Step Five Is Not a Chance to Relitigate Step Three -- Shawver v. Kijakazi

In Social Security disability cases in federal court, the issues fall into predictable patterns. We examine what is not a separate issue in the context of Shawver v. Kijakazi. The issues addressed and rejected by the Court of Appeals:

    1. In a pre-March 27, 2017, application for benefits, the ALJ must state specific and legitimate reasons for rejecting the opinions of treating and examining physicians that are otherwise contradicted in the record. 

    2. The ALJ must state clear and convincing reasons for rejecting the claimant's testimony about the symptoms and limitations from the impairments established at step two of the sequential evaluation process. 

    3. The ALJ must state reasons supported by substantial evidence for rejecting the conclusion that the claimant has an impairment or combination of impairments that meet or equal a listed impairment. 

    4. Where the ALJ properly assesses the residual functional capacity at step three of the sequential evaluation process and propounds that RFC to the vocational witness the ALJ has no obligation to inquire about other limitations. 

The fourth issue is not an issue. It is never an issue. What the person submitted as a fourth issue is an argument for materiality of issues 1 and 2. The ALJ did not state legally adequate reasons for rejecting the physician opinion evidence or the claimant's testimony and those limitations were not included in the RFC or question to the vocational witness. The error is material. The question to the vocational expert, or the lack of the right question to the vocational expert, proves that the error in RFC assessment makes a difference in the outcome of the case. 

When does the issue that the vocational witness did not respond to a complete hypothetical constitute a separate issue? When the ALJ's question does not match the ALJ's RFC finding. That scenario constitutes a separate issue from any issue presented at the second half of step three, the assessment of RFC. This issue arose in Leach v. Kijakazi. The ALJ asked the witness to assume occasional changes but found that the claimant could tolerate few changes. Changes up to a third of the workday could amount to more than few. 

Save the incomplete hypothetical issue for fact patterns calling for that treatment. Use the incomplete hypothetical as a materiality argument when the RFC assessment is based on legal error or lacks the support of substantial evidence. 

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Suggested Citation:

Lawrence Rohlfing, Step Five Is Not a Chance to Relitigate Step Three -- Shawver v. Kijakazi, California Social Security Attorney (October 16, 2023)   https://californiasocialsecurityattorney.blogspot.com

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