E-Newsletter Editor: Michael Persellin
UPCOMING CLE PROGRAMS
Representing Clients with Sensory Impairments in a Social Security Disability Case
Deadline to Register: Thursday, April 21, 2016
Date: Tuesday, April 26, 2016 12:15 PM to 1:15 PM
Location: Honors Room / MSBA Office
Please join the Social Security Disability Law Section for a training on representing clients with sensory impairments in a Social Security Disability case. Topics covered during this training include:
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Loss of Speach
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Visual Impairments
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How to read a visual chart - terminology and definitions
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What is loss of central vision, visual acuity, and visual efficiency
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Example of visual RFC-onset date for XVI applications
Lunch will be provided. Special meal requests need to be received no later than Thursday, April 21.
Presenter: Ethel Schaen, Ethel Schaen Law Office, St. Paul
CLE Credit: 1.0 Standard CLE Credit applied for | Event Code: 218157
Cost: FREE to Social Security Disability Law Section Members
Remote Participation: Remote attendance is available. Please indicate that you will attend remotely when registering. Instructions will be sent via e-mail on Monday, April 25.
Registration: SSD section members should register online using this link. After you click the link, click the Register button at the top of the page.
ROUNDTABLE DISCUSSIONS
Tuesday, May 31 - Brown Bag meeting (12-1:15 pm.) - Top 10 Social Security Horror Stories
ANNUAL MEETING & COUNCIL ELECTIONS
Tuesday, April 26, 2016 - The Section's Annual Meeting will start at Noon, followed by the CLE program from 12:15-1:15 p.m. The Section will elect new officers and council members for the 2016-2017 bar term.
Nominations are being accepted for two year council terms starting July 1 and ending June 30, 2018. Persons interested in serving on the Council should contact Sue Bores to be added to the slate of candidates.
SECTION NEWS
The Executive Committee of the Section eliminated the dues requirement for new admittees, and submitted the following dues structure for 2016-2017 to MSBA:
- Regular Attorney Member $18
- Public/Legal Services Member $18
- New Admittee (Attorneys in the first 12-months of admission to the bar) $0
- Law Student $0
- Section Only Members $18 (Non-attorneys who are not eligible for membership in the MSBA)
SOCIAL SECURITY DISABILITY LAW CASES
Nowling v. Colvin, 813 F.3d 1110 (8th Cir.2016)
Substantial evidence did not support ALJ’s determination to give little weight to opinion of claimant’s treating physician. ALJ discounted opinion because GAF score of 56 in physician’s medical source statement was inconsistent with other experts’ opinions and with treating physician’s other opinions and statements. Although single GAF score may itself have little probative value as to severity of a claimant’s mental impairments, it is error to disregard a physician’s substantial longitudinal treatment history based merely upon one of several inconsistent reported GAF scores. Remanded.
Ash v. Colvin, 812 F.3d 686 (8th Cir.2016)
Substantial evidence supported ALJ’s determination that claimant did not meet Listing 12.05C because she failed to show “deficits in adaptive functioning” as required by opening paragraph of listing. ALJ acknowledged claimant had IQ scores in range required by listing but concluded scores were “not a true reflection of her adaptive functioning ability.” ALJ observed that claimant lived independently, performed personal care tasks and household chores, drove car, used computer, operated cash register, and socialized with others. ALJ found claimant had only mild restriction in activities of daily living and moderate difficulties in social functioning, concentration, and persistence. Affirmed.
Chaney v. Colvin, 812 F.3d 672 (8th Cir.2016)
Substantial evidence supported ALJ’s credibility and RFC determinations, and ALJ’s discounting opinions of claimant’s treating physicians. Though ALJ made factual errors and drew inferences from the erroneous findings, other evidence supported ALJ’s less-than-fully credible determination. ALJ determined claimant’s complaints were inconsistent with other evidence, including that claimant was able to inject methamphetamine between his toes; stopped exercising despite testifying exercise helped his pain; refused weight loss consultation despite being advised to do so; and failed to complete physical therapy. ALJ also discussed claimant’s activity level in assessing his level of pain and ability to perform gainful activity, including participating in his child’s church group. ALJ also relied on evidence from consultative psychologist who believed claimant was exaggerating and falsifying symptoms. ALJ also found claimant non-compliant with taking medication and he was seeking out pain medications. See Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir.2006) (“misuse of medication is a valid factor in an ALJ’s credibility determinations.”). When evidence could support two inconsistent positions and ALJ adopts one of those positions, Court must affirm ALJ’s determination. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003).
In making his RFC determination, ALJ did not fail to take into account strength and side effects of drugs claimant was taking. ALJ found claimant misrepresented himself to his treating physicians - for example, by not self-reporting illegal drug use - the treating physicians therefore were not aware of claimant’s actual level of pain. Additionally, ALJ took into account limitations imposed by claimant’s medication, including that he should not work at exposed heights or around dangerous machinery.
Opinions of claimant’s treating physicians were not supported by record as whole. ALJ determined one treating physician’s opinion was not consistent with other evidence, in part because claimant reported he spent most days in bed, but other evidence indicated claimant was relatively active. ALJ also discounted the opinion because the physician did not know claimant used illegal drugs. ALJ discounted second treating physician’s opinion because physician failed to reference claimant’s use of illegal drugs and physician’s form indicated only moderate symptoms which did not support limitations suggested by physician. Additionally, claimant’s noncompliance with treatment can constitute evidence inconsistent with treating physician’s medical opinion and, therefore, can be considered in determining whether to give opinion controlling weight. Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.2010). Affirmed.
SOCIAL SECURITY PRACTICE
The State Medical Review Team (SMRT) certifies disability as a basis of eligibility for Medical Assistance (MA), MA for Employed People with Disabilities (MA-EPD), and children whose MA eligibility is determined under the TEFRA option. In evaluating disability, SMRT uses the same criteria as does SSA.
Practitioners have been able to order the SMRT approval letter and Rationale. All Rationales are now written using the 5-step sequential process and state whether a person meets or equals a Listing. Additionally, practitioners can order all medical records acquired by SMRT in its review. SMRT often orders relevant records from years prior to SSA’s AOD.
Thanks to Carly Pederson of SMRT, formerly of Disability Professionals, and Ardys Korstad, Korstad Law Office, Amboy, MN.
SOCIAL SECURITY NEWS
Social Security it a Lifeline for Many in Northern Minnesota|NOSSCR
Disparity in Life Spans of the Rich and the Poor Is Growing|NYTimes
Social Security Applicants Struggle for Disability Benefits|NOSSCR
For Some, Leaving the Workforce Continues Long After Retiring|NYTimes
Stop with the Zombie Lies: No, Social Security is Not Going Broke|Washington Post
CALL FOR NEWSLETTER SUBMISSIONS
Each and every member of our section is welcome, and encouraged, to submit news for the section newsletter. News is anything our members might find interesting or helpful, and may include a link to a news story, an article you’ve written for another publication, a helpful practice form, or a case summary – anything relative to our practice area. Please send submissions for the September newsletter to Michael Persellin at mjpersellin@mylegalaid.org by August 31.
SOCIAL SECURITY ONLINE RESOURCES
Social Security News|Federal Bar Association
SSA Online
SSA Programs Operations Manual System (POMS)
SS Rulings and Acquiescence Rulings
Hearings, Appeals, and Litigation Manual (HALLEX)
8th Circuit Social Security Case Law and Summaries|PROJUSTICEMN
Occupational Information Network|U.S. Dept. of Labor
Compassionate Allowances|SSA.gov
Quick Disability Decisions (QQD)|SSA.gov
June 1-4, 2016, Miami Beach, FL
November 2-5, 2016, Seattle, WA
2015-16 SECTION LEADERSHIP
Officers
Co-Chair: Michael Persellin, Mid-Minnesota Legal Aid
Co-Chair: David L. Christianson, Christianson Law
Secretary: Anthony Mannella, Midwest Disability PA Inc
Treasurer: Emily Cooper, Cooper & Reid LLC
Council Members
Samantha Clawson, Southern Minnesota Regional Legal Services
Shelley Jensen, Judicare of Anoka County Inc
Andrew Kinney, Hoglund Chwialkowski & Mrozik PLLC
Gregg Nelson, Nelson Law Office
Ellen Smart, Mid-Minnesota Legal Assistance
Sarah Soucie Eyberg
Kirk Thompson, Cronan Thompson