Appeal Council Issues
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Table of Contents
I. Minimal Articulation

IV. Pain / Subjective Complaints

V. Vocational Errors

VI. Additional Malarkey

VII. Full Table of Contents

I. Minimal Articulation

A. Introduction

An ALJ must offer a minimal articulation of his assessment of the evidence in order to permit the appellate court to review the ALJ's decision. See, e.g., Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir.1984) (ALJ offered no explanation for his total rejection of the claimant's uncontradicted testimony, which was supported by extensive medical reports, that her epilepsy rendered her unable to return to work); Switzer v. Heckler, 742 F.2d 382 (7th Cir.1984) (ALJ made no finding discounting two doctors' credibility as to their opinion that claimant's breathing was severely restricted when these two doctors' reports were challenged by another report of uncertain origin which denied claimant's disability); Taylor v. Schweiker, 739 F.2d 1240 (7th Cir.1984) (ALJ failed to mention and assess two relevant doctors' reports and the claimant's own testimony as to the claimant's significant problems with depression); Garfield v. Schweiker, 732 F.2d 605 (7th Cir.1984) (ALJ failed to even mention two subsequent reports prepared by a doctor that claimant's visual limitations were more serious than initially diagnosed); Cotter v. Harris, 642 F.2d 700 (3d Cir.1981) (ALJ failed to mention the obviously probative reports of several doctors that claimant could not return to work).

An ALJ ... must articulate, at some minimum level, his analysis of the evidence to allow the appellate court to trace the path of his reasoning. An ALJ's failure to consider an entire line of evidence falls below the minimal level of articulation required ... [But] an ALJ need not provide a complete written evaluation of every piece of testimony and evidence. Diaz v. Chater, 55 F.3d 300, 307-08 (7th Cir.1995).

B. Opinion evidence is acknowledged but decision does not evaluate it or explain the weight given it

C. No PRTF is appended to the decision and no rationale indicating 404.1520a/416.920a criteria were considered

D. There is insufficient or no rationale for PRTF findings, particularly the Part B criteria

E. Conclusory statement made about meets/equals without sufficient rationale with reference to supporting evidence.

F. Decision cites the appropriate regulatory standard for evaluating subjective complaints but never actually explains how the standard was applied to the facts and circumstances presented in the case

G. Claimant’s testimony in summarized but no rationale provided as to why it is rejected

H. Medical evidence is summarized but the RFCA is simply conclusory without any rationale or reference to the supporting evidence

I. The claimant’s only impairment is mental or there are only nonexertional limitations and the RFC is exertionally limited without explanation

J. PRTF indicates a severe mental impairment but RFC does not expressly consider the impact of any mental limitations

K. Medical improvement date is arbitrary, e.g., the date of the oral hearing, without rationale or reference to supporting medical evidence

L. Contradiction in evidence not addressed

1. SSR 96-2p

Not inconsistent. This is a term used to indicate that a well-supported treating source medical opinion need not be supported directly by all of the other evidence (i.e., it does not have to be consistent with all the other evidence) as long as there is no other substantial evidence in the case record that contradicts or conflicts with the opinion.

Whether a medical opinion is "not inconsistent" with the other substantial evidence is a judgment that adjudicators must make in each case. Sometimes, there will be an obvious inconsistency between the opinion and the other substantial evidence; for example, when a treating source's report contains an opinion that the individual is significantly limited in the ability to do work-related activities, but the opinion is inconsistent with the statements of the individual's spouse about the individual's actual activities, or when two medical sources provide inconsistent medical opinions about the same issue. At other times, the inconsistency will be less obvious and require knowledge about, or insight into, what the evidence means. In this regard, it is especially important to have an understanding of the clinical signs and laboratory findings and any treatment provided to determine whether there is an inconsistency between this evidence and medical opinions about such issues as diagnosis, prognosis (for example, when deciding whether an impairment is expected to last for 12 months), or functional effects. Because the evidence is in medical, not lay, terms and information about these issues may be implied rather than stated, such an inconsistency may not be evident without an understanding of what the clinical signs and laboratory findings signify.

2. Decision finds no severe impairment which is contradicted by the State agency reviewing physician’s opinion and no rationale is provided addressing the conflict

II. Pick and Choose

A. Introduction

"While it is often impracticable and fruitless for every document to be discussed separately, an ALJ may not select only the evidence that favors his ultimate conclusion.... His written decision should contain, and his ultimate determination must be based upon, all of the relevant evidence in the record." Garfield v. Schweiker, 732 F.2d 605, 609, 4 S.S.R.S. 355, 359, CCH ¶ 15,291 (7th Cir. 1984)

B. Decision relies on medical expert (ME) opinion as to impairment severity but ME’s opinion is not based on a review of the entire record.

C. Decision purportedly relies on treating source opinion but decision selectively quotes/relies on portions of opinion without explaining why all of the opinion is not accepted.

D. Treating source offers multiple opinions, not all of which are addressed.

III. Insufficient Evidence

A. Introduction

"We go on to address Sears' claim that the Secretary failed to fully and fairly develop the record because on remand Sears may wish to present evidence in addition to Dr. Ulrich's report. There is no dispute that the Secretary has a duty to fully and fairly develop the record. We are particularly concerned with Sears' claim because it appears that a more detailed case history including biographical information, should have been presented by the agency, if only because it might have led to the development of other relevant information. Considered individually, the flaws in the administrative proceedings may not be dispositive, but when considered in their entirety, they warrant remand.

....

Second, Sears was not represented by counsel, but he had a number of advocates from Wisconsin Community Advocates, whose efforts, as we have stated, lacked continuity. We have said that an ALJ is entitled to presume that a claimant represented by counsel in the administrative proceedings has made his best case. Glenn v. Secretary of Health and Human Services, 814 F.2d 387, 391 (7th Cir. 1987). This does not necessarily hold true when a claimant is represented by a nonlawyer."

Sears v. Bowen, 840 F.2d 394, 402, 20 S.S.R.S. 552, 560 (7th Cir. 1988)

"A well-settled proposition regarding social security disability hearings is that '[i]t is a basic obligation of the ALJ to develop a full and fair record.' Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857, 860 (7th Cir. 1978).... More importantly for Thompson, 'where the disability benefits claimant is unassisted by counsel, the ALJ has a duty "scrupulously and conscientiously [to] probe into, inquire of, and explore for all the relevant facts..." Smith v. Secretary, 587 F.2d at 860 (citing Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 43 (2d Cir. 1972)).

Thompson v. Sullivan, 933 F.2d 581, 585-86, 33 S.S.R.S. 407, 411, CCH ¶ 16,106A (7th Cir. 1991)

B. One or more a PRTF Part B criteria are marked “insufficient evidence” in a denial decision

IV.Pain / Subjective Complaints

A. Introduction

1. 20 CFR 404.1529 How we evaluate symptoms, including pain.

(a) General. In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. By objective medical evidence, we mean medical signs and laboratory findings as defined in § 404.1528 (b) and (c). By other evidence, we mean the kinds of evidence described in §§ 404.1512(b) (2) through (6) and 404.1513(b) (1), (4), and (5) and (e). These include statements or reports from you, your treating or examining physician or psychologist, and others about your medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work. We will consider all of your statements about your symptoms, such as pain, and any description you, your physician, your psychologist, or other persons may provide about how the symptoms affect your activities of daily living and your ability to work. However, statements about your pain or other symptoms will not alone establish that you are disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled. In evaluating the intensity and persistence of your symptoms, including pain, we will consider all of the available evidence, including your medical history, the medical signs and laboratory findings and statements about how your symptoms affect you. (Section 404.1527 explains how we consider opinions of your treating source and other medical opinions on the existence and severity of your symptoms, such as pain.) We will then determine the extent to which your alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how your symptoms affect your ability to work.

(b) Need for medically determinable impairment that could reasonably be expected to produce your symptoms, such as pain. Your symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect your ability to do basic work activities unless medical signs or laboratory findings show that a medically determinable impairment(s) is present. Medical signs and laboratory findings, established by medically acceptable clinical or laboratory diagnostic techniques, must show the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. At the initial or reconsideration step in the administrative review process (except in disability hearings), a State agency medical or psychological consultant (or other medical or psychological consultant designated by the Commissioner) directly participates in determining whether your medically determinable impairment(s) could reasonably be expected to produce your alleged symptoms. In the disability hearing process, a medical or psychological consultant may provide an advisory assessment to assist a disability hearing officer in determining whether your impairment(s) could reasonably be expected to produce your alleged symptoms. At the administrative law judge hearing or Appeals Council level, the administrative law judge or the Appeals Council may ask for and consider the opinion of a medical advisor concerning whether your impairment(s) could reasonably be expected to produce your alleged symptoms. The finding that your impairment(s) could reasonably be expected to produce your pain or other symptoms does not involve a determination as to the intensity, persistence, or functionally limiting effects of your symptoms. We will develop evidence regarding the possibility of a medically determinable mental impairment when we have information to suggest that such an impairment exists, and you allege pain or other symptoms but the medical signs and laboratory findings do not substantiate any physical impairment(s) capable of producing the pain or other symptoms.

(c) Evaluating the intensity and persistence of your symptoms, such as pain, and determining the extent to which your symptoms limit your capacity for work--

(1) General. When the medical signs or laboratory findings show that you have a medically determinable impairment(s) that could reasonably be expected to produce your symptoms, such as pain, we must then evaluate the intensity and persistence of your symptoms so that we can determine how your symptoms limit your capacity for work. In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence, including your medical history, the medical signs and laboratory findings, and statements from you, your treating or examining physician or psychologist, or other persons about how your symptoms affect you. We also consider the medical opinions of your treating source and other medical opinions as explained in § 404.1527. Paragraphs (c)(2) through (c)(4) of this section explain further how we evaluate the intensity and persistence of your symptoms and how we determine the extent to which your symptoms limit your capacity for work, when the medical signs or laboratory findings show that you have a medically determinable impairment(s) that could reasonably be expected to produce your symptoms, such as pain.

(2) Consideration of objective medical evidence. Objective medical evidence is evidence obtained from the application of medically acceptable clinical and laboratory diagnostic techniques, such as evidence of reduced joint motion, muscle spasm, sensory deficit or motor disruption. Objective medical evidence of this type is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms, such as pain, may have on your ability to work. We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.

(3) Consideration of other evidence. Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. The information that you, your treating or examining physician or psychologist, or other persons provide about your pain or other symptoms (e.g., what may precipitate or aggravate your symptoms, what medications, treatments or other methods you use to alleviate them, and how the symptoms may affect your pattern of daily living) is also an important indicator of the intensity and persistence of your symptoms. Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations and restrictions which you, your treating or examining physician or psychologist, or other persons report, which can reasonably be accepted as consistent with the objective medical evidence and other evidence, will be taken into account as explained in paragraph (c)(4) of this section in reaching a conclusion as to whether you are disabled. We will consider all of the evidence presented, including information about your prior work record, your statements about your symptoms, evidence submitted by your treating, examining or consulting physician or psychologist, and observations by our employees and other persons. Section 404.1527 explains in detail how we consider and weigh treating source and other medical opinions about the nature and severity of your impairment(s) and any related symptoms, such as pain. Factors relevant to your symptoms, such as pain, which we will consider include:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.

(4) How we determine the extent to which symptoms, such as pain, affect your capacity to perform basic work activities. In determining the extent to which your symptoms, such as pain, affect your capacity to perform basic work activities, we consider all of the available evidence described in paragraphs (c)(1) through (c)(3) of this section. We will consider your statements about the intensity, persistence, and limiting effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and other evidence, in reaching a conclusion as to whether you are disabled. We will consider whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest of the evidence, including your medical history, the medical signs and laboratory findings, and statements by your treating or examining physician or psychologist or other persons about how your symptoms affect you. Your symptoms, including pain, will be determined to diminish your capacity for basic work activities to the extent that your alleged functional limitations and restrictions due to symptoms, such as pain, can reasonably be accepted as consistent with the objective medical evidence and other evidence.

(d) Consideration of symptoms in the disability determination process. We follow a set order of steps to determine whether you are disabled. If you are not doing substantial gainful activity, we consider your symptoms, such as pain, to evaluate whether you have a severe physical or mental impairment(s), and at each of the remaining steps in the process. Sections 404.1520 and 404.1520a explain this process in detail. We also consider your symptoms, such as pain, at the appropriate steps in our review when we consider whether your disability continues. Sections 404.1579 and 404.1594 explain the procedure we follow in reviewing whether your disability continues.

(1) Need to establish a severe medically determinable impairment(s). Your symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, are considered in making a determination as to whether your impairment or combination of impairment(s) is severe. (See § 404.1520(c).)

(2) Decision whether the Listing of Impairments is met. Some listed impairment(s) include symptoms, such as pain, as criteria. Section 404.1525(f) explains how we consider your symptoms when your symptoms are included as criteria for a listed impairment.

(3) Decision whether the Listing of Impairments is equaled. If your impairment is not the same as a listed impairment, we must determine whether your impairment(s) is medically equivalent to a listed impairment. Section 404.1526 explains how we make this determination. Under § 404.1526(b), we will consider equivalence based on medical evidence only. In considering whether your symptoms, signs, and laboratory findings are medically equal to the symptoms, signs, and laboratory findings of a listed impairment, we will look to see whether your symptoms, signs, and laboratory findings are at least equal in severity to the listed criteria. However, we will not substitute your allegations of pain or other symptoms for a missing or deficient sign or laboratory finding to raise the severity of your impairment(s) to that of a listed impairment. If the symptoms, signs, and laboratory findings of your impairment(s) are equivalent in severity to those of a listed impairment, we will find you disabled. If it does not, we will consider the impact of your symptoms on your residual functional capacity. (See paragraph (d)(4) of this section.)

(4) Impact of symptoms (including pain) on residual functional capacity. If you have a medically determinable severe physical or mental impairment(s), but your impairment(s) does not meet or equal an impairment listed in Appendix 1 of this subpart, we will consider the impact of your impairment(s) and any related symptoms, including pain, on your residual functional capacity. (See § 404.1545.)

B. Intensity/persistence of subjective complaints rejected based solely on objective medical findings

C. Credibility evaluation based solely on the “sit and squirm” test

V. Vocational Errors

A. Decision concedes that previous work experience was not substantial gainful activity but then finds it constitutes past relevant work

B. Denial based on PRW but no specific finding/analysis as to the physical and mental demands of PRW

C. Presence of significant nonexertional limitations that affect occupational base at the given exertional level and no VE evidence

D. There are solely nonexertional limitations that do not fall within the parameters of SSR 85-15

E. Decision does not specifically identify acquired work skills; the skilled or semiskilled jobs within the claimant’s RFC to which they transfer considering, as appropriate, the degree of vocational adjustment; and the incidence of such jobs in the national economy

F. VE identifies unskilled jobs in response to hypothetical regarding jobs to which acquired work skills can transfer

G. Decision purports to rely on VE testimony on a given issue but audit of hearing indicates VE did not provide evidence on that issue

H. Decision does not consider/apply provisions regarding trial work period and extended period of eligibility

VI.Additional Malarkey

A. ALJ finds failure to follow prescribed treatment where there is none

1. Cases

"First, the impairment must be 'amenable to treatment to restore [the patient's] ability to work.' It must be shown not only that some palliative treatment is available, but also that the rejected treatment 'could be expected to restore [the] ability to work.' Schena v. Secretary of Health and Human Services, 635 F.2d 15, 19 (1st Cir. 1980). Nothing in the record ties the surgery specifically to a restoration of Mrs. Cassiday's ability to work.

Second, the treatment must be 'prescribed.' Recommendations, suggestions, and abstract opinions are not enough. 635 F.2d at 19."

Cassiday v. Schweiker, 663 F.2d 745, 749, CCH ¶ 17,901 (7th Cir. 1981)

"... It is true that depression is eminently treatable nowadays, by a variety of antidepressant drugs of which the best known is Prozac. ... and that a disabled person cannot obtain social security disability benefits if he or she refuses to follow a prescribed course of treatment that would eliminate the disability. Ehrhart v. Secretary of Health & Human Services, 969 F.2d 534, 538 (7th Cir. 1992). But so far as the record discloses, Wilder has never been prescribed a course of treatment for her depression. Nor has the Social Security Administration ever suggested that her condition might be treatable. In these circumstances, the possibility of treatment that would enable her to work is not a defense to the claim of benefits."

Wilder v. Chater, 64 F.3d 335, 336, 48 S.S.R.S. 712, 713, CCH ¶ 14,751B (7th Cir. 1995)