Gavin Buck v. Nancy Berryhill

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FILED OPINION (A. WALLACE TASHIMA, JACQUELINE H. NGUYEN and DONALD E. WALTER) REVERSED AND REMANDED. Judge: AWT Authoring, FILED AND ENTERED JUDGMENT. [10568220] --[Edited: District Court Number corrected. 09/05/2017 by TYL]

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Careers at Pioneer | Pioneer Human Services Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 1 of 11 Donate SEARCH Counseling & Treatment Residential Reentry Housing Get Involved Job Skills Careers at Pioneer Home / About / Careers at Pioneer Since being founded in 1963, Pioneer Human Services has expanded from a single Washington State. Pioneer provides an array of treatment, housing, job training and employment services for people who are re-entering society from prison or jail and chance for change for people who want to turn their lives around. , Despite our growth and progress, our core values and purpose have not wavered. st 30 Augu Everyone deserves an opportunity to achieve their potential including our employees! ed rchiv 76, a We are committed to creating a dynamic work environment that encourages 359 . 14professional and personal growth. l, No il cited in v. Buck yh Berr We are always looking for talented individuals who are passionate about making a dedicated to helping people as you are, you’ve found it! -- All Cities - Cities Search Find Job by ID Go Select options from the menus above and click "Search" to view current openings that fit your criteria. http://pioneerhumanservices.org/about/career[8/30/2017 9:31:48 AM] 2917 Manufacturing & Enterprises About Careers at Pioneer | Pioneer Human Services Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 2 of 11 Applicant Tracking System Powered by From our health plan and wellness program, to our tuition reimbursement and ——————————————— 7 , 291 May 2017 May is Mental Health Month dA hive cited ck in Bu rr v. Be 35 . 14- No yhill, arc 976, This year for May is Mental Health Month, MHA is talking about Risky Business. It is important to educate people about habits and behaviors that increase the risk of developing or exacerbating mental illnesses, or could be signs of mental health problems themselves. Get involved! http://www.mentalhealthamerica.net/may ——————————————— Contact Apply for Jobs Privacy Policy http://pioneerhumanservices.org/about/career[8/30/2017 9:31:48 AM] t 30 ugus Careers at Pioneer | Pioneer Human Services Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 3 of 11 Supported by United Way of King County Health Information Privacy Notice Newsletter Sign-Up Board Login 2017 © Copyright Pioneer Human Services, all right reserved. 7 , 291 dA hive cited ck in Bu rr v. Be http://pioneerhumanservices.org/about/career[8/30/2017 9:31:48 AM] 35 . 14- No yhill, arc 976, t 30 ugus SSA - POMS: DI 25020.010 - Mental Limitations - 09/14/2012 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 4 of 11 Social Security SEARCH MENU LANGUAGES SIGN IN / UP Program Operations Manual System (POMS) Effective Dates: 09/14/2012 - Present Previous | Next TN 6 (05-99) DI 25020.010 Mental Limitations A. Policy 1. Nonexertional vs. Exertional Mental limitations are generally considered to be nonexertional, but depression and conversion disorders may also limit exertion. 2. Medical Listing Not Met or Equaled 7 , 291 dA hive arc 976, t 30 ugus 5 14-3 N . l, oroequal one of the medical listings for mental impairments a. It cannot be assumed that a failure to rryhil meet Be k v.least unskilled work. equates with the capacity itoBuc at n do cited b. If a medical listing is not met or equaled, the process must continue to consider whether the individual can meet the mental demands of PRW and, if not, whether he or she has the ability to adjust to other work considering his or her remaining mental and other functional capacities and vocational factors. 3. Mental Demands of Unskilled Work a. The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to: understand, carry out, and remember simple instructions; make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions. respond appropriately to supervision, coworkers and work situations; and deal with changes in a routine worksetting. b. A substantial loss of ability to meet any of the basic mental demands listed in A.3.a. above. severely limits the potential occupational base and thus, https://secure.ssa.gov/poms.nsf/lnx/0425020010[8/30/2017 9:32:15 AM] SSA - POMS: DI 25020.010 - Mental Limitations - 09/14/2012 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 5 of 11 would justify a finding of inability to perform other work even for persons with favorable age, education and work experience. NOTE: “Substantial loss” cannot be precisely defined. It does not necessarily relate to any particular adjective, number, or percentage. In practical terms, an individual has a substantial loss of ability to perform a basic mental activity when he or she cannot perform the particular activity in regular, competitive employment but, at best, could do so only in a sheltered work setting where special considerations and attention are provided. This requires professional judgment, on the basis of the evidence in file in each case. The impairment in a claim of this type may meet or equal the listed medical criteria. Therefore, before making a determination that includes vocational evaluation, the adjudicator should discuss the case with a psychiatrist or psychologist to learn whether a significant part of the evidence had been previously overlooked or underrated. c. A person who can meet all of the mental demands listed in “DI 25020.010A.3.a.” and has only a mental limitation(s) will almost always be capable of adjusting to other work since his or her potential occupational base would be the unskilled jobs at all exertional levels. EXCEPTION: In a few rare instances where a person's vocational profile is extremely adverse (e.g., closely approaching retirement age, limited education or less, and essentially a lifetime commitment to a field of unskilled work that is now precluded by a mental impairment), a finding of “disabled” may be appropriate. (This would be adjudicated under the Lifetime Commitments Special Medical-Vocational Profile. See DI 25010.001B.3.). 7 , 291 B. Procedure dA hive 1. Introduction cited ck in Bu rr v. Be 35 . 14- No yhill, arc 976, t 30 ugus In DI 25020.010B.2. through DI 25020.010B.5. it shows how the specific abilities listed in section I (“Summary Conclusions”) on the mental RFC assessment form (SSA-4734-F4-SUP) relate to: the basic mental demands of work listed in DI 25020.010A.3.a. and the ability to perform work at various exertional levels and for specific jobs. NOTE: The purpose of section I (“Summary Conclusion”) on the SSA-4734-F-SUP is chiefly to have a worksheet to ensure that the psychiatrist or psychologist has considered each of these pertinent mental activities and the claimant's or beneficiary's degree of limitation for sustaining these activities over a normal workday and workweek on an ongoing, appropriate, and independent basis. It is the narrative written by the psychiatrist or psychologist in section III (“Functional Capacity Assessment”) of form SSA-4734-F4-Sup that adjudicators are to use as the assessment of RFC. Adjudicators must take the RFC assessment in section III and decide what significance the elements discussed in this RFC assessment have in terms of the person's ability to meet the mental demands of past work or other work. This must be done carefully using the adjudicator's informed professional judgment. 2. Mental Abilities Needed For Any Job a. Understanding, carrying out, and remembering simple instructions https://secure.ssa.gov/poms.nsf/lnx/0425020010[8/30/2017 9:32:15 AM] SSA - POMS: DI 25020.010 - Mental Limitations - 09/14/2012 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 6 of 11 The ability to remember locations and worklike procedures. The ability to understand and remember very short and simple instructions. The ability to carry out very short and simple instructions. The ability to maintain concentration and attention for extended periods (the approximately 2-hour segments between arrival and first break, lunch, second break, and departure). The ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. The ability to sustain an ordinary routine without special supervision. The ability to work in coordination with or proximity to others without being (unduly) distracted by them. The ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. b. Use of judgment The ability to make simple work-related decisions. 7 , 291 t 30 ugus The ability to be aware of normal hazards and take appropriateed A iv precautions. ch 6, ar No. 597 14-3 c. Responding appropriately to supervision, icoworkers, and usual work situations yh ll, Berr ck v. n Bu ted i ci The ability to ask simple questions or request assistance. The ability to accept instructions and respond appropriately to criticism from supervisors. The ability to get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes. d. Dealing with changes in a routine worksetting — the ability to respond appropriately to changes in (a routine) work setting. 3. Mental Abilities Critical For Performing Unskilled Work The claimant/beneficiary must show the ability to: a. remember work-like procedures (locations are not critical). b. understand and remember very short and simple instructions. c. carry out very short and simple instructions. d. maintain attention for extended periods of 2-hour segments (concentration is not critical). e. maintain regular attendance and be punctual within customary tolerances. (These tolerances are usually https://secure.ssa.gov/poms.nsf/lnx/0425020010[8/30/2017 9:32:15 AM] SSA - POMS: DI 25020.010 - Mental Limitations - 09/14/2012 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 7 of 11 strict.) Maintaining a schedule is not critical. f. sustain an ordinary routine without special supervision. g. work in coordination with or proximity to others without being (unduly) distracted by them. h. make simple work-related decisions. i. complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.) j. ask simple questions or request assistance. k. accept instructions and respond appropriately to criticism from supervisors. l. get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes. m. respond appropriately to changes in a (routine) work setting. n. be aware of normal hazards and take appropriate precautions. 4. Mental Abilities Needed To Do Semiskilled and Skilled Work a. The basic abilities listed in “DI 25020.010B.2.” (i.e., the “abilities needed to perform any job” ) are necessary. 17 29 t 30, ugus b. Often, there is an increasing requirement for understandingand memoryand forconcentrationand dA hive , arc 76 persistence , e.g.: the ability to: -359 o. 14 l, N ryh understand and remember detailedilinstructions, . Ber v Buck ed in carry out detailed instructions, and cit set realistic goals or make plans independently of others. c. Other special abilities may be needed depending upon the type of work and specific functions it involves. 5. Degrees of Mental Limitations vs. Specific Jobs Different jobs require different degrees of mental ability. EXAMPLE 1: Most competitive jobs require the ability to meet basic standards of neatness and cleanliness. However, the standards that must be met vary greatly depending upon whether the job(s) being considered involve dealing with the public; or working in a factory, a coal mine, a stock yard, etc. EXAMPLE 2: Most competitive jobs require the ability to travel to and from work and thus, would be precluded by extreme agoraphobia in which the person is incapable of leaving his or her home. However, a mild case of agoraphobia may not preclude the ability to travel to and from work or preclude work performed in the same (and thus, familiar) setting each day. To Link to this section - Use this URL: https://secure.ssa.gov/poms.nsf/lnx/0425020010[8/30/2017 9:32:15 AM] DI 25020.010 - Mental Limitations - 09/14/2012 SSA - POMS: DI 25020.010 - Mental Limitations - 09/14/2012 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 8 of 11 http://policy.ssa.gov/poms.nsf/lnx/0425020010 Batch run: 09/14/2012 Rev:09/14/2012 Accessibility FOIA Open Government Glossary Privacy Report Fraud, Waste or Abuse Site Map Website Policies Benefits.gov Disability.gov MyMoney.gov Regulations.gov USA.gov Other Government Sites This website is produced and published at U.S. taxpayer expense. 7 , 291 dA hive cited ck in Bu rr v. Be https://secure.ssa.gov/poms.nsf/lnx/0425020010[8/30/2017 9:32:15 AM] 35 . 14- No yhill, arc 976, t 30 ugus SSA - POMS: DI 25025.005 - Using the Medical-Vocational Guidelines - 03/28/2016 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 9 of 11 Social Security SEARCH MENU LANGUAGES SIGN IN / UP Program Operations Manual System (POMS) Effective Dates: 03/28/2016 - Present Previous | Next TN 6 (02-15) DI 25025.005 Using the Medical-Vocational Guidelines Citations: Social Security Act (the Act) §§: 223(d)(2)(A) and 1614(a)(3)(B) 20 CFR §§: Part 404, Subpart P, Appendix 2, 404.1520(f), 404.1560 thru 404.1569(a), 416.920(f), and 416.960 thru 416.969(a) Social Security Rulings (SSR): 96-9p, 86-8, 85-15, 83-14, 83-12, 83-11, and 83-10 dA hive arc 976, 7 , 291 t 30 ugus A. The medical-vocational guidelines and sequential 35 . 14l, No yhil evaluation Berr k v. c 1. Applying step 5 cited in Bu Apply step 5 of sequential evaluation only after determining the claimant: is not performing substantial gainful activity (SGA); has a severe impairment; does not meet or equal a listed impairment; cannot do any past relevant work (PRW) based on a function-by-function comparison of residual functional capacity (RFC) with the demands of PRW both as the claimant performed the job and as the occupation is generally performed in the national economy; and does not meet one of the special medical-vocational profiles found in “Special Medical-Vocational Profiles” in DI 25010.001). 2. Exceptions to following the steps in order It is not necessary to follow the steps in order when the claimant: meets the requirements for expedited step 4 of sequential evaluation as described in “Expedited Vocational https://secure.ssa.gov/apps10/poms.NSF/lnx/0425025005[8/30/2017 9:32:23 AM] SSA - POMS: DI 25025.005 - Using the Medical-Vocational Guidelines - 03/28/2016 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 10 of 11 Assessment at Steps 4 and 5 of Sequential Evaluation” in DI 25005.005; or is not performing SGA, has a severe impairment(s), cannot do PRW, and the adjudicator determines it is more expeditious to allow the case on a medical-vocational basis as described in “Curtailing Development of Fully Favorable Claims” in DI 24515.020 than it would be evaluate the claimant’s impairment(s) under the listings. CAUTION: No matter how restrictive a claimant’s RFC, you must always develop the claimant’s PRW and perform step 4 of sequential evaluation prior to finding the claimant disabled at step 5 of sequential evaluation. See DI 25005.005D.1.a. B. Using a rule to direct a determination 1. How to determine if a rule directs a determination A rule directs a determination when: the claimant can do substantially all of the range of work represented by the exertional requirements for Table No. 1, 2, or 3; and his or her vocational factors of age, education, and past work experience meet the criteria of a rule. 917 30, 2 st the categories for: To determine if the claimant’s vocational factors meet the criteria of a rule, gu d Au use chive ar 976, a. age found in “Age as a Vocational Factor” in DI 25015.005 and Borderline Age in DI 25015.006, 4-35 .1 ll, No rryhi b. education found in “Education as v. Be a Vocational Factor” in DI 25015.010, and ck in Bu ited c. past work experiencecfound in “Work Experience as a Vocational Factor” in DI 25015.015. NOTE: Rule 204.00 never directs a determination. See DI 25025.005C.1. in this section. 2. The implication of a rule directing a determination When the claimant’s exertional RFC and vocational factors of age, education, and past work experience meet the criteria of a rule, the issues of work adjustment and existence of work in the national economy for the claimant are resolved. If the rule directs a determination of: not disabled, the rule supports our finding that the claimant can adjust to other work that exists in significant numbers in the national economy; or disabled, the rule supports our finding that the claimant is not capable of adjusting to other work that exists in significant numbers in the national economy. IMPORTANT: If the claimant has impairment-related exertional and nonexertional limitations, and the applicable exertional rule would result in a finding of disabled, use that rule to direct a medical-vocational allowance. EXAMPLE: A 55-year-old claimant with a high school education and unskilled past work experience has a light RFC and nonexertional limitations of occasional bilateral handling. The claimant meets the criteria of rule 202.04 https://secure.ssa.gov/apps10/poms.NSF/lnx/0425025005[8/30/2017 9:32:23 AM] SSA - POMS: DI 25025.005 - Using the Medical-Vocational Guidelines - 03/28/2016 Case: 14-35976, 09/05/2017, ID: 10568220, DktEntry: 36-2, Page 11 of 11 considering his exertional limitations only. The decision column for that rule says “disabled”. Use rule 202.04 to direct a determination of disability. Do not consider the additional impact occasional handling would have on the light occupational base. C. Using a rule as a framework for a determination Because the claimant’s RFC and vocational factors of age, education, and past work experience must meet the criteria for a rule to direct a determination, we apply the medical-vocational rules as a framework for a determination more often than we use them to direct a determination. 1. How to determine if a rule should be used as a framework When a claimant’s exertional RFC or vocational factors do not meet the criteria of a medical-vocational rule, use the medical-vocational guidelines as a framework for a determination. IMPORTANT: Because rule 204.00 involves consideration of nonexertional limitations or restrictions, it never directs a determination. Always use rule 204.00 as a framework for a determination. 2. Implications for using a rule as a framework for a determination 7 , 291 st 30 for the disability When we use a medical-vocational rule as a framework, the rule provides ugu guidance dA chive ar determination. 976, 4-35 .1 This means that using a rule as a framework does not always resolve the issue of whether a significant number of ll, No rryhi . Be jobs exist in the national economyBucwhich the claimant can adjust. to k v in cited For instructions on how to address the issue of a significant number of jobs when using a rule as a framework, see “A Significant Number of Jobs to Support a Framework “Not Disabled” Determination” in DI 25025.030. To Link to this section - Use this URL: DI 25025.005 - Using the Medical-Vocational Guidelines - 03/28/2016 http://policy.ssa.gov/poms.nsf/lnx/0425025005 Batch run: 03/28/2016 Rev:03/28/2016 Accessibility FOIA Open Government Glossary Privacy Report Fraud, Waste or Abuse Site Map Website Policies Benefits.gov Disability.gov MyMoney.gov Regulations.gov USA.gov Other Government Sites This website is produced and published at U.S. taxpayer expense. https://secure.ssa.gov/apps10/poms.NSF/lnx/0425025005[8/30/2017 9:32:23 AM]

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