Severe Impairments in the 6th Circuit

Disability for Social Security purposes is determined using a five step sequential evaluation process. At the second step, the adjudicator is supposed to determine if the the claimant has any “severe” impairments.  To be severe, an impairment or combination of impairments must “significantly limit your physical or mental ability to do basic work activities.” 20 CFR 404.1520(c).  While this step of the sequential evaluation process may seem important, in practice, the process of determining a severe impairment has been, in many cases, rendered meaningless. 

For example, in the 6th Circuit, even if the ALJ fails to properly classify an impairment at step 2, a Court will normally find the error “not reversible” and irrelevant so long as the ALJ finds “some impairments” severe and continues the sequential evaluation process. Maziarz v. Sec’y of Health & Human Services, 837 F.2d 240 (6th Cir. 1987).  Although there are exceptions, the Maziarz holding presents a major hurdle for the practitioner attempting to appeal a denial to a federal court in the 6th Circuit where the ALJ may have committed error at Step 2.

Listing 12.05(C)

In Whitehead v. Comm’r of SSA, 2014 U.S.Dist. Lexis 112016, the District Court did a wonderful job of not only explaining Listing 12.05(C), but applying the listing to the facts of the case.   Listing 12.05C requires a valid IQ of 60 through 70 and a physical or mental impairment imposing an additional and significant work related functional limitation.  The Listing further requires intellectual disability manifested before age 22.  In my experience, there is a common misconception that someone who is mildly mentally retarded or intellectually disabled is unable to function in any manner whatsoever.  Thus, if a person with mild mental retardation has worked in the past, decision makers apparently feel it would be inappropriate to find the person disabled.  The truth is that individuals with mild mental retardation are usually able to live in the community, often independently (DSM, 4th).   Thus, it is improper to deny a claim that meets Listing 12.05 simply because the claimant has worked unskilled jobs in the past, or is able to watch television, drive, or take a bath.  “Individuals performing in the mild mental retardation range are capable of performing such activities.”  Whitehead, p. 14.      

Battle over the Tennessee Supreme Court

http://takingnote.blogs.nytimes.com/2014/07/23/if-judges-campaign-like-ordinary-politicians-can-we-have-impartial-courts/?_php=true&_type=blogs&_r=0

New Ruling SSR 14-1p

SSR 14-1p should be consulted in any case involving chronic fatigue syndrome. If you suffer from Chronic Fatigue Syndrome and are unable to work, contact The Hamilton Firm for a free consultation.

2013 Appeals Council Statistics

In fiscal year 2013, the Appeals Council took approximately one year to process requests for review. Almost 77% of the requests were denied by the Appeals Council.  In other words, the Appeals Council refused to review almost 80% of the requests filed. Approximately 17% of the requests resulted in a remand. About 1% of the requests for review by the Appeals Council resulted in a favorable decision.

If the claimant is denied, the decision on whether to re-file for benefits or appeal the decision to the Appeals Council is very difficult.  If you decide to appeal to the appeals council, it will probably take at least a year to get a decision, and about 80% of those requests will not even be reviewed.  If you decide to appeal your claim to the Appeals Council, make sure your attorney or representative is able and willing to consider taking the case to Federal Court.

Child Support and Social Security Disability

“It is well settled in Tennessee that SSI benefits are not subject to legal process for payment of court-ordered child support.”  In re Jordan H. (Tenn.Ct.App. March 25, 2014).  SSDI benefits, on the other hand, can be garnished. 

Evaluating Medical opinions

The regulations require an ALJ to evaluate every medical opinion. 20 CFR 404.1527(b): “we will evaluate every medical opinion we receive.”  The evaluation must comply with 20 CFR 404.1527(d).  Remember, a treating source opinion should not be rejected absent “good reasons.”  Id.

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