Compliance with Medical Treatment: SSR 96-7p

Although SSR 96-7p permits SSA to consider compliance with recommended medical treatment as a factor in determining the credibility of the claimant, “The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide.”

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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.      

Mental Demands of Unskilled Work

The basic mental demands of competitive unskilled work include the ability to perform the following activities on a sustained basis:

  1. understand, carry out, and remember simple instructions;
  2. make judgments that are commensurate with the functions of unskilled work ( simple work related decisions);
  3. respond appropriately to supervision, coworkers and work situations; and,
  4. deal with changes in a routine work setting.

“A substantial loss of ability to meet any of the basic mental demands listed [above] . . . would justify a finding of inability to perform other work. . . .”

POMS DI 25020.010

 

Recent Decision Re: Credibility

In Hobson v. SSA, 2013 U.S. Dist. LEXIS 62901 (M.D.Tenn. May 2, 2013), the Magistrate Judge for the District Court recommended reversal and remand of a decision denying the plaintiff’s claim for disability benefits in large part because of the ALJ’s credibility determination.  The Magistrate Judge began the legal analysis by noting  the following important rule of law:

There is no question that a claimant’s subjective complaints can support a finding of disability — irrespective of the credibility of that claimant’s statements before the agency — if they are grounded in an objectively established, underlying medical condition and are borne out by the medical and other evidence of record. Id.; see, e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); SSR 96-7p, 1996 SSR LEXIS 4 at *3, 1996 WL 374186, at *1, 5 (describing the scope of the analysis as including “the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record[;]” “a finding that an individual’s statements are not credible, or not wholly credible, is not in itself sufficient to establish that the individual is not disabled.”).

The ALJ found that the claimant was “able to assist his children with their homework; to care for his own personal needs; to prepare simple meals; to shop; to manage funds/pay bills; to concentrate; to understand the spoken word; to get along with authority figures and to handle stress and/or changes in routine. This evidences that the claimant is able to function.”  The ALJ further found that medical treatment improved the claimant’s condition and that the objective medical testing was “unremarkable.”  As a result, the ALJ took issue with the claimant’s credibility.

The District Court noted that although the objective medical testing was unremarkable,

There is clearly an underlying medical condition giving rise to plaintiff’s subjective report of pain: migraine headaches likely caused or exacerbated by plaintiff’s cranial osteoma.”  The Court reasoned that the claimant’s treating physicians “did not in any way articulate that they doubted plaintiff’s report of migraine symptoms. Rather, the neurologists and primary care physicians at the VA continued to prescribe a combination of medications for his migraines, with adjustments made at intervals in an attempt to relieve his symptoms without resorting to narcotic pain medication, before finally adverting to narcotic therapy in 2009, with good results. . . . In fact, during the period at issue, there does not appear to be any legitimately conflicting evidence on the issue of pain in the record, a point which the Sixth Circuit has deemed significant. King v. Heckler, 742 F.2d 968 (6th Cir. 1984). Lastly, while not in any way binding on the SSA, it is certainly noteworthy that the VA awarded plaintiff benefits based on its determination of his unemployability, owing to the combined effect of his migraines, seizures, and asthma (of which plaintiff’s migraines were the most significant factor in the VA disability calculus).

The Court noted that while an ALJ’s credibility findings are due “significant deference”, in this case, the ALJ did not ask the plaintiff any questions during the short 15 minute hearing.  Moreover,

The ALJ failed entirely to discuss the alleged medication side effects mentioned above, including to what extent those side effects occurred during the period at issue here, prior to the introduction of narcotic pain medication; plaintiff had earlier reported drowsiness and weakness as side effects of amitriptyline. In short, the ALJ’s credibility determination is not supported by substantial evidence, and is not deserving of deference under these circumstances.

The Court concluded the decision as follows:  “In sum, the decision of the SSA is not supported by substantial evidence, and the undersigned therefore concludes that reversal and remand to the agency are in order in this case.”

Chronic Pain

Clint Cooper, a staff writer for the Chattanooga Times Free Press, published a very good article on Chronic Pain in today’s paper.  If your chronic pain keeps you from working, feel free to contact Patrick Cruise at The Hamilton Firm for a free consultation. You may be entitled to disability benefits.

2012 Disability Decision Data

According to data published in the NOSSCR Social Security Forum (Vol. 35, No. 2 – February 2013), 88% of Requests for Reconsideration were denied in 2012.  Over two-thirds of applications were denied.  At the hearing level, about 50% of claims were approved.  Appeals to the Appeals Council were denied 77% in 2012.  There were over 3 million applications for disability in 2012.  If you need help with your disability claim, feel free to contact my office at 423 634 0871.

Failure to seek Mental Health Treatment

“It is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.”  Blankenship v. Bowen, 874 F.2d 1116 (6th Cir. 1989).