Tuesday, May 17, 2016

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The Commissioner rescinded SSR 96-7p when she published SSR 16-3p.  The banner headline across SSR 96-7p says it all -- Superseded.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

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