WEP, Civil Service, Military Pension -- Larson v. Saul with a side of Kaufmann v. Kijakazi

The Ninth Circuit did not issue many published decisions during Andrew Saul's tenure. A year into the position, we get to the second.

Larson v. Saul, 967 F.3d 914 (9th Cir. 2020) - does the uniformed services exception to the Windfall Elimination Provision ("WEP") of 42 U.S.C. § 415(a)(7) apply to the Civil Service Retirement System ("CSRS") pensions of dual-status technicians of the National Guard? Background, military service members get a military pension and accrue credits for Social Security for the same years of service. Civil servants do not, they are subject to the WEP. Larson joined the Sixth, Tenth, and Eleventh Circuits and held that the exemption does not apply, the CSRS impacts the SS retirement benefit. Babcock v. Comm'r of Social Sec., 959 F.3d 210 (6th Cir. 2020), Kientz v. Comm'r, SSA, 954 F.3d 1277 (10th Cir. 2020), Martin v. Social Sec. Admin., Comm'r, 903 F.3d 1154 (11th Cir. 2018). The Supreme Court reviewed Babcock. Babcock v. Kijakazi, 142 S.Ct. 641 (2022) held that civil-service pension payments based on employment as a dual-status military technician are not payments based on "service as a member of a uniformed service" under 42 U.S.C. § 415(a)(7)(A)(III).

When four different panels in four different circuits go the same way, it is an uphill battle. The Eighth Circuit held that the WEP exception applied. Petersen v. Astrue, 633 F.3d 633, 637-638 (8th Cir. 2011). Justice Gorsuch in dissent would have found that the exception did apply because of the unique nature of the service by guardsmen wearing the uniform while in a civil service position. 

Rant mode on.

I take this opportunity to note a pet peeve of mine, an ongoing battle with one district court. First, the defendant, appellee, or respondent is not the Commissioner of the Social Security Administration. The named party is the Commissioner of Social Security. The statute uses Commissioner of Social Security 162 times in 42 U.S.C. § 405 and not once refers to the Commissioner of the Social Security Administration. Second, 42 U.S.C. § 405(g) describes the survival of the civil action notwithstanding any change in the person occupying the office of Commissioner of Social Security or any vacancy. As the Supreme Court does, name the person in the office in that person’s official capacity as designated in the statute.

Finally, there is not now and there will not be a Commissioner of Social Security until Congress amends the statute to make the person in that office subject to service at the discretion of the President. The unconstitutional “for cause” protection of an agency head needs to exit the statutory scheme. Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022).

Rant mode off. 

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Suggested Citation:

Lawrence Rohlfing, WEP, Civil Service, Military Pension -- Larson v. Saul with a side of Kaufmann v. Kijakazi, California Social Security Attorney (March 29, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Don't Call Saul -- Ford v. Saul

“On June 17, 2019, Saul was officially sworn in as the Commissioner of Social Security at the agency's offices in Washington, D.C. […] On July 9, 2021, Saul was removed from his position as commissioner by President Joe Biden, after he refused a request to resign.” Wikipedia. During that period, the Ninth Circuit decided eight cases resulting in published and precedential decisions. We start with Ford v. Saul.

Ford v. Saul – The vocational expert testified to 130,000 addresser and 9,800 ink-printing jobs in the national economy. The vocational expert testified that she averaged the number of jobs reported by the Department of Labor, the Chamber of Commerce, Social Security, the Census Bureau, the International Trade Association, and adding that Alaska had good national number job numbers. The vocational expert did not have his notes to explain the averaging.

Held, the ALJ had adequate reasons for rejecting the opinions of treating physicians that Ford could work (and did work) part-time. The opinions were inconsistent with objective findings and Ford’s activities including working part-time six to eight hours per day. Finally, the opinions were not explained.

Ford requested a subpoena post-hearing to further address the vocational evidence. The ALJ denied that request. The Court—incorrectly—applied the five-day evidence rule, that Ford should have anticipated the vocational testimony and asked for the subpoena before ever hearing the testimony. The agency need not require that a vocational expert “always” produce the underlying data upon request. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court found no evidence of a lack of qualifications, untrustworthiness, or contradiction. “There is no need for an ALJ to assess [vocational testimony] reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). 

Biestek lays out the foundation issue with the conjunctive tail: “extrapolating those findings to the national economy by means of a well-accepted methodology.” Biestek, 139 S. Ct. at 1155. According to the decision in Ford, the vocational testimony did not cite to a single source—not one, not any. The testimony cited to agencies but not a source of data within that agency. Let’s take a look at them:

Department of Labor – the DOL publishes the Employment Projections that form the basis of the Occupational Outlook Handbook and O*NET, and the Occupational Employment Statistics (now the Occupational Employment and Wage Statistics). The EP and OOH update every two years, more or less. The OEWS updates every May. Which one is the witness using? We have no idea.

          The OES described word processors and typists (the occupational group for addresser) as representing 47,460 jobs in 2019 and 41,930 in 2021.

          The EP described word processors and typists (the occupational group for addresser) as representing 46,100 in 2021.

Chamber of Commerce – the Chamber of Commerce does not provide easily accessible job numbers data sorted by Standard Occupational Classification codes that would point to addresser jobs in the nation.

Social Security – does not publish job numbers.

Census Bureau – the Census Bureau publishes the Current Population Survey and County Business Patterns. The CPS counts jobs by SOC (occupational) code. The CBP counts jobs by industry (NAICS) code.

          The Census Bureau does not make Table A26 readily available to the public.

          CBP does not provide occupation specific job numbers.

International Trade Administration – is a government resource for competing in the global marketplace. 

The question that Biestek poses and Ford answers in the negative, does the witness have to provide a “well-accepted methodology” when asked on cross-examination even in the complete absence of any obligation to disgorge the actual documents relied upon?

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Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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

2021 Unpublished Memorada Dispositions of the Ninth Circuit

The Ninth Circuit disposes of most claims of any type by unpublished memoranda dispositions. Those decisions are not precedent. Those decisions are not binding on any district court nor on any other panel decisions. See, Please Don't Cite This!  

We start today with the tenure of Kilolo Kijakazi looking for cases that resulted in reversal of the district court decisions affirming the Commissioner. Those favorable outcomes are the minority. 

1. Peksenak v. Kijakazi – One of the last VA cases we will likely see in the Social Security context. The ALJ reasoned that the 90% VA disability rating used a different system for adjudicating disability. This is not a persuasive, specific, valid reason for rejecting the VA rating and error. McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). The Court further rejected the USDC insertion of a new factual reason not articulated by the ALJ. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009).

2. Orcutt v. Kijakazi – The ALJ gave a one sentence boilerplate analysis of Listing 1.04A and did not cite a single finding that Orcutt did not meet at least one criterion of the listing. Mild neural foraminal narrowing satisfies the requirement for evidence of nerve root compression and the ALJ observation of the absence of "hard" evidence of radiculopathy was not supported by substantial evidence. The Court rejected post hoc rationalizations. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). The ALJ similarly erred in rejecting the treating physician.

3. Tadesse v. Kijakazi – The ALJ erred in stopping consideration of mental impairment at step 2 of the sequential evaluation process. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ failed to state clear and convincing reasons for rejecting the treating physician opinions (a PCP) and accepting the state agency opinions where the latter did not include a mental RFC assessment. The ALJ erred in rejecting the therapist notes consistent with the observations of treating sources. Consistent with the medical baseline of a severe mental impairment, the ALJ erred in rejecting Tadesse's testimony.

4. Torres v. Kijakazi – The ALJ gave five reasons for rejecting Torres's testimony. The absence of test results for inflammatory bowel disease is not valid where there is no test. Medical records stated that weight loss is not a symptom of IBS and the absence of weight loss cannot be a valid basis for rejecting symptom testimony. Treatment helping Torres to get through is not a valid basis for a finding of adequate control. The failure to seek more aggressive or frequent treatment must be considered in the context of IBS making travel out of the home difficult and the record did not show the availability of more aggressive treatment.

5. Dalka v. Kijakazi – A continuing presumption of non-disability. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ lacked a factual basis for finding that the PTSD symptoms in 2016 were the same in 2017. Chronic and stable are not inconsistent with disability. The ALJ failed to state clear and convincing reasons for rejecting Dalka's testimony about his PTSD. 

6. Schiaffino v. Kijakazi – This is an EAJA case. The Court reversed and remanded Schiaffino v. Saul, 799 F. App'x 473 (9th Cir. 2020). On remand, Schiaffino sought fees. The COSS did not oppose the application for fees. The USDC denied fees finding substantial justification. The COSS failed to sustain her burden of proof. The USDC abused its discretion in denying fees. Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008).

7. Hocevar v. Kijakazi – The ALJ properly rejected the testimonial evidence and the opinions of a treating physician. The ALJ erred in rejecting the opinion of a second doctor based on the assumption without evidence that Hocevar could manipulate the findings. The ALJ's failure to state specific and legitimate reasons was not harmless because the second doctor conducted a separate evaluation, made other findings, and imposed other limitations that the first physician did not consider.

8. Thompson v. Kijakazi – Another mixed back affirming in part and reversing in part. The ALJ erred in rejecting the treating physician opinions because generally benign did not explain failed treatment through medication. Carrying on recreational activities is not inconsistent with disability. The Court noted a prior USDC remand that found that a statement that hiking and migraines is not legally sufficient. A non-accepted medical source opinion was not inconsistent where the records documented ongoing headaches and abdominal pain.

9. David v. Kijakazi – The ALJ erred in rejecting the opinions of the pain management specialist treating David. The ALJ did not consider the nature and extent of the treating relationship, 80 visits in 7 years. The Court noted the "sea-change" in the medical and legal understanding of fibromyalgia in the past decade. The dissent by Judge Rawlinson would affirm because of the absence of objective findings – but there are not any objective findings for fibromyalgia.

In 2021, the Ninth Circuit issued 62 memoranda dispositions in Social Security cases. The Court reversed in 9 of those cases. A reversal rate approximating 15% is about average.

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Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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

An Overview of the 2022 Ninth Circuit Published Opinions

 We continue our examination of the Ninth Circuit published opinions in Social Security cases by looking at 2022. 

Woods v. Kijakazi, 32 F.4th 785 (2022) - does the treating physician rule survive the 2017 regulatory changes? The short answer is, "no." There is no extra weight assigned to the opinions of treating physicians or examining physicians either contradicted or uncontradicted by a lower tier of physician opinion evidence. All opinion evidence is examined for consistency and supportability. 

Stated differently, can the agency tell the courts what is an is not substantial evidence? That was never really the issue. The COSS accused the courts and the Ninth Circuit in particular of re-weighting evidence. That was never the standard. 

What was the standard is the need for articulation of why the agency had rejected probative evidence. Failure to articulate specific and legitimate or clear and convincing reasons constituted legal error. Part B.3 of the decision affirms that "an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence." 32 F.4th at 792. While the "specific and legitimate" standard is dead, it is clear that the articulation must be factually supported and legally cognizable, i.e., factually specific and legally legitimate. The standard is dead but the need for articulation survives. 

Kaufmann v. Kijakazi, 32 F.4th 843 (2022) - a straight application of Seila Law, the unconstitutional structure of the COSS dischargeable only for cause and the ALJ insulation from review (dischargeable only for cause) does not result in an automatic presumption harm. Why is this constitutional violation not similar to the problem in Lucia and Carr? Probably because the courts have said so.  

Kaufmann has a civil procedure cross-over, application of rule 59. There is no motion for reconsideration in federal court. But the district court has discretion to correct "clear error."  

Miskey v. Kijakazi, 33 F.4th 565 (2022) - Miskey received a Social Security benefits and a public employees retirement benefit from the State of Nevada. Miskey also received a spousal benefit from a deceased spouse. The agency determined that the government pension offset did apply, then that it did not apply, and finally that it did apply. Held, the GPO does apply because the covered employment and the PERS employment were different entities. 

Miskey contended that the agency should have waived the overpayment because he was not at fault. Held, the evidence of fault was not supported and remanded.   

Allen v. Kijakazi, 35 F.4th 752 (2022) - Allen is held civilly as a sexually violent predator under state law. Can Social Security suspend benefits during a period of a person confined under the SVPA? Section 402(s)(1)(A)(iii) of the Act? Held, there are no procedural requirements to suspend benefits so long as the state statute is constitutional. 

Kilpatrick v. Kijakazi, 35 F.4th 1187 (2022) - Kilpatrick submitted evidence that the vocational expert's estimation of job numbers was not reliable. The evidence at issue consisted of old Job Browser Pro data sheets before the estimate of DOT job numbers using an equal distribution methodology ("straight-line method") using data seven years out-of-date. Held, the evidence presented was not probative and warranted no response. 

Not keeping up-to-date on software is inexcusable. Using equal distribution as a methodology for second-guessing vocational testimony is not reliable. But the estimates of part-time versus full-time work should have been considered probative. Kilpatrick suffered from a lack of clarity in the law that generated a faulty evidentiary submission. 

White v. Kijakazi, 44 F.4th 828 (2022) - if the claimant submits rebuttal evidence in the form of Job Browser Pro to the Appeals Council, is a remand necessary to allow the ALJ to address the evidence and to resolve the inconsistency? Held, a remand is appropriate to allow the ALJ to resolve the inconsistency between the vocational testimony and the data provided by Job Browser Pro. 

A number of district courts had held that the ALJ had no duty to address rebuttal evidence not in the DOT and had held that Appeals Council evidence was too late. See, Ford v. Saul. 

Cody v. Kijakazi, 48 F.4th 956 (2022) - an extension of the Lucia and Carr appointments clause to the remand to an ALJ that acted unconstitutionally in issuing the first decision and then hears the case on remand after being constitutionally appointed. Held, the claimant is entitled to a new ALJ even if the claimant did not raise the issue in the first set of court proceedings. 

Cody is a logical and necessary extension of Lucia.  

Farlow v. Kijakazi, 53 F.4th 485 (2022) - if the agency has uncontradicted opinion evidence in a claim filed before March 2017, does the ALJ have to state clear and convincing reasons for rejecting that opinion from a non-examining source? Held, the clear and convincing standard does not apply to non-examining medical opinion evidence.

Part II.A of the decision sets out the issue: "Farlow argues that because Dr. Staley's opinion was the only functional assessment in the record, it could not be rejected by the ALJ without a "clear and convincing" reason." The issue is not whether the ALJ had reasons for rejecting the opinion evidence. Rather, the issue should have been "what evidence supports the ALJ's RFC assessment?" The answer to that question is, "none." The ALJ rejected the only opinion evidence in the record and then gave a lay assessment of RFC. The decision lacked the support of substantial evidence for the RFC assessed. 

Smartt v. Kijakazi, 53 F.4th 489 (2022) - the ALJ rejected the opinions of the of a consulting physician as "extreme" in this pre-March 2017 application. Held, that the ALJ could reject extreme limita6tions described by the consulting physician. 

Why is this case published? This is probably the last pre-March 2017 case that we will ever see. The precedential value of the decision is nil under the consistency and supportability standards. The case did not warrant publication under the Circuit Rules. 

I don't know what "extreme" means in the context described. It apparently means that the physician described the person differently than did the state agency non-examining sources. That isn't extreme, it is different under Orn v. Astrue. The COSS explains in the new regulatory paradigm that sources can have differences of opinion and still both have consistency and supportability. This decision invites and encourages boilerplate decision making -- inserting the word "extreme" as descriptive of evidence that the ALJ wants to reject. 

Eight published decisions in a single year on a narrow part of the administrative law landscape. Kilpatrick and White balance out. Farlow can be distinguished with a different argument. And Smartt is worthless in this context.  

Change my mind on any and all cases.

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Suggested Citation:

Lawrence Rohlfing, An Overview of the 2022 Ninth Circuit Published Opinions, California Social Security Attorney (March 15, 2023) https://californiasocialsecurityattorney.blogspot.com

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

An Overview of the 2021 Ninth Circuit Published Opinions After Saul's Departure

 Claimant-appellants in the Ninth Circuit fare less well today than they did in the past. I have not kept statistical data for the last 40 years, but it seems that way. Let's take a look at the four 2021 published decisions since Kilolo Kijakazi became the Acting Commissioner.  

Brown v. Kijakazi, 11 F.4th 1008 (2021) - a straight application of Lucia and Carr where the claimant wanted to get a remand for the constitutional defect but keep the partially favorable decision for the later period. Held, the COSS could review only the period before the established onset date, not revisit the favorable portions. 

Brown allows claimants to lock the COSS out from issues. This will aid in the application of the rule of mandate in Stacy v. Colvin. 

Wade v. Kijakazi, 14 F.4th 973 (2021) - Wade won in an unpublished decision. Wade got there via a fee waiver, in forma pauperis. Wade sought her printing costs of $0.10 per page. The COSS resisted that where the litigant proceeds IFP, costs are not recoverable from the United States. Held, IFP litigants cannot recover costs from the United States.  

Put this down in the category of, "what took you so long." The COSS should have resisted IFP cost bills for decades but didn't. 

Smith v. Kijakazi, 14 F.4th 1108 (2021) - Smith argued that the ALJ did not properly consider his testimony. Held, the ALJ did properly consider the testimony. Smith argued that the ALJ did not properly consider a period of time when his signs and symptoms were worse. Held, the ALJ failed to properly consider evidence of a period of time when functioning was worse. 

Smith is a commonsense approach to different periods of time. The litigation caution is clear -- make sure the earlier or later period meets the durational requirement of the Act before making the Smith argument. 

Michener v. Kijakazi, 21 F.4th 1177 (2021) - Michener had dual citizenship. Her spouse worked in both the United States and in Canada. Michener received spousal benefits from both countries. SSA found that the Windfall Elimination Provision applied and reduced the benefit payable. Held, Canadian employment constituted earnings for noncovered service and the WEP applies.  

Retire early and retire often, but Social Security will not treat the person as having just those covered earnings. Michener is a straight expected application of the WEP. 

The Court's 2021 published opinions are a mixed bag. Brown is the biggest win of the bunch with application in circumstances outside of the Appointments Clause. Smith is a close second with application to cases where the claimant recovered or had a partial recovery. Cases with medical improvement now require address of each 12-month period separately for listings and residual functional capacity analysis.  

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Suggested Citation:

Lawrence Rohlfing, An Overview of the 2021 Ninth Circuit Published Opinions After Saul's Departure, California Social Security Attorney (March 13, 2022) https://californiasocialsecurityattorney.blogspot.com

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