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. 

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

The Commissioner rescinded SSR 96-7p when she published SSR 16-3p.  The banner headline across SSR 96-7p says it all -- Superseded.

The demise of one of the Process Unification Rulings -- the 96 series.  The rulings that sought to bring harmony between the initial, reconsideration, hearings, and review processes.  With the demise of SSR 96-7p, the Commissioner changes the interpretation of the stable regulation.  So, what was wrong with SSR 96-7p?

The first thing wrong with the old ruling was its title, emphasizing credibility.  It is not that the person has general credibility, but rather whether the symptoms of a medically determinable impairment could cause the limitations described.  The Commissioner phrases it:

Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities.

 The Commissioner keeps the two-step process of first establishing the medically determinable impairment.  That keeps with the statutory mandate that every disabling impairment get proved by clinically accepted laboratory or diagnostic techniques.  Then the adjudicator assesses the subjective perception of pain -- are the symptoms within the range of reasonable?

The practical effect of the ruling is to remove certain cards from the adjudicators deck of reasons to reject the complaints of limitation.  If it isn't about credibility, then criminal history should not matter.  The Commissioner explains:

our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation

 Nor should the dearth of a work history matter in terms of evaluating symptoms.  There in paragraph 2.b, the Commissioner tells the adjudicator to consider "prior work record."  So we can't get too excited about the death of the credibility finding.  Most of these cases turn on the residual functional capacity analysis.  To that point, the Commissioner directs the adjudicators:

We consider the individual's symptoms when determining his or her residual functional capacity and the extent to which the individual's impairment-related symptoms are consistent with the evidence in the record.

 SSR 16-3p changed the lay of the excess pain analysis.  Credibility is not the focus but some of the factors will continue to have a credibility flavor.  Shed a tear for the death of 96-7p and hail the new regent, SSR 16-3p.

Just in case you were wondering -- yes, SSR 16-3p probably applies to pending cases.  The application of a new interpretation to a stable regulation (20 CFR secs. 404.1529 and 416.929) applies unless the claimant would be prejudiced by application of the new interpretation.  Montgomery Ward & Co. v. FTC. Other circuits have their own variation of the retroactivity analysis.  This is the California Social Security Attorney blog. 

Aarestad v. Commissioner

I know, unpublished opinions are not precedent and don't matter much.  Unless of course you are one of the litigants in an unpublished opinion.  Aarestad v. Commissioner is a bad decision.

Aarestad applied for widow's benefits.  The Court held that she "worked only sporadically before the alleged onset of disability (which suggests that her decision not to work was not based on disability) ..."  Did I mention that Aarestad applied for widow's benefits?  Of course she worked sporadically.  She and her deceased husband made a socio-economic decision that she not work because not everyone has abandoned the one-income household model.  Some couples don't have to send both people back to work.

There are clear advantages to a single income household.  Not only the obvious with raising children but also in the mundane day-to-day of living.  If both people work, the chores of cooking, cleaning, and laundry mean that one or both members of the family are working not 40 hours per week but more like 60 hours per week.  That usually defaults to the wife, which is why married men live longer than their bachelor friends and married women don't live as long as their single friends.  Life expectancy is how we make plans.

There is a discrete difference between a lifetime of sloth and a legitimate sociological choice that is in the cultural norm.  A history of sloth can form a legitimate basis for discounting a claim of disability.  A legitimate choice to live on the wages of one partner in the marriage while the other stays home is not a history of sloth or a legitimate basis for discounting the surviving spouse's testimony.

A rule of law is based on the assumptions that under-gird that rule.  Failing to recognize the nuances of the rationale behind a rule of law is dangerous not only to the person involved but to future cases.  The infection starts in misapplication in unpublished opinions, spreads into published opinions, and pretty soon the law becomes absurd.  Charging the stay-at-home partner for a life decision that finds solid cultural and sociological underpinnings is an attack on the social fabric and the family.  The Court needs to divorce itself from the dangerous path that Aarestad takes.  Whether she otherwise deserved to win is a different story but piling on bad reasons is the kind of hyperbole and exaggeration that we all find "not credible."