Argue and present evidence at your hearing that you meet or equal a listing

In a recent decision issued by the 9th Circuit Court of Appeals, the Court indicated that a claimant must raise the issue that he or she equals the listings, at the time of a hearing in front of an Administrative Law Judge (“ALJ”) otherwise the Court will conclude that the ALJ’s failure to discuss this in a decision is not an error.

In Kennedy v. Colvin, 738 F.3d 1172 (9th Cir. 2013), the claimant had sickle cell anemia and borderline mental retardation as well as other impairments.  A psychologist who examined the claimant found that the claimant had a verbal score IQ score of 71, a performance IQ score of 78 and a full-scale of 72.

One may be found disabled if he or she meets or equals any one of “The Listings.”  The listings are impairments which Social Security has already determined to be disabling.  If one can show that he or she meets or equals a listed impairment, he or she may be considered disabled.  There is a listing for “intellectual disability,” known as listing 12.05.  One can meet this listing with a valid verbal, performance or full IQ of 60 through 70 and meet other requirements.  The claimant in Colvin argued on appeal that although his IQ score was one point above the level required in Listing 12.05, he equaled the listing because his physical impairments were so severe that they compensated for the one point difference between his IQ score and the score required under the listing.

The Court did not find in Kennedy’s favor but this is not the part that interested me in this case.  What interested me is that the Court penalized him for not arguing that he equaled the listing when he was at his hearing in front of the ALJ, although he argued it on appeal.  Citing to another case, Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005), the Court found that the an ALJ is “not required to discuss the combined effects of a claimant’s impairments or compare them to any listing in an equivalence determination, unless the claimant presents evidence in an effort to establish equivalence.”  Here the claimant “never presented evidence or advanced an argument for equivalency.”  (Kennedy  at 1178.)  The 9th Circuit never indicated whether or not Mr. Kennedy was represented at his hearing.  I find it somewhat shocking and possibly a due process violation if a claimant is unrepresented. I cannot believe a court would find that a claimant is required to know what the listings are and then present and argue that he or she equals a listing at the hearing if unrepresented.

To be fair, the Court’s decision on this point is limited to cases in which a claimant is trying to show that he or she “equals a listing.”  Presumably if a claimant meets the listing, the ALJ is required to discuss the reasons in the decision why he or she does or does not.

What I take away from this case is that it is important in every case to always present evidence and argue that you either meet or equal a listing.   Otherwise if you fail to do so,  you may be precluded from establishing an equivalency argument on appeal.

Update on immigration issues for Social Security practitioners

Last weekend I gave a presentation along with my colleague, David Wright, at a conference of Social Security practitioners.   The conference was geared towards experienced practitioners who practice in the 9th Circuit (California, Alaska, Hawaii, Arizona, Washington and Oregon.)  Both David and I practice immigration law and Social Security disability law so we spoke about immigration issues that we see in Social Security disability cases.

We discussed how to analyze a case for the immigration issues and what to look for before taking on representation of immigrants.  We discussed some new developments in the law such as the extension of eligibility of SSI to nine years instead of seven for refugees and other humanitarian immigrants.   We reviewed some of the common immigration documents and how to obtain more information about a potential client’s immigration status by doing a FOIA.

A copy of our written article appears on my California immigration lawyer blog here.  I still have 25 booklets referred to in footnote 3  –  “Guide to Selected U.S. Travel and Identity Documents, ”  published by U.S. Immigration Customs and Enforcement.   I would be happy to send them for free to the first 25 people who contact me, as long as the mailing address is in the United States.

9th Circuit rules that claimant’s pain testimony is true absent ALJ providing specific clear and convincing reasons for rejection

law-booksOn November 5th, 2008, the 9th Circuit Court of Appeals in San Francisco, CA, issued a new decision very helpful to claimants.  In Vasquez v. Astrue, —F.3d— —-(No. 06-16817, 2008), the Court held that absent a finding by the Administrative Law Judge that the claimant was not credible, a claimant’s symptoms of pain must be taken as true.

In Vasquez, the claimant testified that she was in chronic pain due to a back injury.  She mentioned her pain on Social Security forms and it was collaborated by her doctors in their reports.

When evaluating a claimant’s subjective complaint of pain, the Court noted that the Administrative Law Judge (“ALJ”) must use a two part test.  First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.  Second, if the claimant meets the first part and there is no evidence of malingering, then the ALJ can only reject the testimony about the severity of the symptoms if she gives “specific, clear, and convincing reasons” for the rejection.

In this case, the Court noted that the ALJ did not cite any evidence of malingering.  She was therefore required to provide specific, clear and convincing reasons, by pointing to facts in the record, to support an adverse credibility finding.  She did not.

The Court then went on to discuss what the appropriate judicial response is when the ALJ fails to give adequate justification for rejecting a claimant’s pain testimony.  It is the law that the Commissioner of Social Security must accept a claimant’s subjective pain testimony if the ALJ fails to articulate sufficient reasons for rejecting it.  This is known as the “credit-as-true” rule.  When acceptance of the tesimony would result in a finding of “disabled,” and there are no outstanding issues that need to be resolved, the Court must grant the case and order benefits to be paid.  There is a split in the circuit, however, as to whether the the application of this rule is mandatory or discretionary when there are other outsdanding issues that must be resolved before benefits can be paid.

In this case, the Court found  that there were other outstanding issues to be resolved.  Nevertheless, they found other factors which merited a mandatory applciation of the rule.  Specifically, the Court found the claimant’s advanced age and the six year delay from the time the claimant filed until now to be positive factors that merited an application of the rule.  The Court remanded the case with the specific instruction for the ALJ to accept Ms. Vasquez’s pain testimony as true when determining whether she was entitled to benefits.