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The Commissioner rescinded SSR 96-7p when she published SSR 16-3p.  The banner headline across SSR 96-7p says it all -- Superseded.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

Hey Courts -- Apply the Law in Effect at the Time of Decision

Not really sure how a pernicious idea that it just would not be fair to review an ALJ decision based on the new regulations, ruling, POMS, HALLEX, or teletype weaseled its way into the cases -- but it has and it is wrong.  It is indefensibly wrong.  

In Lockwood v. Commissioner, the Ninth Circuit observed as its very first observation that the policy pronouncement interpreting the regulation about the impact of age was not in effect at the time of the ALJ decision.  In Chapo v. Astrue, the Tenth Circuit started a long string of cases for the proposition that the court ought to cite and review the ALJ decision based on the regulations in effect at the time of the ALJ decision.  In Rice v. Barnhart, the Seventh Circuit applied a deleted listing.  

In Howard ex rel. Wolff v. Barnhart and  Garrett ex rel. Moore v. Barnhart, the Ninth and Eighth Circuits conceded to the Commissioner's request to apply the interim final rules to children's disability cases decided under those regulations because of changes in the program instead of the final rules promulgated with a delayed effective date.   That application of the rules in effect at the time of the final decision instead of the rules in effect at the time of the court review had a specific and reasoned request -- to prevent the remand of every childhood disability case that would become pending after the final rules took effect.  So did Flener ex rel. Flener v. Barnhart, the Seventh Circuit just never told the public "why."   But those are different issues -- the Commissioner had a good reason and asked that the new rules not apply to all pending cases.  

 The general rule requires the courts to apply the law in effect at the time of the review -- not the law in effect at the time of the decision under review.  Henderson v. U.S.  It isn't like Henderson forged new ground.  Henderson relied on Thorpe v. Housing Authority of Durham.  The modern doctrine to apply the law in effect at the time of the appeal dates back to the founding of the nation.  United States v. Peggy Schooner.  

The author of the wiki article about Peggy Schooner states that a treaty between the United States and France about ships seized at sea during an undeclared war had retroactive effect.  That implication, suggestion, or statement is just wrong.  The treaty applied to pending cases not yet final.  Retroactive application changes the legal result of matters already final.  Application to all pending matters concerns an evenhanded resolution of all matters that will come before the court once the new legal anchor gets set.  

For Lockwood, the application of a different interpretation of a stable but ambiguous regulation has passed.  But Lockwood did not explain or address why it should not apply the interpretation of the regulation in effect at the time of decision.  And don't fret that Lockwood constitutes law of the circuit -- it doesn't.  Mutual Life Ins. Co. v. Lipp.