The Court Genuflects to the Regulations -- Kitchen v. Kijakazi

The Ninth Circuit published Kitchen v. Kijakazi on September 14, 2023. The Court disposed of five issues:

    1. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (holding that an ALJ is required to address the Veterans Administration disability rating), is no longer good law.

    2. The ALJ decision complied with the clear and convincing standard for rejecting symptoms and limitation testimony.

    3. The ALJ complied with the articulation burden to reject opinion evidence. 

    4. The ALJ decision adequately addressed the criteria for the mental listings. 

    5. The ALJ did not propound an incomplete hypothetical. 

Kitchen is a veteran injured in the Iraq conflict. The VA awarded Kitchen a 70% rating for PTSD, 10% rating for synovitis, and 10% rating for limited knee motion. The VA does not add ratings together so 70 + 10 + 10 = 80. 

Two doctors examined Kitchen. On orthopedic examination, Kitchen had normal knee motion. On psychological evaluation, Kitchen had either mild or marked limitations in the ability to interact with others. VA doctors described Kitchen as markedly to extremely limited in mental functions. 

Kitchen filed three applications for benefits, all denied. Kitchen filed a fourth application in 2020 claiming disability based on PTSD, depression, anxiety, insomnia, headaches, and residuals of the right knee injury. A medical expert at the administrative hearing identified marked limitations in social function but that the mental residual functional capacity precluded public and close teamwork with other people but that he could tolerate supervision and his other areas of mental function were at or above the normal range.

The ALJ assessed Kitchen as retaining the residual functional capacity to perform light work, simple and routine tasks, no teamwork. The District Court quoted the mental RFC as: 

Regarding interaction with others, the claimant would work best in an environment in proximity to, but not close cooperation (i.e., teamwork), with co-workers and supervisors, and must work away from the public. The claimant does have the ability to interact appropriately with others.

and, 

Regarding the ability to adapt or manage; the claimant would work best in an environment that is routine and predictable, with goals set by others, low stress, not production or quota based. The claimant does have the ability to respond appropriately, distinguish between acceptable and unacceptable work performance; or be aware of normal hazards and take appropriate precautions.

The vocational witness described work for Kitchen's medical-vocational profile as a small product assembler, marker, or electronics worker. 

The Court disposed of the issues in short and predictable order. The Court expressly gave last rites to McCartey based on the 2017 regulatory changes. Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022) holds that the law of the circuit no longer controls in light of the change in regulations. Woods cites Lambert v. Saul, 980 F.3d 1266, 1274 (9th Cir. 2020) for that proposition. Kitchen cites the Fourth Circuit decision in Rogers v. Kijakazi, 62 F.4th 872, 879– 80 (4th Cir. 2023). 

Lambert and Rogers have one overriding characteristic in common -- invocation of the deference doctrine in Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs,, 545 U.S. 967 (2005); Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). Brand X deference allows the agency to overturn settled law of the circuit by reinterpreting the statute. Congress gives the executive branch the power to do so. The grant of authority shields members of Congress from the ire of constituents. The grant of deference removes the power of the courts to say what the law is. Not advocating, just describing.

The remaining issues fall by the wayside having jettisoned McCartey. So let us get to what should have been. The fifth issue is not an issue. The disconnect, if any, between a physician opinion or claimant testimony and the RFC/hypothetical question to the vocational witness is a materiality factor, not a separate issue. The rejection of the opinion or testimony is material because those limitations were not included.

The District Court tells us that the mental RFC contained a production quota limitation in addition to the teamwork limitation. We must examine those issues but that examination is hampered by the lack of a DOT code for any of the three occupations cited. That being the case, I engage in the professional assumption game.

Small products assembler I (DICOT 706.684-022) is a production workers occupation. The essential job function is to work at production pace. The DOT describes the occupation as "Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker." On both the teamwork and production limitations, this occupation has an apparent conflict with the DOT requiring an explanation pursuant to SSR 0-4p.

Electronics worker (DICOT 726.687-010) is another production worker occupation. The DOT describes the summary function of the occupation as: "Performs any combination of following tasks to clean, trim, or prepare components or parts for assembly by other workers." This occupation requires production rate pace and teamwork and has the same apparent conflict with the DOT analyzed under SSR 00-4p.

Marker (DICOT 209.587-034) is warehouse work, or to use the Department of Labor label, stockers and order fillers. The overwhelming majority of stockers and order fillers have constant contact (face to face, by telephone, or otherwise) with others per the O*NET. Over 90% of stockers and order fillers work with a group or team as important, very important, or extremely important per the O*NET. More importantly, stockers and order fillers engage in medium work per the ORS.

We will lose on the deference doctrine. The odds are stacked against us. But we have other tools on our belts -- to eviscerate the vocational witnesses. They are making it up, it is not even close. For anyone to offer up small products assembler and electronics worker as not engaged in production rate pace and not involved in teamwork screams that the witness cannot be believed.

Convince me otherwise.

___________________________

Suggested Citation:

Lawrence Rohlfing, The Court Genuflects to the Regulations -- Kitchen v. Kijakazi, California Social Security Attorney (September 16, 2023) https://californiasocialsecurityattorney.blogspot.com

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