Farlow v. Kijakazi -- The Clear and Convincing Standard Does Not Apply to DDS Findings

 The Ninth Circuit decided and published Farlow v. Kijakazi on November 16, 2022. Farlow decides that the clear and convincing standard does not apply to uncontroverted opinions/findings of the non-examining physicians.  Farlow relies on Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).  Sousa stands for the proposition that the Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record. Sousa does not address uncontroverted/uncontradicted opinion evidence.  Farlow and Sousa are time-limited to cases arising before March 27, 2017. 

The problem for Farlow rests on the opinion/finding of Dr. Staley. Farlow describes the problem of the state agency physician reviewing the post-hospitalization study of decreased cardiac function. The state agency physician did not review the study two years later describing normal cardiac function.  Slip op. at 3-4. 

As a matter of expert testimony, the testimony is only valuable to the extent that the physician or other expert relies on a proper foundation. In medical malpractice cases, this is labeled the incomplete medical hypothetical. In Social Security cases, we are familiar with the standard that vocational testimony that does not assume an accurate and complete medical-vocational profile is not substantial evidence.  Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).

This is not new and the application moves straight across. The concept of expert testimony requires that admissibility focus on a reliable foundation. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert). If the Federal Rules of Evidence applied, which they do not, an expert opinion that failed to meet the reliable foundation threshold by assuming a complete foundation, the state agency physician opinion is not admissible. Because the administrative law context relaxes the rules of evidence, the opinion of the state agency physician is admissible but easily rejected because it did not assume the later normal ejection fraction shown on cardiac study. 

Farlow reaches an issue that it need not have reached -- the standard for rejecting state agency physician opinions in the old medical evidence hierarchy. Farlow should have stopped at the failure of the state agency physician to assume a complete medical hypothetical and determined that that failure satisfied any standard for rejecting uncontradicted medical opinion evidence from any source.

That observation turns to the litigation strategy. What could Farlow have done differently? The answer is medical opinion from a source, any source, that the history of cardiac disease caused limitations to the ability to function. Medium work is hard. Standing for up to eight hours per day, frequently lifting 25 pounds, occasionally lifting 50 pounds, and the frequent posturing required of medium work proves difficult for any person much less a person with a history of severe cardiac disease. The problem is Farlow is not a legal problem, it is a fact problem. 

"Change my mind."

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Suggested Citation:

Lawrence Rohlfing, Farlow v. Kijakazi -- The Clear and Convincing Standard Does Not Apply to DDS Findings, California Social Security Attorney (November 22, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009.