August 21, 2017

Tenth Circuit: Appeals Council Required Only to “Consider” New Evidence of Disability

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The US Social Security Administration denied her claim. She received a hearing with an administrative law judge (ALJ), who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Colorado Gives: Disability Law Colorado Recognizes the Inherent Value of All People and Embraces Empowerment

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

dlc-630x160Disability Law Colorado (formerly known as The Legal Center for People with Disabilities and Older People) was created in 1976 out of the dream of a small group of parents who came together to secure equal rights for their children with developmental disabilities who were living in state institutions. These parents wanted a better life for their children and believed that all people with disabilities deserved the right to live full and rewarding lives. Disability Law Colorado’s early successes included requiring school districts to pay for children’s education in public schools, allowing children with severe disabilities to attend school for the first time. Disability Law Colorado also succeeded in preventing sterilization of people with developmental disabilities and preventing workplace discrimination against people with disabilities.

In 1977, the governor designated Disability Law Colorado to be Colorado’s Protection and Advocacy (P&A) System for people with developmental disabilities. Today, Disability Law Colorado is recognized as a leader in the National Disability Rights Network made up of Protection and Advocacy programs from all the states and territories.

For Colorado Gives Day, Disability Law Colorado has a $15,000 fundraising goal. By donating through Colorado Gives, your gift will go further thanks to a $1 million dollar incentive fund. Click here to donate.

Trait-Based Protection Under the ADAAA

roberto-corrada-fullBy Roberto Corrada, Professor
University of Denver Sturm College of Law

Professor Susan Carle of American University Law School thinks the “regarded as” prong of the ADA may be severely underutilized by plaintiffs seeking to challenge their termination. According to Carle, who delivered a lunch keynote address at the 2016 Colorado Bar CLE annual employment law conference, the ADAAA of 2009 amended the ADA in a way that greatly increased the potential effectiveness of the “regarded as” prong. The ADAAA, first, freed the “regarded as” prong of the requirement that the disability the employer regards an employee as having must significantly impair a major life activity. Employers now only have to “regard” an employee as having some impairment for the employee to be protected by the ADA. To balance this out, Carle emphasizes, the ADAAA did limit the “regarded as” prong a bit. So, the prong does not protect transitory or minor disabilities and the “regarded as” prong does not support requests for accommodation.

Professor Carle explains that it’s fairly clear now what is protected, but there’s a bit of ambiguity around how far the new protection goes. With respect to what is clear, if an employee has an injured back, but has a medical release to go back to work (can perform the essential functions of the job) and the employer says no, the employee is likely protected. Also, if an employee has an anxiety disorder and the employer finds the employee annoying (even though the employee can perform essential functions) and fires the employee, the employee is likely protected. Professor Carle, though, is interested in knowing whether the ADA might extend far enough to protect certain traits. For example, what if an employee has no diagnosed disability or has a disability that has not been disclosed to the employer? If the employer then looks at an employee “trait” that the employee possesses and “regards it as” a disability or impairment, is the employee protected by the ADA? For example, an employee suffers from depression and as a result fails to participate in workplace social gatherings or attends, but just sits in the corner. Is the employee protected from termination by the ADA “regarded as” prong?

Professor Carle believes that the ADA “regarded as” prong “can be of special help to persons with ambiguous or hidden impairments because it may very often be the very perception of ‘something weird/different/not right’ about the person that causes a negative reaction or discrimination rather than any limitation in relevant job-related abilities.” The big question is whether an employer who regards an employee as having a “social disorder” based on a trait is prohibited from acting on that trait in disciplining or terminating the employee? Does the trait have to be an effect of an actual disability or impairment? Professor Carle will attempt to make her case in an upcoming issue of the University of California Davis Law Review. Professor Carle’s argument does have some hope for unleashing the progressive potential of the ADA. After all, a foundational policy of the ADA is to have employers focus on the essential functions of the job in making employment decisions rather than indulging personal biases.

 

CLE Homestudy — Employment Law Conference 2016: Proactively Prepare for What Lies Ahead

This CLE presentation took place Wednesday, April 20, 2016, and Thursday, April 21, 2016. Order the homestudy here: CDMP3 audio.

 

Roberto Corrada, Mulligan Burleson Chair in Modern Learning and Professor at the University of Denver Sturm College of Law, has devoted his scholarly attention to three primary areas: the rights of ethnic and sexual minorities; the public/private distinction in labor and employment law; and the scholarship of teaching and learning. A distinguished teacher, Corrada has been recognized for his innovative work in the classroom. He has received several awards, and was named a national Carnegie Scholar in 2000. He is also extensively involved in service work with local and national institutions, including chairing the board of the ACLU of Colorado in 1998 and helping form the Denver Urban Debate League, serving now on the Board of Directors.

Tenth Circuit: ALJ Properly Considered Evidence as a Whole and Gave Good Reasons for Findings

The Tenth Circuit Court of Appeals published its previously issued opinion in Vigil v. Colvin on Monday, November 16, 2015.

Kenneth Vigil filed for Social Security disability benefits due to a “bad left knee and ankle, anxiety, depression, and pain in his left heel and back.” He requested and received a hearing before an ALJ, at which he was represented by counsel. Vigil and a vocational expert testified at the hearing. The ALJ denied Vigil’s claim for benefits, finding that although he demonstrated moderate impairment and was unable to return to his previous employment, he could perform unskilled work that existed in substantial numbers in the national economy. The ALJ denied Vigil’s claim for benefits based on the fifth part of the five-part analysis for determining disability. The Appeals Council denied review, and the district court affirmed.

The Tenth Circuit reviewed the ALJ’s decision to determine whether the factual findings were supported by substantial evidence and whether the correct legal standards were applied. Vigil first argued that the ALJ did not have a valid reason for rejecting the restrictions imposed by his consultative physician, Dr. Summerlin. The Tenth Circuit reviewed the record and found that the ALJ gave Dr. Summerlin’s opinion moderate weight. In his order, the ALJ found that Dr. Summerlin’s restrictions were inconsistent with his exam results and he did not explain the discrepancy. The Tenth Circuit determined that the ALJ’s findings were supported by substantial evidence and affirmed, noting that the ALJ considered all of the evidence as well as the record as a whole and gave good reasons for the weight he afforded Dr. Summerlin’s report. The Tenth Circuit found no error.

Vigil next argued that the ALJ failed to adequately account for his memory and concentration deficits in calculating his residual functional capacity (RFC). The Tenth Circuit again found no error. The ALJ found at step three of the analysis that Vigil demonstrated moderate difficulties in concentration, persistence, and pace in social functioning. The ALJ accounted for those limitations by reducing Vigil’s RFC to one or two, meaning unskilled work. The Tenth Circuit noted that the evidence in the record supported the ALJ’s determination.

The Tenth Circuit affirmed the district court.

Traffic Camera Bills Vetoed; PERA Reduction, School Safety, and More Bills Signed

On Wednesday, June 3, 2015, Governor Hickenlooper signed six bills into law and vetoed two bills. To date, he has signed 296 bills into law and vetoed two bills. The bills on which he took legislative action Wednesday are summarized here.

Signed

  • HB 15-1391 – Concerning an Adjustment to the Total Employer Contribution Rate of the Denver Public Schools Division of the Public Employees’ Retirement Association in Connection with the Equalization Status of the Association’s Denver Public Schools Division with the Association’s School Division as Required by the Merger of the Denver Public Schools Retirement System with the Association, by Reps. Lois Court & Jim Wilson and Sen. Pat Steadman. The bill reduces the employer PERA contribution rate, effective January 1, 2015, and allows adjustment of the employer contribution rate every five years.
  • SB 15-213Concerning the Limited Waiver of Governmental Immunity for Claims Involving Public Schools for Injuries Resulting from Incidents of School Violence, by Sens. Bill Cadman & Mark Scheffel and Reps. Dickey Lee Hullinghorst & Crisanta Duran. The bill allows schools and school districts to be held liable if they fail to exercise reasonable care in protecting students and staff from reasonably foreseeable acts of violence.
  • SB 15-214 – Concerning Creating a Legislative Committee on Safety in Schools, and, in Connection Therewith, Making an Appropriation, by Sens. Mark Scheffel & Bill Cadman and Reps. Crisanta Duran & Dickey Lee Hullinghorst. The bill establishes the School Safety and Youth Mental Health Committee to study issues related to school safety and prevention of threats to safety.
  • SB 15-221 – Concerning Public Transit Officers, by Sen. John Cooke and Reps. Jessie Danielson & Kevin Priola. The bill clarifies that a public transit officer who is classified as a peace officer through his or her job is a peace officer at all times, even when off-duty.
  • HB 15-1359 – Concerning the Creation of the Achieving a Better Life Experience (ABLE) Savings Program for Individuals with Disabilities, by Reps. Jessie Danielson & Lois Landgraf and Sens. John Kefalas & Beth Martinez Humenik. The bill allows the Department of Higher Education to create the ABLE Savings Program for people with disabilities so they may create accounts exempt from federal taxable income.
  • SB 15-288Concerning the Compensation Paid to Certain Public Officials, by Sens. Randy Baumgardner & Mary Hodge and Reps. Millie Hamner & Bob Rankin. The bill aligns the salaries of legislative branch officials with the salaries of judicial branch officials.

Vetoed

  • SB 15-276 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement, by Sens. David Balmer & Morgan Carroll and Reps. Kevin Van Winkle & Stephen Humphrey. The bill would have prohibited the issuance of citations from traffic cameras with specific exceptions for toll roads and toll highways.
  • HB 15-1098 – Concerning the Elimination of the Use of Automated Surveillance Camera Vehicle Identification Systems for Traffic Law Enforcement, by Reps. Kevin Van Winkle & Steve Lebsock and Sen. Tim Neville. The bill would have required local governments to obtain voter approval before utilizing red light cameras, and would have required existing programs to receive voter approval in 2017 in order to continue.

In addition to the bills signed Wednesday, Governor Hickenlooper signed six bills into law on Thursday, bringing the total number of signed bills to 302. The bills signed Thursday are summarized below.

  • HB 15-1367 – Concerning Retail Marijuana Taxes, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Pat Steadman. The bill refers a ballot issue to voters regarding whether the state may retain and spend revenue created from retail marijuana excise taxes.
  • HB 15-1249 – Concerning Amendments to the Fees Associated with Water Pollution Control, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. KC Becker and Sen. Mary Hodge. The bill recodifies fees for clean water and drinking water programs, and adds fees for pesticide application activities and CDPHE certifications.
  • HB 15-1341 – Concerning Increasing the Penalty from a Class 6 Felony to a Class 5 Felony for Sexual Exploitation of a Child by Possession of Sexually Exploitative Material, and, in Connection Therewith, Making an Appropriation, by Reps. Kathleen Conti & Rhonda Fields and Sens. John Cooke & Michael Johnston. The bill increases the penalty for possession of certain sexually exploitative material and modifies terms concerning electronic media.
  • HB 15-1033 – Concerning Long-Term Strategies to Address Colorado’s Aging Population, and, in Connection Therewith, Creating a Strategic Action Planning Group to Develop a Comprehensive, Long-Term Action Plan for Colorado’s Aging Population and Making an Appropriation, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill creates a strategic planning group to study issues facing Coloradoans age 50 and older, and outlines specific study areas.
  • HB 15-1335 – Concerning Access to Personal Records Relating to a Person’s Family History, by Reps. Lori Saine & Jonathan Singer and Sens. Vicki Marble & Linda Newell. The bill allows an adult adoptee to obtain access to a non-certified copy of an original birth certificate and amended birth certificates of adult siblings or half-siblings.
  • SB 15-206 – Concerning Phased Conservation Easement Donations for Conservation Easements Donated On or After January 1, 2015, and, in Connection Therewith, Lowering Transaction Costs for Agricultural Producers, Facilitating Endangered Species Mitigation, and Making an Appropriation, by Sens. Ellen Roberts & Mary Hodge and Reps. Alec Garnett & Jon Keyser. The bill increases the credit awarded for the first $100,000 of a conservation easement tax credit and also increases the maximum credit for a single donor.

Vetoed

  • HB 15-1390 – Concerning an Increase in the Allowable Finance Charge for Certain Consumer Credit Transactions, by Reps. Jovan Melton & Jack Tate and Sens. Chris Holbert & Cheri Jahn. The bill would have increased the unpaid balance limit for current tiered maximum finance charges allowed on certain supervised loans and consumer credit sales.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.