Friday, March 15, 2024

Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection

The Ninth Circuit published Ferguson v. O'Malley on March 14, 2024. The divided panel used the clear and convincing standard to reverse the decision denying Ferguson's benefits. The dissent would affirm. 

The decision affirms the proposition that an administrative decision lacks the support of substantial evidence if the ALJ improperly rejected the symptom testimony. The decision relies on Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) and Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 

Judge Rawlinson in dissent asserts that the substantial evidence standard is not high and some evidence supports the ALJ decision. Judge Rawlinson relies on Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) and Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 

The characterization of a decision that does not properly address the testimony as stripping the ALJ decision of a foundation in substantial evidence is the source of the problem. Substantial evidence is a low bar. It gets the case past a directed verdict and is grounds for denying a motion for judgment not withstanding the verdict. According to Judge Rawlinson, there is evidence that Ferguson had less severe symptoms, i.e., the medical evidence. Could a factfinder rely on the medical evidence and reject Ferguson's testimony? In a civil trial, clearly that is the case. 

But this is administrative law. The ALJ must not only reach a permissible result but also reach that result for permissible reasons. The permissible result is the foundation of substantial evidence. The permissible reasons turns on the articulation standards. In essence, the decision holds that the ALJ did not have sufficient reasons for rejecting Ferguson's testimony. That sounds more an error of law rather than a failure of evidence. Therein lies the nuance. The reasons articulated were insufficient to persuade the reasonable mind under Biestek and therefore the decision lacks the support of substantial evidence. It would be easier and avoid Judge Rawlinson's dissent if the decision -- and the decades of precedent -- called a failure to state clear and convincing reasons for rejecting the symptom testimony an error of law and a failure of substantial evidence. The clear and convincing standard does invoke a mixed question of law and fact. 

Judge Rawlinson rails against the decision because the ALJ did not reject Ferguson's testimony but actually incorporated the testimony into the residual functional capacity assessment. The decision summarizes the record that the ALJ discounted the testimony about the severity and frequency of headaches caused by a history of epilepsy, Arnold-Chiari malformation, and headaches as a separate impairment. Ferguson has headaches that occur two to three times per week and last for up to two days. Judge Rawlinson says that the ALJ accepted the symptom testimony. The ALJ did find headaches but rejected the intensity and persistence of those headaches. This part of the dissent is semantically wrong. 

Judge Rawlinson doubles down on the ALJ reliance of activities of daily living. Ferguson watched television and played video games daily (Judge Rawlinson's emphasis). We should play along. Ferguson turns on the TV and plays games every day. He plays for hours and hours. Two or three days a week, he has a headache that lasts for two hours and he cannot watch TV or play games for those two hours. Is the fact that Ferguson watches TV or plays games for eight hours a day evidence that Ferguson could perform the sustained requirements of work on a regular work schedule? Of course not. One or two interruptions per week for up to two hours is an unacceptable interruption of the work pace and productivity required of competitive work. Taking car of wild cats, making meals, building models, attending to self-care, possessing the knowledge and ability to drive do not detract from an episodic impairment. 

If Ferguson had testified that he had headaches 16 hours a day and slept the other 8 hours, having any activity that required concentration to task would contradict the testimony. That was not his testimony according to the decision and the dissent. The substantial evidence standard is not high but it is not a trough either. Substantial evidence satisfies the reasonable mind. Having a host of activities of daily living does not negate the interruption of those activities two or three times per week for up to two hours per day. Garrison, 759 F.3d at 1016 addresses the difficulty in applying activities of daily living performed when the person can or wants to perform them to the rigors of performing work functions when the employer wants them done. 

Judge Sung joined by Judge Bea reached the right result. The ALJ does not have discretion to reject the testimony about the severity, persistence, and impact of symptoms on the ability to function simply by pointing to the medical evidence or that the claimant does not vegetate in a dark room. That is not the standard. The question is and has always been whether the person could get to work every day, remain productive throughout the day, and continue that pattern week after week, month after month. 

You are an employer. You have a simple job for Ferguson to do. He leaves early, arrives late, or is unproductive for up to two hours at a time twice a week. How long does that pattern last before Ferguson gets fired -- by you. Severe headaches that render the person unable to function in a work setting on a repeating basis cannot sustain work. 

The dissent is wrong. 

Hat tip to Alyson Young and Kevin Kerr. Lawyers do not make enough money on SSI cases in federal court. Lawyers do not make enough money in Social Security cases to warrant a trip to the Court of Appeals in any case. We take the cases because someone has to hold the agency's feet to the fire and someone has to correct persistent errors in the district courts. It is a loss leader. It is the right thing to do. We who journey into the federal courts have more lucrative things to do. But we seek justice because the system needs it.  


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Suggested Citation:

Lawrence Rohlfing, Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection, California Social Security Attorney (March 15, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.




 




Friday, March 8, 2024

January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, two in January. We take a look at those two dispositions to get a sense of what works and what does not work. 

1. Cross v. O'Malley - We discussed using the APA as a basis for reviewing SSA decisions and actions in the discussion of published part of the disposition of this case. The court affirmed the Commissioner. 

    a. In the memorandum, the court repeats the conclusion that the refusal to reopen or revise a prior decision/determination is not subject to judicial review. 

    b. Dr. Loreli suggested caution in relying on test results and observed that Cross gave up quickly. The ALJ relied on inconsistencies (not specified in the memorandum) between Dr. Loreli's opinion and the medical records.

    c. Cross raised error in failing to include PCOS (polycystic ovary syndrome) is the list of severe impairments. The ALJ proceeded past step two. The ALJ would include limitations from severe and non-severe impairments in the residual functional capacity assessment. Counsel conceded at oral argument that the record did not include evidence of limitations from PCOS during the relevant period. 

    d. Cross contended that the ALJ did not properly consider the symptoms and limitations. The memorandum cites the ALJ reliance on inconsistencies about the presence of seizures, the need for daytime sleeping, the ability to drive, and activities of daily living. 

    e. Cross contended that the ALJ failed to include all limitations in the examination of the vocational witness. This is not a separate issue but a rehash of the opinion evidence and testimonial evidence issue. The step five hypothetical question issue compares the question to the RFC. This issue is otherwise relegated to a materiality component of the second, third, and fourth issues. 

2. Kennedy v. O'MalleyThe court affirmed the Commissioner. 

    a. Kennedy provided evidence that Dr. Pickett provided false evidence in another case, not this case but another case. Kennedy did not provide that evidence to the ALJ. Nor did Kennedy present the evidence to the district court. The issue was waived. Nor could Kennedy point to any part of the report in this case that was false. 

    b. Kennedy raised the issue rejected in Cross. A panel cannot override a precedential decision of another panel. 

    c. Kennedy contended that the ALJ improperly rejected parts of one consultative examiner's opinions and all of the other CE. The ALJ relied on normal EMG studies to reject lifting limitations below the 10/20 required by the definition of light work. The ALJ (referred to as IJ in the memorandum) could reject an unexplained conclusion as neither inherently valuable or persuasive. 

    d. Kennedy raised the excess pain argument. The ALJ pointed to evidence of malingering and the lack of objective findings. Kennedy participated in pain management but stopped taking the medication. 

    e. The ALJ did not address the observations of the SSA employee citing 20 CFR § 404.1520c(d). The panel got it wrong. The regulations bind the ALJ to "consider all of the evidence presented, including [...] observations by our employees." 20 CFR § 404.1529(c)(3). "Consider" means what it means in grade school, "show your work." 

    f. Kennedy contended that the ALJ failed to include all limitations in the examination of the vocational witness. See the discussion of Cross, supra, at paragraph e. 

The common thread is Cross and Kennedy is mistaking an incomplete hypothetical that matches the RFC assessed as an independent issue. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (requiring remand and reconsideration because the ALJ's hypothetical did not reflect all of the claimant's limitations). It is not. The incomplete hypothetical show materiality of an RFC that lacks the support of substantial evidence. Bruton v. Massanari, 268 F.3d 824, 828 n.1 (9th Cir. 2001) (ALJ could not rely on the grids where the RFC has a non-exertional limitation not considered, that the ALJ did not find to be true).

___________________________

Suggested Citation:

Lawrence Rohlfing, January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working, California Social Security Attorney (March 8, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.




 

Saturday, February 24, 2024

Accessing ORS Reports from Job Browser Pro -- Marker for Example

  Vocational witnesses identify marker, DOT 209.587-034, as a go to light occupation with simple routine or repetitive duties involving occasional contact. With reasoning level 2, marker fits the simple work mantra in many jurisdictions. VW find refuge in this occupation; Job Browser Pro estimates 165,000 jobs. 

One of the features of JBP is the hyperlink button to the ORS data. JBP reports the first final and second final wave estimates. For marker, the hyperlink button to "Show ORS Data" is greyed out. With 2,8 million jobs in the occupational group and 165,000 jobs in the DOT code, certainly the Bureau of Labor Statistics has gotten to this occupational group. It has. 

The 2018 revisions of the Standard Occupational Classification moved SOC 43-5081, stock clerks and order fillers, to SOC 53-7065, stockers and order fillers. The O*NET divided stock clerks and order fillers into detailed categories:

  1.     SOC 43-5081.01, Stock Clerks, Sales Floor
  2.     SOC 43-5081.02, Marking Clerks
  3.     SOC 43-5081.03, Stock Clerks - Stockroom, Warehouses, or Storage Yard
  4.     SOC 43-5081.04, Order Fillers, Wholesale and Retail Sales
The 2018 ORS dataset provided provides data for the first, third, and fourth, but not for marking clerks. The 2018 SOC moved the category to 53-7065. The O*NET did not maintain the four detailed classifications. Subsequent editions of the ORS also dropped the four O*NET detailed data and adopted the singular SOC classification for the numerous jobs and occupations.

The ORS did not cover marking clerks, including marker, in the 2018 data set. The ORS covers the entire range in the 2023 data set. Occu Collect provides all the reports in the front page or in archives. The question is how to extract the data from JBP and SkillTRAN.

Clicking on the hyperlink button takes the user to https://online.skilltran.com/cbp/orsResults.php?dot=XXXXXXXXX. If you try to go there directly, it won't work. That URL works from JBP but not natively. The nine Xs are the DOT code. Open JPB to any occupation that has ORS data. I use lens inserter. When you get to the DOT estimate for that other occupation, click on the ORS hyperlink. When JBP opens your browser to that page, change the URL with the DOT code for your occupation to the DOT code for marker, no hyphen, no spaces, "209387034." You now have the 2023 ORS data for stockers and order fillers.

What does the ORS tell us about stockers and order fillers? The jobs require SSA defined medium exertion and require more than six hours of standing and walking, 

Some may notice the the "SSA definition of medium exertion." BLS defines light exertion as lifting, carrying, pushing, and pulling up to 25 pounds occasionally. The DOT used 20 pounds as do the SSA regulations. No matter what the ruling, ALJ, VW, or court may say, there is not soft much less a hard limit on the amount of standing and walking required of any range of work except sedentary, 2.7 hours. 

Use of other resources in Occu Collect as well as hyperlinked in JBP on the detailed job specialty page, the O*NET OnLine in particular, confirm the pedestrian observation that unskilled work requires working on conjunction with or proximity to others. Stockers and order fillers of occasional or no contact with others in 4% of jobs and do not have at least a fairly important job function of working with a group or team in 4% of jobs. 

If the question asks for light work (SSA definition), standing/walking six hours combined in a workday, simple and routine/repetitive tasks, involving no more than occasional contact/interaction with other, the occupation of marker does not fit based on exertion, standing/walking, and contact with others. JBP does not integrate the data from the ORS or the O*NET into its job number estimates. Those estimates arrive from an occupation-industry intersection divided by the DOT codes at that intersection. 

Some limitations in the tools we use have a workaround. This is one of them. 


___________________________

Suggested Citation:

Lawrence Rohlfing, Accessing ORS Reports from Job Browser Pro -- Marker for Example, California Social Security Attorney (February 24, 2024, corrected March 8, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.




 

Monday, February 19, 2024

The 2023 Occupational Requirements Survey Data Set -- A Must Use Resource

The Bureau of Labor Statistics released the 2023 data set for the ORS. BLS has finally filled in the gaps and reported significantly more data than in either the first wave culminating in the 2018 first wave or any data set from 2019 to 2022. I examined the data for the go to occupations for vocational experts in the light and sedentary categories -- Production Workers, All Other (SOC 51-9199). This list contains 52 of 137 sedentary unskilled codes and over 400 of the 1,400 light unskilled DOT codes. The testimony that any of those occupations represent more than a handful of jobs is unsupportable. 

The ORS reports that production workers require:

  1.   strength required is sedentary: -
  2.   strength required is light: 11.1%
  3.   strength required is medium: 84.5%
  4.   strength required is heavy: 4.2%

The Occupational Outlook Handbook reports that production workers represent 226,900 jobs in the nation. The Occupational Employment & Wage Statistics reports that production workers represent 252,660 jobs in the nation. Trusting government statistics reported to OMB standards, there are no jobs in the sedentary exertion and fewer than 28,000 jobs in the light exertion categories. The ORS reports that production workers have: 

  1.   specific vocational preparation is beyond short demonstration through 1 month: 26.4%   
  2.   specific vocational preparation is over 1 month through 3 months: 35.6%
  3.   specific vocational preparation is over 6 months through 1 year: -
  4.   specific vocational preparation is over 1 year through 2 years: 1.4%
  5.   specific vocational preparation is over 2 years through 4 years: 13.5%
On the issue of how much standing and walking is required for production workers:
  1.    hours of standing (10th percentile): 6
  2.    hours of standing (25th percentile): 6
  3.    hours of standing (50th percentile - median): 8
  4.    hours of standing (75th percentile): 8
  5.    hours of standing (90th percentile): 8
The percent of the day reports suggest that some of the jobs are part-time:
  1.    percent of day standing is required (10th percentile): 75%
  2.    percent of day standing is required (25th percentile): 100%

The existence of sedentary and light unskilled work that exists in significant numbers is less than 7,000 jobs --  total. That gross estimate assumes that skill levels cross exertional levels with the same relative frequency. If skill level and exertion level as inversely correlated (sedentary and light work are more likely to represent skilled or semi-skilled work), then the estimate goes down. If the person has a limit to standing and walking 6 hours in a workday, the estimate drops by over half. 

Job Browser Pro hyperlinks to the ORS data reporting the 2018 final first wave and the 2023 final second wave data side-by-side. OccuCollect reports the data files for 2017 through 2022 in the Archives and 2023 final second wave data on the main page. Note that Job Browser Pro reports the ORS data but does not incorporate that data into job number estimates. 

Vocational testimony that any unskilled production worker occupation represents a significant number of jobs, go after the issue. The witness is wrong. 

Don't let vocational witnesses rob your clients of benefits or you of hard-earned fees. 


___________________________

Suggested Citation:

Lawrence Rohlfing, The 2023 Occupational Requirements Survey Data Set -- A Must Use Resource, California Social Security Attorney (February 19, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.




 



Sunday, January 7, 2024

Another Argument Crossed Off -- Cross v. O'Malley

The Ninth Circuit published its opinion in Cross v. O'Malley on January 5, 2024. This is the first published opinion of the year and the first decision by the Ninth Circuit to name O'Malley as the COSS. 

Cross contends that the COSS erred in eliminating the treating relationship from the first tier of consideration of medical evidence under the Administrative Procedures Act. The Court cited the broad powers delegated to the COSS under the Social Security Act. 42 USC § 405(a). The Court relied on Bowen v. Yuckert, 482 U.S. 137, 145 (1987) and Heckler v. Campbell, 461 U.S. 458, 466 (1983). 

Yuckert does not cite the Administrative Procedure Act. Campbell cites 5 USC § 556(e) for the proposition that taking administrative notice requires that the litigant be given the opportunity to respond. 

In Califano v. Sanders, 420 U.S. 99, 103-04 (1977), Court held that the Seventh Circuit reliance on the APA for the jurisdiction to review a refusal to reopen and revise was wrong. The Court held that "the APA is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency actions." Id. at 105. 

The Social Security Act incorporates the APA into the Medicare reimbursement cases. 42 USC § 1395oo(f)(1); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). 

Heckler v. Ringer, 466 U.S. 602, 622 (1984) held that the Social Security Act precluded jurisdiction under the APA. See also, Weinberger v. Salfi, 422 U. S. 749 (1975) (constitutional claims barred by the exclusive jurisdiction of § 405(h). 

Does the APA apply to regulations promulgated by SSA? Maybe but Cross does not make clear that it does. 

Still puzzled. 


___________________________

Suggested Citation:

Lawrence Rohlfing, Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi, California Social Security Attorney (January 7, 2024) (amended March 7, 2024).

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.




 

Thursday, December 21, 2023

A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi

A civil procedure/appellate law throwback. The foundational cases is Forney v. Apfel524 U.S. 266 (1998). In a unanimous decision, Forney held that a prevailing plaintiff in an action to review the final decision of the Commissioner could appeal where the District Court reversed on some issues, but not all the issues that the plaintiff raised. 

In Forney v. Chater, 108 F.3d 228 (9th Cir. 1997), the Circuit Court held that the Restatement Second of Judgments sec. 27 did not impose collateral estoppel on the issues the District Court affirmed, only the issues where the District Court reversed the final decision of the COSS. The Supreme Court reversed because an aggrieved party can appeal a decision granting in part and denying in part the remedy requested. 

On remand from the Supreme Court, the Ninth Circuit (176 F.3d 482 (Table) 1999 WL 197237) affirmed the finding that the ALJ properly rejected the treating physician; reversed on the rejection of Forney's testimony; reversed on the rejection of Forney's husband's testimony; found that the failure to account for limitations caused by pain rendered the vocational expert testimony insubstantial; and affirmed the District Court finding that the ALJ failed to consider the DOT/SCO (a year before the COSS published SSR 00-4p). Having had his deep dive into the Restatement reversed, Judge Kleinfeld dissented that he would affirm the ALJ on all counts. 

On a side note, the COSS did not cross-appeal from the judgment of the District Court. As the majority stated, that issue was not before Court of Appeals. 

Enter Sakowitz v. Kijakazi. Part 3 of the decision says:

Because neither party challenges the district court’s decision to remand for reconsideration of Dr. Warbritton’s opinion, we do not address this aspect of the district court’s decision.

Sakowitz won at the District Court. As Forney on remand suggests, a panel could take it all away even if the COSS does not cross-appeal. The majority in Forney on remand and this panel have it right. The Court of Appeal does not have jurisdiction to rake away the favorable parts of the District Court judgment absent a cross-appeal from the COSS. 

Sakowitz adds to the breadth of the remand order. Sakowitz holds that the ALJ erred in rejecting the symptom and limitation testimony; erred in rejecting the opinion from a second treating physician; and failed to provide germane reasons for rejecting the opinions of treating chiropractors. 

Are Forney appeals necessary? If the remand hearing is de novo on all issues, the answer is "no, Forney appeals are not necessary unless the plaintiff has a real shot at a reversal for the payment of benefits." If a remand hearing is not de novo but invokes law of the case and rule of mandate, then Forney appeals are absolutely necessary to broaden the scope of the remand hearing. 

The law of the case and the rule of mandate apply in Social Security cases. The purpose of an appeal (or complaint for review) is to narrow the scope of the later proceedings. The purpose of a court order is to correct errors. The idea that a step five reversal on a reaching issue would require the ALJ to reconsider Forney's, her husband's, and to include those factors into an examination of the vocational expert represents a very large set of dice and a prayer for a benevolent ALJ. Absent a court order calling for a de novo hearing, the proceedings on remand must comply with the order of the District Court. 

Sakowitz does not cite Forney. It doesn't have to cite Forney. The work done 25 years ago settled the law. We no longer need a law review article hashing through the Restatement Second of Judgments or the relevant Supreme Court decisions on appealability or when a party is aggrieved. 

Hat tip to Julien Swanson, the attorney of record in Sakowitz

And a hat tip to Ralph Wilborn, Tim Wilborn, and Eric Schnaufer for Forney so long ago. 


___________________________

Suggested Citation:

Lawrence Rohlfing, A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi, California Social Security Attorney (December 21, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.