'm not yet certain I understand this one. But I’m suspecting that it also does not bear on cases for which there's been no litigation.

Guest · Posted: Tue Mar 09, 2010 04:28 pm Post subject:

Did Eric take his website down? I can't connect to it.

David Traver · Posted: Tue Mar 09, 2010 04:36 pm Post subject:

It looks like his redirects are screwed up. Try http://schnaufer.org/ it works.