[Federal Register Volume 79, Number 99 (Thursday, May 22, 2014)]
[Notices]
[Pages 29473-29475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11841]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Acquiescence Ruling (AR) 14-1(8); Docket No. SSA-2014-
0008]
Brock v. Astrue, 674 F.3d 1062 (8th Cir. 2012): Requiring
Vocational Specialist (VS) or Vocational Expert (VE) Evidence When an
Individual has a Severe Mental Impairment(s)--Titles II and XVI of the
Social Security Act
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling (AR).
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SUMMARY: We are publishing this Social Security AR in accordance with
20 CFR 402.35(b)(2), 404.985(a), (b), and 416.1485(a), (b).
DATES: Effective Date: May 22, 2014.
FOR FURTHER INFORMATION CONTACT: Marc Epstein, Office of the General
Counsel, Office of Program Law, Social Security Administration, 6401
Security Boulevard, Baltimore, MD 21235-6401, (410) 965-8122, or TTY
410-966-5609, for information about this notice. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: An AR explains how we will apply a holding
in a decision of a United States Court of Appeals that we determine
conflicts with our interpretation of a provision of the Social Security
Act (Act) or regulations when the Government has decided not to seek
further review of that decision or is unsuccessful on further review.
We will apply the holding of the Court of Appeals' decision as
explained in this AR to claims at all levels of administrative review
within the Eighth Circuit. We will apply this AR to all determinations
or decisions made on or after May 22, 2014. If we made a determination
or decision on an application for benefits between March 28, 2012, the
date of the Court of Appeals' decision, and May 22, 2014, the effective
date of this AR, the claimant may request that we apply the AR to the
prior determination or decision. The claimant must show, pursuant to 20
CFR 404.985(b)(2) or 416.1485(b)(2), that applying the AR could change
our prior determination or decision in his or her case.
When we received this precedential Court of Appeals' decision and
determined that an AR might be required, we began to identify those
claims that were pending before the agency within the circuit that
might be
[[Page 29474]]
subject to readjudication if we subsequently issued an AR. Because we
have determined that an AR is required and are publishing this AR, we
will send a notice to those individuals whose claims we have
identified. In the notice, we will provide information about the AR and
the right to request readjudication under the AR. However, a claimant
does not need to receive a notice in order to request that we apply
this AR to our prior determination or decision on his or her claim, as
provided in 20 CFR 404.985(b)(2) and 416.1485(b)(2).
If we later rescind this AR as obsolete, we will publish a notice
in the Federal Register to that effect, as provided in 20 CFR
404.985(e) and 416.1485(e). If we decide to relitigate the issue
covered by this AR, as provided by 20 CFR 404.985(c)and 416.1485(c), we
will publish a notice in the Federal Register stating that we will
apply our interpretation of the Act or regulations involved and
explaining why we have decided to relitigate the issue.
(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social
Security--Disability Insurance; 96.002 Social Security--Retirement
Insurance; 96.004 Social Security--Survivors Insurance)
Dated: April 17, 2014.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
Acquiescence Ruling 14-1(8)
Brock v. Astrue, 674 F.3d 1062 (8th Cir. 2012): Requiring Vocational
Specialist (VS) or Vocational Expert (VE) Evidence When an Individual
has a Severe Mental Impairment(s)--Titles II and XVI of the Social
Security Act
Issue: Must an adjudicator obtain VS or VE evidence to determine
whether a claimant with a severe mental impairment can perform jobs
that exist in significant number in the national economy, given his or
her residual functional capacity (RFC), age, education and work
experience?
Statute/Regulation/Ruling Citation: Sections 205(b), 223(d)(2)(A);
223(d)(5)(A); 1614(a)(3)(B); 1614(a)(3)(H)(i) of the Social Security
Act (42 U.S.C. 423(d)(2)(A); 423(d)(5)(A); 1382c(a)(3)(B);
1382c(a)(3)(H)(i)); 20 CFR 404.1520(a)(4)(v), 404.1520(g), 404.1566,
404.1569, 404.1569a, 416.920(a)(4)(v), 416.920(g), 416.966, 416.969,
416.969a; section 200.00(e) of 20 CFR Part 404, Subpart P, Appendix 2;
Social Security Rulings (SSRs) 83-10, 83-12, 83-14, 85-15, 96-9p.
Circuit: Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska,
North Dakota, and South Dakota).
Applicability of Ruling: This ruling applies to determinations or
decisions made in the Eighth Circuit at all levels of administrative
review.
Description of Case: Michael Brock (Brock) applied for Supplemental
Security Income (SSI) payments based on disability alleging he was
disabled due to an anxiety disorder and attention deficit hyperactivity
disorder.\1\ The administrative law judge (ALJ) found that Brock's
mental impairments were severe at step two of our sequential evaluation
process. Despite the severe mental impairments, the ALJ found that
Brock had the RFC to perform the full range of medium work contemplated
in the Medical-Vocational Guidelines (the Grid rules). Considering
Brock's RFC, age, education, and work experience, the ALJ used Medical-
Vocational Rule 203.25 as a framework to find that Brock could adjust
to work existing in significant numbers in the national economy and was
``not disabled.'' The ALJ did not request VE testimony.
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\1\ Although Brock was a Title XVI case, the same principles
apply to Title II. Therefore, this Acquiescence Ruling applies to
both Title II and Title XVI disability claims.
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On appeal, Brock argued that because his impairments were solely
nonexertional, the ALJ erred in relying solely on the Grid rules and
that the ALJ should have sought VE evidence to determine whether he
could adjust to other work. Brock asserted that, because the Grid rules
are premised only on exertional limitations, they are not meant to
direct a conclusion of ``disabled'' or ``not disabled'' for individuals
who have solely nonexertional limitations. Therefore, Brock asserted
that substantial evidence in the record did not support the ALJ's
decision.
Holding: The Court of Appeals for the Eighth Circuit concluded that
the ALJ erred by relying solely on the Grid rules to determine that
Brock could adjust to work existing in significant numbers in the
national economy. The Court held that ``[b]ecause the ALJ determined
that Brock suffered from severe mental impairments, the ALJ should have
consulted a [VE] in determining whether Brock had the RFC to perform
other jobs that exist in significant number in the national economy.''
Statement As to How Brock Differs From the Agency's Policy
At step five of the sequential evaluation process (or the last step
in the sequential evaluation process in continuing disability review
claims), we consider the vocational factors of age, education, and work
experience in conjunction with a claimant's RFC to determine whether
the claimant can adjust to other work that exists in significant
numbers in the national economy. Section 200.00(e)(1) of 20 CFR Part
404, Subpart P, Appendix 2 provides that ``[i]n the evaluation of
disability where the individual has solely a nonexertional type of
impairment, determination as to whether disability exists shall be
based on the principles in the appropriate sections of the regulations,
giving consideration to the rules for specific case situations in this
appendix 2. The rules do not direct factual conclusions of disabled or
not disabled for individuals with solely nonexertional types of
impairments.'' As explained below, the rules are, however, used as a
framework for decision making.
Under SSR 85-15: Titles II and XVI: Capability To Do Other Work--
The Medical-Vocational (Grid) Rules as a Framework for Evaluating
Solely Nonexertional Impairments, where a person's only impairment is
mental, it is not of listing severity but does prevent the person from
meeting the mental demands of past relevant work and prevents the
transferability of acquired work skills, the final consideration is
whether the person can be expected to perform unskilled work. The basic
mental demands of competitive, remunerative, unskilled work include the
abilities (on a sustained basis) to understand, carry out, and remember
simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a
routine work setting. Where there is no exertional impairment,
unskilled jobs at all levels of exertion constitute the potential
occupational base for persons who can meet the mental demands of
unskilled work. Under our interpretation of the regulations, an
adjudicator is not required to consult a VE or other vocational
resource to determine whether a nonexertional limitation significantly
erodes a claimant's occupational base when adjudicative guidance on the
effect of the limitation is provided in an SSR.\2\ If the
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occupational base is not significantly eroded by non-exertional
limitations, the adjudicator may use the Grid rules as a framework, and
VE testimony is not required.
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\2\ For example, the following non-exertional limitations do not
significantly erode an occupational base: Limited exposure to
dangerous moving machinery, unprotected heights, and ragweed
allergies (sedentary jobs); limited climbing of ladders and
scaffolding, crouching (sedentary and light jobs), exposure to
feathers, use of a cane for prolonged ambulation and uneven terrain,
or slopes (sedentary), and inability to sense texture or temperature
with fingertips. See SSR 83-14: Titles II and XVI: Capability To Do
Other Work--The Medical-Vocational Rules as a Framework for
Evaluating a Combination of Exertional and Nonexertional
Impairments, at *2. Whereas, the following nonexertional limitations
generally do significantly erode an occupational base: Loss of
bilateral manual dexterity (sedentary jobs); constriction of visual
field (light and medium jobs); no stooping, and poor balance when
standing or walking on uneven terrain. See SSR 96-9p: Policy
Interpretation Ruling Titles II and XVI: Determining Capability To
Do Other Work--Implications of a Residual Functional Capacity for
Less Than a Full Range of Sedentary Work, at *5-6. SSR 83-14: Titles
II and XVI: Capability To Do Other Work--The Medical-Vocational
Rules as a Framework for Evaluating a Combination of Exertional and
Nonexertional Impairments. SSR 83-10: Titles II and XVI: Determining
Capability to do Other Work--The Medical-Vocational Rules of
Appendix 2 and SSR 83-12: Titles II and XVI: Capability to do Other
Work--The Medical-Vocational Rules as a Framework For Evaluating
Exertional Limitations Within a Range of Work or Between Ranges of
Work also provide helpful adjudicative guidance on using the rules
and the impact of nonexertional impairments on the exertional
occupational base.
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In Brock, the ALJ found that Brock retained the ability to perform
unskilled work. Pursuant to SSR 85-15, the ALJ found Brock's non-
exertional limitations had little or no effect on the occupational base
of medium exertional level unskilled work before applying the framework
of Grid rule 203.25 to find Brock was not disabled.
The Brock Court's decision differs from our policy because it held
that, because the ALJ found Brock had severe mental impairments, ``the
ALJ should have consulted a [VE] in determining whether Brock had the
RFC to perform other jobs that exist in significant number in the
national economy.'' The holding requires the ALJ to consult a VE before
denying a claim at step five of our sequential evaluation process when
the claim involves an individual with a severe mental impairment(s),
regardless of whether adjudicative guidance available in an SSR holds
that the resulting nonexertional limitation(s) does not significantly
erode the occupational base and application of the applicable Grid rule
is appropriate.
Explanation of How We Will Apply the Brock Decision Within the Circuit
This Ruling applies only to claims in which the claimant resides in
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South
Dakota at the time of the determinations or decision at the initial,
reconsideration, and ALJ hearing levels.
In making a disability determination or decision at step five of
the sequential evaluation process (or the last step in the sequential
evaluation process in continuing disability review claims), we will not
rely exclusively on the Grid rules as a framework for decision making
when an individual has a severe mental impairment(s). Before we deny a
claim for disability benefits at step five (or the last step in the
sequential evaluation process in continuing disability review claims)
when a claimant has a severe mental impairment(s), we will produce VE
evidence in claims at the hearing level. For claims decided at the
initial and reconsideration levels, we will use evidence from a VS, the
Dictionary of Occupational Titles (DOT), or another reliable source of
job information, such as the ones listed in 20 CFR 404.1566(d) and
416.966(d).
At the Appeals Council level, the Appeals Council will use this AR
to determine whether it was correctly applied at the hearing level.
However, when the Appeals Council exercises its authority to issue a
corrective unfavorable decision, the Appeals Council may rely on
vocational evidence adduced at the hearing.
[FR Doc. 2014-11841 Filed 5-21-14; 8:45 am]
BILLING CODE 4191-02-P