A Dangerous Trend -- Re-Writing the ALJ Decision

Unpublished memoranda -- yawn, they are not precedential.  The only parties that care are the parties to that memorandum and onlookers waiting for trends to develop.  Roy v. Colvin is such a memorandum.

The court found that the ALJ erred in rejecting the opinions of Dr. Eisenhauer.  The question is always materiality -- would it have mattered.  Under Stout v. Commissioner, the thought experiment assumes that the improperly rejected evidence is true and then asks would that credited evidence change the outcome.  Roy finds that the ALJ could have rejected the findings of Dr. Eisenhauer because those findings were brief and conclusory.  But the ALJ never found Dr. Eisenhauer's opinions to be brief and conclusory.  The Ninth Circuit said that.  Neither the District Court before it nor the Ninth Circuit on de novo review gets to weigh the facts.  Did the ALJ commit legal error or did the ALJ make a fact finding lacking the support of substantial evidence?  That is the sole function of the court.

Where the ALJ thinks that the report of a doctor belongs to another person and it turns out the ALJ was wrong and where the ALJ gives no other reasons for rejecting that opinion evidence, the court should NOT re-write the ALJ decision to give a reason that the ALJ did not offer.  "We are constrained to review the reasons that ALJ asserts.  SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)."  Connett v. Barnhart.  The Ninth Circuit lacks the judicial power to add reasons that the ALJ did not articulate.  This stands at the corner of administrative law -- don't excuse a decision because you think this ALJ might have decided it the way that you would because you, the court, are not the fact finder.

Spiva v. Astrue said it best: the government seems "determined to dissolve the Chenery doctrine in an acid of harmless error."

The Ninth Circuit should adopt and follow Spiva lest we all ingest a corrosive acid that gives everyone a jurisprudential ulcer.

Attmore v. Colvin - Medical Improvement Standard

The Ninth Circuit published its opinion in Attmore v. Colvin last week.  The court doesn't publish a lot of any kind of decision.  The case has to reinforce a proposition that the districts are getting wrong, and not just in that case, or say something new that the court has not previously addressed.  Most cases are too fact specific to warrant publication.  Which is why memoranda dispositions are not precedent for anything -- too short on the facts.

Attmore is a something new decision.  Once SSA finds the claimant disabled, the ALJ cannot cut the person off of disability without evidence of medical improvement related to the ability to perform work.  20 CFR 404.1594.  From the facts of the case and the district court decision, the ALJ reasonably found Attmore disabled.  It is also inferred from the decision that the ALJ could have reasonably found that Attmore's disability ceased.  But that isn't enough.  The actions, decisions, and determinations of SSA have to make sense in the whole, not in bifurcated analysis.

If Attmore was disabled for a discrete period of time and there is inadequate evidence of improvement, then SSA could not terminate the period of disability or entitlement to SSI.  The facts limit the reach of the holding.  Attmore had isolated pockets of doing well with other periods of not doing well.  Substantial evidence did not permit an inference of sustained capacity to engage in substantial gainful activity.  The keystone in that bridge is "sustained."

Without the prior finding of disability during the earlier period, Attmore would have had a different problem.  Attmore would have had to prove the inability to engage in work for 12 continuous months.  SSA would have argued, as it typically does, that the pockets of improvement destroy the durational requirement.  But that is a specious argument for another day and another case-focus.

The Court Orders the Payment of Benefits and SSA Drags Its Feet

The court ordered the payment of benefits on a date in the past.  Six months later, the agency has failed to process the claim.  The claimant is prejudiced by the delay because SSI benefits are paid in installments.  POMS SI 02101.020 effectuating 7502 of the Deficit Reduction Act of 2005 (P.L. 109-171). 

If SSA does not initiate the payment of benefits within 21 days, file a motion in the court asking the court to issue an order to show cause why the Commissioner of SS should not be held in contempt.  The claimant is entitled to be paid. 

The claimant should take a copy of the memo and judgment to the congressperson's office and start an inquiry. 

The attorney should write to the District Office and to the Appeals Council Court Case Branch with the judgment and the memorandum demanding immediate processing.