The Social Security Administration (SSA) has issued a ruling explaining how cases pending at the Appeals Council will be adjudicated when the claimant has raised a timely challenge to the appointment of an administrative law judge under the Appointments Clause of the United States Constitution.

In Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018), the United States Supreme Court held that the Appointments Clause of the United States Constitution requires that administrative law judges be appointed to their positions by either the President, a court of law of the department head.  On July 16, 2018, the Acting Commissioner of Social Security ratified the appointment of Social Security administrative law judges and administrative appeal judges and approved those appointments on her own.

The Appeals Council will grant a claimant’s request for review in cases where the claimant timely requests Appeals Council review of an administrative law judge decision or dismissal issued before July 16, 2018 and raises, either at the Appeals Counsel level or previously at the administrative law judge level, a challenge under the Appointments Clause to the authority of the Administrative Law Judge who issued the decision or dismissal in the case.

When the Appeals Counsel grants review in this situation, the Appeals Council will conduct a new and independent review of the claims file and either remand the case to an administrative law judge other than the judge who issued the decision under review, or issue its own new decision about the claim covering the period before the date of the administrative law judge’s decision.  In its review, the Appeals Counsel will not presume that the prior decision was correct.

In cases where the administrative law judge dismissed a request for hearing, the Appeals Council will vacate the dismissal order.  It will then either decide whether the hearing request should be dismissed or remand the case to another administrative law judge to determine that issue.

In these cases, the claimant may ask to file briefs with the Appeals Council.

When the Appeals Council grants review, it will mail a notice to all parties stating the reasons for the review and the issues to be addressed.  The Appeals Council will either remand the case to a different administrative law judge, issue a new, independent decision, or issue an order dismissing the hearing request.  (SSR 19-01p, March 15, 2019.)

The Social Security Administration (SSA) has issued a new ruling about evaluating disability cases involving obesity.  This ruling rescinds and replaces Social Security Ruling 02-01p.

Obesity can be a medically determinable impairment when established by objective medical evidence from an acceptable medical source.  Social Security will not use a diagnosis or a statement of symptoms to establish a medically determinable impairment.  Signs and laboratory findings that may establish obesity as a medically determinable impairment include measured height and weight, measured waist size and body mass index, each measured over time.

Obesity is defined as a body mass index of 30.0 or higher.  No specific weight or body mass index establishes obesity as a medically determinable impairment or a severe impairment for purposes of the Social Security disability program.  If a person’s body mass index is within the normal range, they may still have obesity if their waist measurement is high.

In determining whether obesity is a severe impairment, Social Security considers all symptoms such as fatigue or pain that could limit functioning.  Social Secuity also considers functional limitations from obesity and any other physical or mental impairment.  If a person’s obesity, alone or in combination with other impairments, significantly limit physical or mental ability to do basic work activities, the impairment is severe.

Although obesity is not a listed impairment, the functional limitations caused by medically determinable impairment of obesity, alone or in combination with another impairment, may medically equal a listing.

Social Security must consider the limiting effects of obesity when assessing a person’s residual functional capacity.  Social Secuity assesses residual functional capacity to show the effect of obesity upon the person’s ability to perform routine movement and necessary physical activity within the work environment.  The combined effects of obesity with another impairment may be greater than the effects of each impairment considered separately.  (SSR 19-02p, May 20, 2019.)

The Social Security Administration (SSA) has issued a new ruling about the effect of failure to follow prescribed treatment.  In general, an individual who is otherwise disabled is not entitled to Social Security Disability or Supplemental Security Income benefits if they do not follow prescribed treatment that would be expected to restore the ability to perform substantial gainful activity without good cause.

SSA determines whether an individual has failed to follow prescribed treatment when:

1)  The individual would otherwise be eligible for benefits

2)  There is evidence that the individual’s own medical source prescribed the treatment for the impairment upon which the disability finding is based.  Prescribed treatment means medication, surgery, therapy, use of durable medical equipment or use of assistive device.  Prescribed treatment does not include lifestyle modifications such as dieting, exercising or smoking cessation.  SSA considers any evidence of prescribed treatment including prescription forms and medical records.

3)  There is evidence that the individual did not follow the prescribed treatment.

If all these conditions exist, then SSA determines whether the prescribed treatment, if followed, would be expected to restore the individual’s ability to perform substantial gainful activity, and whether the individual has good cause for not following the prescribed treatment.  Good cause includes religion, cost, incapacity that means the individual is unable to understand the consequences of failure to follow prescribed treatment, medical disagreement among individual’s own medical sources, intense fear of surgery, prior unsuccessful major surgery, high risk of loss of life or limb, or risk of addiction to opioid medication.  Good cause does not include the individual’s allegation that they were unaware of the prescribed treatment unless the individual shows incapacity.  If either of these criteria is met, then SSA will not find failure to follow treatment.

To develop failure to follow prescribed treatment, SSA can contact the medical source. SSA can purchase a consultative examination or obtain testimony from a medical expert but is not required to do so.

For listings, if SSA finds failure to follow prescribed treatment without good cause, SSA continues by evaluating residual functional capacity.  For listings, SSA will not find failure to follow prescribed treatment if disability is based on a listing that requires only the presence of laboratory findings, or the listing requires consideration of whether the individual was following a specific treatment.

For residual functional capacity, SSA will find that the individual is disabled if they would be unable to perform substantial gainful activity even if they had followed prescribed treatment.

SSA can reopen a favorable determination or decision if it discovers that it did not apply failure to follow prescribed treatment correctly.

For continuing disability reviews, SSA will make a failure to follow prescribed treatment finding when the individual’s medical source prescribes a new treatment since the last favorable determination without good cause.  SSA also will find failure to follow prescribed treatment for a new impairment alleged during the continuing disability process and there is evidence that the individual did not follow prescribed treatment without good cause.

For drug and alcohol cases where SSA finds that drugs and alcohol are not material to the disability determination, a failure to follow prescribed treatment, SSA does failure to follow prescribed treatment determination only for impairments other than drugs and alcohol.  (SSR 18-03, October 29, 2018.)

The Social Security Administration (SSA) has issued a new ruling about determining the onset date for Social Security Disability and Supplemental Security Income claims.  The established onset date is the earliest date that the claimant meets the both the definition of disability and the non-medical requirements for benefits eligibility.

SSA first determines the potential onset date, which is the earliest date that the claimant meets non-disability requirements.  If the claimant meets the statutory definition of disability on the potential onset date, that date is used as the established onset date.

For impairments that result from a traumatic injury or other traumatic event, the onset date is the date of the traumatic event even if the claimant worked on that date.

Non-traumatic impairments are impairments that are not expected to change in severity over time, impairments that are expected to improve over time, or impairments that are expected to worsen over time.  For non-traumatic or exacerbating and remitting impairments, SSA determines the first date that the claimant meets the definition of disability.  SSA reviews the evidence and considers the nature of the impairment, the severity of signs, symptoms and laboratory findings, the longitudinal history and course of treatment, the length of the impairments exacerbations and remissions if applicable, and any statements by the claimant.  The onset date can predate the earliest recorded medical examination.

SSA considers evidence from other non-medical sources such as family, friends or former employers only if SSA cannot obtain other medical evidence and SSA cannot reasonably infer the onset date from the medical evidence in the file.

At the hearing level, the Administrative Law Judge (ALJ) may call upon a medical expert but the decision to call a medical expert is entirely in the ALJ’s discretion.  The claimant cannot require the ALJ to call a Medical Expert.

If the claimant has both a traumatic and non-traumatic impairments, SSA considers all of the impairments in combination when determining the onset date.

Generally, the claimant’s established onset date is not before the last day the claimant performs substantial gainful activity.  However, SSA can determine the established onset date to be before or during an unsuccessful work attempt.

The established onset date can be in a previously adjudicated period if the claimant meets the definition of disability and applicable non-medical requirements during the previously adjudicated period.  However, it is in the adjudicator’s discretion whether to reopen a prior claim.  (SSR 18-01p, October 2, 2018.)