Lambert v. Saul - The Continuing Presumption Died or Continues?

 Continuing to slug through the published Ninth Circuit cases decided in the Andrew Saul tenure, we turn to Lambert v. Saul.  

Lambert v. Saul, 980 F.3d 1266 (2020) -- SSA granted Lambert a period of disability and disability insurance benefits beginning in June 2005. SSA found that disability ended on January 1, 2015. There are two issues:

    1. The ALJ failed to identify the testimony rejected by specific reasons. Non-specific reasons do not meet the standard. The Court reversed and remanded. This holding is consistent with longstanding law of the circuit set forth in Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) and Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). That is not the reason the case was published. 

    2. Lambert addresses the continuing presumption of disability from the finding in 2005 to the cessation in 2015. The continuing presumption of disability arose in Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982). The continuing presumption was popular in the circuits. Rush v. Sec’y of Health & Human Servs., 738 F.2d 909, 914–15 (8th Cir. 1984); Dotson v. Schweiker, 719 F.2d 80, 82 (4th Cir. 1983); Kuzmin v. Schweiker, 714 F.2d 1233, 1237 (3d Cir. 1983); Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982); Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973); Hall v. Celebrezze, 314 F.2d 686, 688 (6th Cir. 1963). The Ninth Circuit affirmed the continuing presumption of disability as a feature of the administrative jurisprudence in Bellamy v. Secretary of Health & Human Services, 755 F.2d 1380 (9th Cir. 1985).

The 1984 reform act made changes to the statute. SSA prmulgated regulation in 1985. Warren v. Bowen, 804 F.2d 1120 (9th Cir. 1986) (per curiam), amended on denial of reh’g, 817 F.2d 63 (9th Cir. 1987) and W.C. v. Bowen, 807 F.2d 1502 (9th Cir. 1987) amended on denial of reh’g, 819 F.2d 237 (9th Cir. 1987) muddied the legal waters casting doubt on the continuing presumption. 

Lambert held that none of the cases decided after Patti had considered teh 1984 Reform Act or the regulations. Lambert then applied Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) to strip the law of the circuit from the continuing presumption in Patti. 

Patti gave rise to Lyle v. Sec'y of HHS, 700 F.2d 566, 568 (9th Cir. 1983). Lyle is the continuing presumption on non-disability:

While Patti involved a prior determination that a claimant was disabled, we believe that its logic should be extended to situations where the claimant has previously been determined not to be disabled.

SSA turned the shield of a continuing presumption of disability recognized in Patti into the sword to decapitate a later claim in Lyle. Turnabout is fair play, the claimants turned that sword into a plow in Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Prior findings plus an advancement of age category did not permit the agency to re-evaluate residual functional capacity or the ability to engage in past work to deny the claim in the older age category. SSA issued Acquiescence Rule 97-4(9) to cabin Chavez to the geographic confines of the Ninth Circuit. 

How is Chavez applied today? The Patti shield, the Lyle sword, and the Chavez plow are used to deny claimants an opportunity to get a second look at the claim for a different time period as a matter of administrative application of circuit precedent. SSA explains the de novo look at a different time period as agency policy. 

Chavez relies on Lyle which is based on an extension of Patti. Lambert overrules Patti in light of the 1984 Reform Act and the 1985 regulations. Because Patti cannot claim law of the circuit status, the underpinnings of Lyle in creating the continuing presumption of non-disability gets buried in the same grave. The death of Patti and Lyle infects Chavez and it gets thrown into the same pit. It is time to cover that grave with the top soil of Brand X deference. 

Getting rid of Lyle and Chavez would give claimants the de novo view of a subsequent time period that hte agency claims is policy. It would end the litigation over subsequent claims casting doubt on cases pending in the courts. See Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010). That would simplify the work of the court system and restore (gag) administrative discretion. 

Lambert should have broad ramifications on the administrative law jurisprudence beyond the continuing presumption of disability. That doctrine percolates in other parts of hte administrative law cases. The courts should liberally apply Lambert. 

Convince me that I am wrong. 

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Suggested Citation:

Lawrence Rohlfing, Lambert v. Saul - The Continuing Presumption Died or Continues?, California Social Security Attorney (April 29, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Monday Morning Quaterback -- Coleman v. Saul

Continuing our march through the published decisions rendered during the short tenure of Andrew Saul as the Commissioner of Social Secuirty, we turn to Coleman v. Saul.  With hindsight and trusting that the record is what the Court describes and possessing experience with the medical expert at the hearing, I put on my helmet and shout out, "put me in coach."

Coleman v. Saul, 979 F.3d 751 (2020) - The course of treatment is pretty clear that Coleman engaged in drug-seeking behavior. He terminated one doctor over the prescription of pain medication and was refused medication by the emergency room after a search found that Coleman received prescriptions for 380 pain pills in 30 days and 800 pills in the preceding five months. The ALJ had sufficient reasons for rejecting treating physician and nurse practitioner opinions that Coleman met the requirements for disability. Coleman rejects the theory that the ALJ should have found a pain disorder and affirmed the finding of just plain drug-seeking behavior. 

Coleman presents a straight clear and convincing standard for rejecting symptom and limitation testimony, specific and legitimate reasons for rejecting treating physician opinions, germane reasons for rejecting nurse practitioner opinions, and refuses to reweigh the evidence of the array of severe impairments. The case does not state any legal principle not already found in the cases. It should not have been published. The case is worthy of comment on an issue appearing in the decision but not addressed by it. 

Allan Levine, M.D., also testified during the April 20, 2016 hearing. Dr. Levine had reviewed the medical record and testified that the various imaging studies and physical examinations showed no evidence of nerve root or spinal-cord compromise, findings required for an impairment to meet Listing 1.04A. He nonetheless opined that Coleman retained less than sedentary functional ability during the year following his May 2015 neck surgery, an opinion that was inconsistent with Dr. Atteberry’s January 2016 examination of Coleman. In addition, Dr. Levine opined that Coleman would be much less limited after May 2016 and could, for example, sit for six out of eight hours in a day.

The medical expert testifies that Coleman could not sustain full-time work from the alleged onset date in 2013 to one year after the neck surgery in May 2014. Again from the Court decision:

Dr. Chang diagnosed Coleman with spinal stenosis in the cervical region and recommended surgery. In May 2015, Dr. Chang performed an anterior C5-C6 discectomy. 

Dr. Levine tells the record that it takes one year to recover from a cervical discectomy. That is consistent with Dr. Levine's testimony in other cases -- I have heard him say exactly that. Dr. Atteberry puts post-surgical recovery at January 2016. The March 2016 scans confirm that Dr. Chang had resolved the underlying pathology. Coleman still meets the 12-month durational requirement. The drug-seeking behavior -- that timeline corresponds to the period just before and after the discectomy.

The legal question is whether the ALJ should have separately adjudicated the period form November 2013 to January, March, or May 2016. The Ninth Circuit held that separating out discrete periods of time is the right approach, a year later. Smith v. Kijakazi. The Ninth Circuit held that no special articulation was necessary to reject the opinions of a non-examining physician under the old regulations. Farlow v. Kijakazi. 

Based on Smith with a reality check from Farlow, Coleman should have asked the ALJ to grant a closed period and asked the courts to find that the ALJ did not have a reasonable basis for rejecting Dr. Levine's testimony on this record. 

Monday morning quarterback ... more like two-years later retrospective with the benefit of later-decided cases. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Monday Morning Quaterback -- Coleman v. Saul, California Social Security Attorney (April 12, 2023) https://californiasocialsecurityattorney.blogspot.com

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

The Range of Worked Maxed Out - Maxwell v. Saul

Trudging through the opinions published under the tenure of Andrew Saul, we turn to Maxwell v. Saul. 

Maxwell v. Saul, 971 F. 3d 1128 (9th Cir. 2020) - this is a case of a split remedy. The Court affirmed the finding of not disabled prior to age 55. As to the period beginning at age 55, the ALJ relied on testimony of a vocational witness that Maxwell could perform two occupations with transferrable skills. For a person limited to light work over the age of 55, that person is not disabled if they possess transferable skills to a range of skilled or semi-skilled work. 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.07, n.2 referring to 202.00(c). Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006), as amended (Nov. 7, 2006) held that a single occupation was not a range of work. Held, two occupations does not satisfy a range of work.

Before getting to the merits, Maxwell held that the claimant does not have an obligation to challenge the ALJ decision before it is written. Nor does the claimant have an obligation to raise purely legal issues to the Appeals Council.

Sales representative, commercial equipment and supplies is a light occupation requiring SVP 4. Labor classifies sales representative as having MPSMS codes of 617 and 460 with work field 292.

Salesperson, burial needs is light work with an SVP of 5. Labor classifies salesperson has having MPSMS codes of 881 and 907 with work field 292.

Whatever skills Maxwell had from her past relevant work, I doubt that she accumulated the transferable skills for MPSMS codes 617, 460, 881, and 907. If the person does not have at least the first two digits of every MPSMS code and Work Field in the past relevant work, transferability of skills does not exist. We discuss the issue of TSA process description in POMS in POMS DI 25015.017 in that blog. The report and recommendation is not available and neither the order adopting or Maxwell inform us of the past work designation. TSA probably does not exist at all in this case. I was and remain ecstatic that the Court reached the right result in Maxwell but would have found the decision more complete by taking the vocational witness and the ALJ to task for violating POMS DI 25015.017.

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Suggested Citation:

Lawrence Rohlfing, The Range of Worked Maxed Out - Maxwell v. Saul, California Social Security Attorney (April 4, 2023) https://californiasocialsecurityattorney.blogspot.com

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