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Wade v. Kijakazi, 14 F.4th 973 (2021) - Wade won in an unpublished decision.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.