California Department of Social Services - State Hearings Division
Notes from the Training Bureau - May 8, 1996

Item 96-05-02A
Disability Update

Changes and additions to the Paraphrased Regulations (Pararegs) and other disability-related materials, not included in the Pararegs, are summarized below:

Listing of Impairments

1. Minor changes were made to 4.00C(2)(e)(1) and 4.04A which make it slightly easier to meet the ischemic heart disease listing because documentation can be provided by signs or symptoms, not signs and symptoms. (Listing of Impairments (Listing), pp. 21, 25)

2. Listing 1.05C is discussed briefly in Moncada v. Chater (1995) 60 F. 3d 521. (court case not in Pararegs)

3. Listing 1.10 is analyzed in Gamble v. Chater (1995) 68 F. 3d 319. (Pararegs 445-G15)

4. Listing 12.03C is analyzed in Esselstrom v. Chater (1995) 67 F. 3d 869. (Pararegs 445-G17)

5. Listing 12.04 is analyzed in Lester v. Chater (1995) 69 F. 3d 1453. (Pararegs 445-G16)

 

Social Security Rulings (SSRs) and Acquiescence Rulings (ARs)

1. SSR 95-5p replaced SSR 88-13 as the authority for consideration of pain and other symptoms in the RFC and Individualized Functional Assessment. (Pararegs 445-G10, for RFC only)

2. Chavez v. Bowen (1988) held that the first ALJ’s determination of RFC, education, skill level, and ability to perform past relevant work bound the second ALJ. This is consistent with AR 94-2(4) which is controlling law in the Fourth Circuit. (Pararegs 445-A13)

 

Prescribed Treatment

1. Byrnes v. Shalala (1995) 60 F. 3d 639 held that ALJ’s failure to develop a record whether the particular claimant could follow the prescribed treatment made a denial for noncompliance improper. (court case not in Pararegs) The Byrnes decision cited Dodrill v. Shalala (1993) 12 F. 3d 915. (Pararegs 445-H4A)

2. Gamble v. Chater, supra, held that the inability to afford prescribed treatment is among the circumstances which justify failure to follow that treatment. (Pararegs 445-G15) The Gamble court cited SSR 82-59. (court case not in Pararegs)

 

Miscellaneous Interpretations

1. Retroactivity generally, and specifically as applicable to SSI applicants/recipients, was discussed in ACWDL 95-81, interpreting Title 22, CCR §§50078 and 50148. (Pararegs 445-6)

2. Presumptive disability criteria was discussed, as well as the right of the presumptively disabled person to receive aid pending, in MEPM §22C. (Pararegs 445-6, 445-6A)

3. The DOT was held not to be controlling in light of expert testimony from a vocational expert that the claimant could perform certain light jobs, even though the ALJ had instructed the expert to assume that the claimant was limited to sedentary work. Johnson v. Shalala (1995) 60 F. 3d 1428 (court case not in Pararegs) went on to characterize the DOT as creating a rebuttable presumption, citing 20 CFR §404.1566(d)(2)-(5), and cases from the Fourth, Sixth and Eighth Circuits. The Court distinguished Johnson from Terry v. Shalala (1990) 903 F. 2d 1273 which overturned the ALJ’s decision not to follow the DOT, because in that case the Secretary did not explain why the DOT job descriptions were inapplicable. (court case not in Pararegs)

4. The July 1995 Social Security Advisory Service reviewed the weight to be given to various medical sources, as gleaned from Ninth Circuit Court decisions.

(a) More weight is given to a treating physician’s opinion than to the opinion of a non-treating physician. (Magallanes v. Bowen (1989) 881 F. 2d 747 (court case not in Pararegs) and Sprague v. Bowen (1987) 812 F. 2d 1226 (Pararegs 445-A7) When the non-treating source controverts the examining physician based on independent clinical findings, which differ from the clinical findings of the treating physician, the opinion of the non-treating source may be substantial evidence and the ALJ must resolve the discrepancy. (Magallanes, supra) But if the non-treating source has not made independent clinical findings or uses findings also evaluated by the treating physician, the ALJ may reject the opinion of the treating physician only by giving specific, legitimate reasons based on substantial evidence in the record. (Ramirez v. Shalala (1993) 8 F. 3d 1449 (court case not in Pararegs))

(b) The ALJ may reject an uncontroverted opinion of a treating physician only for "clear and convincing" reasons based on substantial evidence in the record. (Magallanes, supra; Fife v. Heckler ((1985) 767 F. 2d 1427 (Pararegs 445-G5); Montijo v. Secretary (1984) 729 F. 2d 599 (Pararegs 445-A3)) But the ALJ may reject an uncontroverted opinion of an examining but non-treating physician simply on the basis of legitimate conflicting evidence and adequate reasons. (Pitzer v. Sullivan (1990) 908 F. 2d 502 (court case not in Pararegs))

(c) An ALJ may adopt the opinion of a non-examining medical advisor who testifies and rejects the contrary opinion of the non-treating examining physician by giving specific and legitimate reasons. (Andrews v. Shalala (1995) 53 F. 3d 1035 (court case not in Pararegs))

(d) The opinions of a specialist about medical issues related to his/her area of specializations are given more weight than the opinions of a nonspecialist. See Smolen v. Chater, 96 Daily Journal D.A.R. 3640, April 1, 1996, which references 20 CFR §404.1527(d)(5). Smolen reviews much of the case law cited above, and applies it to the claimant, who was being evaluated by her brother, as well as other doctors. The dissenting Judge does not feel Dr. Smolen, or the claimant’s pediatrician, qualified as a "treating physician."

NOTE: If any Judge wants any of the above material added to the Pararegs, or wants other material to be added or modified, please send a note to Judge Peter Hemenway at MS 28-02.