SUMMARY OF ARGUMENTS

I. CASE UPDATE

II. CASE SURVEY

• §100 Sequential Evaluation Process
• §200 Assessment of Disability Issues
• §300 Specific Impairments Issues
• §400 Nondisability Issues
• §500 Administrative Review Issues
• §600 Federal Court Issues
• §700 Attorneys’ Fees
• §800 Source of Law Issues

III. ISSUE TOPICS

This update, with the addition of 66 reported new circuit case summaries decided through June 15, 2015 and 27 new winning briefs filed in courts in the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits, has made constructing winning briefs even easier. The circuits seem to be slowly shifting in the claimant’s favor, with several important decisions ruling for claimants. New material added to this year’s revision includes:

• Cogent summaries of new published cases from the circuit courts of appeal, illustrating how some circuit courts are shifting, as new judges replace retiring judges. The Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have all issued published opinions reversing and remanding Social Security cases (and even paying benefits in some cases, like Gentry v. Comm’r of Soc. Sec., 741 F.3d 708 (6th Cir. 2014) and Garrison v. Colvin, 759 F.3d 995 (9th Cir.2014)).
• Appeal of a dismissal – In the en banc decision in Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014), the Seventh Circuit overruled Waters v. Harris, 656 F.2d 234 (7th Cir. 1980) and held that the district court abused its discretion in finding that it lacked subject matter jurisdiction based on 42 U.S.C. § 405(g), authorizing only review of decisions “made after a hearing.” The Court held that the statute’s reference to a “hearing” actually “means whatever process the [SSA] deems adequate to produce a final decision.”
• Mental retardation under Listing 12.05C is addressed in several cases including Reed v. Colvin, 779 F.3d 725 (8th Cir.2015); Lott v. Colvin, 772 F.3d 546 (8th Cir. 2014); Channell v. Colvin, 756 F.3d 606 (8th Cir. 2014); and Garcia v. Comm’r of Soc. Sec. Admin., 768 F.3d 925 (9th Cir. 2014).
• Surprising great decision from the Fourth Circuit – Mascio v. Colvin, 780 F.2d 632 (4th Cir. 2015), addressing the need to perform a “function by function analysis” in assessing RFC; the need to include limitation of concentration, persistence and pace in questioning the VE; and rejecting boilerplate credibility findings.
• Past relevant work – Copeland v. Colvin, 771 F. 3d 920 (5th Cir. 2014), holding that the ALJ erred in characterizing a job as past relevant work as the claimant’s earnings indicated it was never performed at the substantial gainful activity level. The Fifth Circuit held “that a rebuttable presumption of non-SGA arises when a claimant’s earnings fall below the earnings guidelines for SGA . . . .”
• Child’s SSI claim – Knight ex rel. P.K. v. Colvin, 756 F.3d 1171 (10th Cir. 2014) – addressing the need to consider the “whole child” as required by SSR 09-2p.
• VE testimony about job numbers – several opinions from the Seventh Circuit (Voigt v. Colvin, 781 F.3d 871 (7th Cir.2015); Herrmann v. Colvin, 772 F.3d 1110 (7th Cir. 2014); and Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014)) casting doubt regarding the validity of VE testimony about job numbers apparently based on aggregate data or where the source and accuracy of the testimony has not been established.
• EAJA fees – several circuit decisions addressing EAJA fees, including the Seventh Circuit’s en banc decision in Sprinklev. Colvin, 777 F.3d 421 (7th Cir. 2015) overruling Mathews-Sheets v. Astrue, 653 F.3d 560 (7th Cir. 2011) regarding the evidence needed to obtain cost-of-living adjusted fees.