More than in prior years, this year I’ve been focused on preparing “top ten” lists.  Regular readers may have noticed this. I think I’ve prepared 6 “top ten” lists in the past few months, summarizing the top New Jersey cases decided in 2010 in the various areas of law that my law firm practices in, such as Elder Law, Guardianship Law, Special Needs Trusts and Disability Planning, Family Law, Special Education and Probate Litigation / Will Contest cases. I think I most enjoyed researching and identifying the key cases decided in the past year and discussing how they affect New Jersey law.

I got my most recent brainstorm for another “top ten” list after reading the latest newsletter published by the National Organization of Social Security Claimants’ Representatives (NOSSCR).  NOSSCR is a nationwide association of over 4,000 attorneys who represent Social Security and Supplemental Security Income claimants, the majority of whom file claims for disability benefits. I’ve been a member of NOSSCR for years. NOSSCR’s latest newsletter contained an article listing the “top ten circuit court cases in 2010.” In the list of key Social Security disability cases below which I adopted from the NOSSCR article, I added a summary of and a hyperlink to each case.

As a former Social Security Claims Representative who has served as legal counsel for many claimants involved in Social Security disability appeals since graduating from Rutgers Law School in 1983, I enjoy keeping up with developments in Social Security and other public benefits laws. I hope readers find the following cases interesting.

1.   Berry v. Astrue, 622 F.3d 1228 (9^th Cir. 2010). Plaintiff, Daniel Berry, applied for social security disability benefits as a result of degenerative disk disease, degenerative arthritis on both hips, and chronic low back pain. After being denied benefits, Berry appealed, claiming that he could not return to his past relevant work as a courier driver because that job had a mandatory drug testing requirement which his prescribed pain medications would cause him to fail. After a hearing, the administrative law judge (ALJ) again denied benefits, finding that plaintiff was not disabled. The federal district court affirmed the ALJ’s decision. Both the ALJ and the district court concluded that any requirement that couriers be free of prescription pain medication would be a mere hiring practice, relevant to whether Berry could obtain his past work, but not relevant to whether he could perform the job duties. Plaintiff again appealed. The 9^th Circuit Court of Appeals reversed, holding that plaintiff was not capable of performing his past relevant work because the drug prescription for pain medication would disqualify him from performing his past relevant work.

2.   Hulsey v. Astrue, 622 F.3d 917 (8^th Cir. 2010). In the Hulsey case, plaintiff filed several claims for supplemental security income (“SSI”) benefits over a period of time. Plaintiff alleged she was disabled as a result of carpal tunnel syndrome, hypertension, headaches, depression, anxiety, and borderline intellectual functioning. Plaintiff was repeatedly denied SSI benefits. At a hearing, a vocational expert (“VE”) testified in response to a hypothetical presented by the ALJ that plaintiff would be able to perform cashier or housekeeping work. On appeal, Hulsey contended that the ALJ’s hypothetical question to the vocational expert did not adequately account for Hulsey’s borderline intellectual functioning and understated the effects of her other mental impairments. However, the appeals court affirmed the denial of benefits. The court analyzed cashier and housekeeping work identified by the VE under the criteria set forth in the Dictionary of Occupational Titles (“DOT”) which codes each occupation with a “reasoning development level,” corresponding to the ability to follow instructions and solve problems that is required for satisfactory job performance. The court held that plaintiff could perform the job duties of cashier and housekeeping work which carries the lowest possible reasoning development level in the DOT.

3.   Lockwood v. Comm’r, Social Security Admin., 616 F.3d 1068 (9^th Cir. 2010). Social security regulations divide claimants into three age categories: younger persons (those persons under age 50), persons closely approaching advanced age (those persons age 50-54), and persons of advanced age (those persons age 55 or older). Where a claimant is within a few days or a few months of reaching an older age category, an ALJ has discretion, but is not required, to use the older age category. Here, plaintiff was one month and three days from turning 55 years old (and, thus, from becoming a “person of advanced age”) when the ALJ denied plaintiff’s claim for social security disability benefits. The ALJ treated plaintiff as being a “person closely approaching advanced age”–instead of using the older age category—and concluded that plaintiff was not disabled. It was admitted that the ALJ would have been required to conclude that plaintiff was disabled if the ALJ had treated plaintiff as being a “person of advanced age.” On appeal, plaintiff contended that the ALJ committed reversible error by failing to explain in her decision why she classified plaintiff as a “person closely approaching advanced age” rather than that of a “person of advanced age.” On appeal, the appellate court affirmed the denial of benefits. The court held that there is no regulation requiring that the ALJ explain in her written decision why she did not use an older age category, although the ALJ is required by regulation to consider whether to use an older age category in a borderline situation. Thus, the court determined that the ALJ did not err when she did not address in her written decision the fact that plaintiff was just over one month from being a “person of advanced age.”

4.   Luna v. Astrue, 623 F.3d 1032 (9^th Cir., 2010). In this case, plaintiff filed for disability benefits from the Social Security Administration (“SSA”) and for SSI benefits. Her initial application was denied, and plaintiff appealed. While the appeal was pending, plaintiff filed another application for SSA and SSI benefits. Her second application was granted. The Notice of Award indicated that the Commissioner found plaintiff to be disabled one day after the date she was found not to be disabled based on her first application. On appeal, plaintiff argued that the Commissioner’s grant of benefits in response to her second application clearly indicated that she was disabled for the earlier time period covered by her first application as well, so the proper remedy would be a remand ordering that benefits be paid for that earlier time period. The federal appellate court agreed to remand the case to the Commissioner of Social Security, but directed the lower court to conduct further factual proceedings rather than to order the payment of benefits. The appeals court held that it could not decide “on the record before us whether the decisions concerning Luna were reconcilable or inconsistent … .  [Since] [t]here was only one day between the denial of Luna’s first application and the disability onset date specified in the award for her successful second application, remand for further factual proceedings was an appropriate remedy.”

5.   McClesky v. Astrue, 606 F.3d. 351 (7^th Cir. 2010). Plaintiff, Denise McClesky, appealed from the district court’s affirmance of SSA’s denial of her claim for disability benefits. Plaintiff suffers from major depression and has limited use of her fingers, hands, and arms because of numbness, weakness, and pain as a result of fibromyalgia. A vocational expert testified at her administrative hearing that plaintiff would be physically capable of doing two jobs: surveillance system monitor and telemarketer. Within a month after the hearing, however, plaintiff’s lawyer submitted a letter to the ALJ from another vocational expert stating that all security guards and surveillance system monitors require a license from the Department of Homeland Security and that a person would need training to qualify for such a license. Although the ALJ considered the post-hearing evidence, on appeal the SSA argued that the evidence submitted after the hearing should not have been considered by the ALJ and should not be considered by the courts. The 7^th Circuit reversed and remanded, holding that, under federal regulations, the ALJ “may … reopen the hearing at any time before he or she mails a notice of the decision in order to receive new and material evidence. … [The implication is that] evidence can be submitted up to the date an ALJ decision is issued.”

6.   McLeod v. Astrue, 627 F.3d. 1170 (9^th Cir. 2010). In this case, plaintiff, Gene R. McLeod, applied for SSI benefits based on disability. His claim was denied. On appeal, plaintiff argued that the ALJ erred by failing to develop the record adequately in two respects: first, plaintiff claimed that the ALJ should have requested more explanation from two of his treating physicians at the Department of Veterans Affairs (“VA”) about his ability to work. Second, plaintiff argued that the ALJ should have obtained whatever VA disability rating McLeod might have. On the first claimed error, the circuit court ruled that an “ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence,” which was not the case here. Second, because the record suggested that McLeod had some sort of VA disability rating, yet does not show what it was, the ALJ had a duty to inquire into the matter since “the ALJ must consider the VA’s finding in reaching his decision” and the ALJ “must ordinarily give great weight to a VA determination of disability.” Significantly, the court also ruled that the “harmless error” analysis in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), used in VA cases, also applied in social security disability appeals. As a result, the 9^th Circuit reversed and remanded the case.

7.   O’Connor-Spinner v. Astrue, 627 F.3d. 614 (7^th Cir. 2010). Plaintiff, Louquetta R. O’Connor-Spinner, appealed from an order of the district court upholding SSA’s denial of her claim for SSI and SSA disability benefits based upon depression and a variety of physical ailments. Plaintiff contended, among other claims, that the ALJ, who denied her application for benefits, erred by failing to include her limitations on concentration, persistence and pace in the hypothetical he posed to a VE. She submits that this omission yielded flawed vocational evidence and an unsupported conclusion that she could obtain competitive employment. At the administrative hearing, a VE testified, in response to a series of hypothetical questions posed by the ALJ. However, none of the hypotheticals included a limitation on concentration, persistence and pace, although later in his written decision the ALJ listed this limitation in assessing plaintiff’s residual functional capacity. Neither did the ALJ include any limitation on receiving instruction and responding appropriately to supervisors. The appeals court reversed and remanded, holding that the ALJ should refer expressly to limitations on concentration, persistence and pace in the hypothetical in order to focus the VE’s attention on these limitations and assure reviewing courts that the VE’s testimony constitutes substantial evidence of the jobs a claimant can do.

8.   Spiva v. Astrue, 628 F.3d 346 (7^th Cir. 2010). In this case, although the ALJ found that plaintiff had a combination of severe impairments including mood disorder, schizophrenia, dysthymia, psychosis, depression, alcohol and cannabis abuse, and attention deficit disorder, she concluded that plaintiff was not totally disabled because he could perform the last job he had held, and lots of other jobs (unspecified) as well. However, the ALJ’s decision was not supported by the evidence adduced at the hearing. The government argued that any deficiency in the ALJ’s opinion amounted to no more than harmless error because enough evidence could be found in the record to establish that the ALJ might have reached the same result had she considered all the evidence and evaluated it as the government’s brief did. The 7^th Circuit disagreed, holding that accepting the government’s position “would displace the responsibility that Congress has delegated to the Social Security Administration–the responsibility not merely to gesture thumbs up or thumbs down but to articulate reasoned grounds of decision based on legislative policy and administrative regulation–to the Justice Department … .” As a result, the case was reversed and remanded for further proceedings.

9.   Thomas v. Comm’r, Social Security Admin., 625 F.3d 798 (3d. Cir. 2010). Plaintiff, Sade N. Thomas, suffers from epilepsy and a variety of other health issues, including gastritis, headaches, hypoglycemia, anemia, allergies, and eczema. Thomas filed claims for SSA and SSI disability benefits, which were repeatedly denied. During the pendency of her appeal, the ALJ issued an amended decision explaining his rationale for finding that Thomas did not meet the disability standard. The ALJ did not give the parties an opportunity to be heard, via a hearing or through submissions, prior to rendering the amended decision. Thereafter, the federal district court filed an amended order reversing the agency’s decision denying Thomas benefits and remanding the case to SSA. Thomas contends that the district court’s order was in error because it contained a limited remand that merely instructed the ALJ to supply an explanation for a previously rendered decision, rather than directing that the ALJ give the parties an opportunity to be heard and fully develop the record. The 3^rd Circuit agreed, holding that, under Burnett v. Commissioner of Social Security Administration, 220 F.3d 112, 119 (3d Cir. 2000), the ALJ had to set forth the reasons for his decision to ensure that there is sufficient development of the record and explanation of findings to permit meaningful judicial  review.

10.   Vossen v. Astrue, 612 F.3d. 1011 (8^th Cir. 2010). In the Vossen case, plaintiff, Timothy C. Vossen, suffered injuries in a motor vehicle accident in which both of his knees went through the dashboard of his automobile. Although the ALJ received the medical records of Vossen’s treating physicians, which are entitled to the greatest weight under SSA regulations and who opined that Vossen was totally disabled and unable to work, the ALJ instead gave the greatest weight to the opinions of the non-examining medical expert, who concluded that Vossen was not disabled. The ALJ did so because the ALJ questioned the authenticity of the treating physician’s opinion regarding Vossen’s ability to sit and stand during a normal workday. The appellate court reversed, holding that to the extent the ALJ questioned the authenticity of the treating physician’s report, the ALJ should have contacted the treating physician for clarification.