From an item that the Social Security Administration published in the Federal Register today:
We are republishing SSR [Social Security Ruling] 16–3p, a ruling that rescinded and superseded SSR 96–7p, with a revision detailing how we apply the SSR as it relates to the applicable date. We changed our terminology from ‘‘effective date’’ to ‘‘applicable date’’ based on guidance from the Office of the Federal Register. ...
This SSR, republished in its entirety, includes a revision to clarify that our adjudicators will apply SSR 16–3p when we make determinations and decisions on or after March 28, 2016. When a Federal court reviews our final decision in a claim, we also explain that we expect the court to review the decision using the rules that were in effect at the time we issued the decision under review. If a court remands a claim for further proceedings after the applicable date of the ruling (March 28, 2016), we will apply SSR 16–3p to the entire period in the decision we make after the court’s remand. ...Update: When I posted this, I expected that someone would quickly step up to explain the reason this has been published. I figured there had to be some important point that Social Security wanted to make that was just eluding me. So far, no one has stepped up to explain this. Maybe a lot of other people are mystified by this. I think it mostly has to do with federal court but I don't see how it's going to help the agency.
8 comments:
A few district courts were remanding for consideration of credibility under the new ruling as the ruling is a clarification of how symptom testimony is to be addressed and not an actual change in regulation. The agency dislikes this.
They agency is trying to have their cake and eat it too.
11:55, please explain in a little more detail. Are you saying that district courts are remanding decisions back because the decisions did not specifically address credibility and, instead, used some other term (supportability, consistency, etc.) to evaluate symptoms in the decisions? If so, that goes to show just how little the district courts/magistrates understand about disability law or how little they actually care about the law. Nowhere in the regulations does the term "credibility" appear. It only appeared in 96-7p, which was rescinded. I'm going to assume it's those judges that remand decisions over 90% of the time just because.
I would have thought reps would have loved the term credibility being removed from the lexicon since so many mean old ALJs were denying cases because they felt the claimant wasn't credible, whether through drug use, multiple felonies, or just not liking the person at the hearing.
it's just a revision to clarify when the new SSR should be applied. This is an issue every time SSA makes new policy.
Does it apply to pending claims or does is apply only to claims filed after the new policy comes into affect.
It's not trivial and makes quite a bit of difference to the decisions we issue.
@12:18
You missed the mark. I've not seen reversals due to a lack of the term "credibility," only recognition from a few district courts that the publishing of the new ruling shows a significant change in policy, and since the regulations themselves have not changed, this is evidence the Administration is acknowledging ALJs were inappropriately addressing a claimant's symptom testimony.
The term "credibility" does not need to be included in a decision, just an explanation as to why a claimant's symptom testimony was partially or fully rejected. The Court have historically termed this finding an "adverse credibility determination." I'm uncertain what they will call it now, but a change in agency policy, or even regulations, won't abrogate caselaw which predates the Social Security Act.
I have argued in district court that 16-3p applies to the actions of the OGC in that litigation, since 16-3p applies to "all components of the agency" and the OGC is part of the agency. Therefore, in a case where the ALJ denied primarily based on credibility factors that had nothing to do with the claimant's impairments (e.g., whether she filed her tax returns, whether she failed to report she was living with her boyrfriend--while her dual eligibility case was pending at the AC, etc.). I wanted to get at the fact that "credibility" is not in the regulations, and factors that have nothing to do with the impairment are irrelevant. In that particular case we do not have a decision yet, but in others the court has remanded based on 96-7 but mentioning 16-3p as well. Maybe the revision is to allow OGC to continue arguing that non-impairment related credibility factors are still applicable in these older cases. Seems a long way to go to win, but the agency is all about "getting to NO," not about "what is the right answer?"
8:50,
If the agency were about "getting to NO," as you suggest, then it would not have enacted SSR 16-3p in the first place. Except for a few claimant-friendly jurisdictions, courts have generally accepted the premise that someone who cheats on her taxes and lies about her living situation is likely to be less forthcoming about other things, like her functional abilities and limitations. Why would the agency even give you an opening to argue otherwise if it were truly hellbent on denial?
DDS, ALJ both used the phrase "Not entirely credible" in their denials. They have no reason not to believe me, other than they would have to approve me!
@4:55
Actually, that language is boilerplate contained in every denial and has no inherent meaning.
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