Gavin Buck v. Nancy Berryhill
Filing
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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May 2017
May is Mental Health Month
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This year for May is Mental Health Month, MHA is talking about Risky Business. It
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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
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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
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a. It cannot be assumed that a failure to rryhil
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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,
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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.).
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B. Procedure
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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
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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.
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The ability to be aware of normal hazards and take appropriateed A
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c. Responding appropriately to supervision, icoworkers, and usual work situations
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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
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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.
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b. Often, there is an increasing requirement for understandingand memoryand forconcentrationand
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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
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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
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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
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A. The medical-vocational guidelines and sequential
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evaluation
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1. Applying step 5
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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
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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.
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st the categories for:
To determine if the claimant’s vocational factors meet the criteria of a rule, gu
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a. age found in “Age as a Vocational Factor” in DI 25015.005 and Borderline Age in DI 25015.006,
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b. education found in “Education as v. Be
a Vocational Factor” in DI 25015.010, and
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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
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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
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This means that using a rule as a framework does not always resolve the issue of whether a significant number of
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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
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