Wednesday, April 26, 2017

Social Security Rulings 96-7p and 16-3p

The Commissioner published Social Security Ruling 96-7p to establish the bases on which the agency will assess the credibility of claimants on July 2, 1996.  The Commissioner entitles the interpretive ruling as, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an individual's Statements.  The ruling uses the words credibility, credible, or other form of the word 52 times. 

The Commissioner published Social Security Ruling 16-3p effective March 28, 2016. The purpose of the ruling appears under the heading -- Purpose:

We are rescinding SSR 96-7p: Policy Interpretation Ruling Titles II and XVI Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements and replacing it with this Ruling. We solicited a study and recommendations from the Administrative Conference of the United States (ACUS) on the topic of symptom evaluation. Based on ACUS's recommendations and our adjudicative experience, we are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character. Instead, we will more closely follow our regulatory language regarding symptom evaluation.
(We discussed this last year.)  There it is -- credibility is a stranger to the regulations.  The character of the person, nestled at the heart of the credibility analysis, has no connection to the two-part analysis of the claimant's subjective perception of limitation on the ability to function.

The question heats up because the courts have thousands of cases pending where the ALJ corps used the credibility analysis from SSR 96-7p to trash the claimant's testimony.  The Commissioner now defends those decisions as compliant with SSR 96-7p and the SSR 16-3p does not apply to decisions made prior to March 28, 2016.  I call BS.

The rulings do not have force of law.  They warrant deference only to the extent that they interpret either the statute or the regulations.  When the rulings interpret the statute or regulations, they receive deference unless plainly erroneous or inconsistent with the statute or regulations.  Quang Han Van v. Bowen; Holohan v. Massanari   Because SSR 96-7p lacks force of law, any compliance with a discarded interpretation of the regulations or statute is irrelevant.  The court does not enforce the ruling; the court enforces the regulation as interpreted by the ruling under the doctrine of deference.  Auer v. Robbins ; see also Social Security Ruling 00-1c (Supreme Court defers to a policy memorandum).

 While the rulings bind the ALJ, a rescinded ruling does not bind anyone.  Because the Commissioner states as a matter of executive discretion that SSR 96-7p does not reflect an accurate reading of the regulation and is actually inconsistent with the regulation, no court should use it for guidance.  The Commissioner informs the public and the court that SSR 96-7p is wrong.  The proper inquiry turns on consistency with the medical evidence.  SSR 16-3p.  To the extent that an ALJ decision rejected limitation testimony based on credibility rather than consistency with the medical evidence, the ALJ erred.  The inquiry must turn to materiality. 

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