Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi

 The Ninth Circuit published Glanden v. Kijakazi on November 16, 2023. Judge Paez wrote the decision joined by Judge Gould. Judge Graber dissented. Glanden sought disability insurance benefits based on an alleged onset date of December 1, 2017, and date last insured of June 30, 2018. 

In the course of practice, representatives are often tasked with the job of proving disability in a small window. This is one of those cases, a small window. As for this claim, the ALJ terminated the five-step inquiry at step two, the absence of a severe impairment. 

Glanden had a two-and-a-half-year gap in this receipt of medical treatment. In the middle of that two-and-a-half-year gap falls the narrow window, the seven months during which Glanden had the burden of proving that he met the disability requirements of the Social Security Act. 

The Court decision describes the medical expert as testifying that the record as a whole leads to an expectation that Glanden had symptoms serious enough to require treatment in those seven months. That description must entail an equal inference that Glanden's symptoms requiring treatment would continue after the date last insured and up to not more than 12 months prior to the date of application. 

The Court relies on Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005), as the basis for reversing and remanding. The Court distinguishes Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), the precedential case supporting the ALJ's finding of no severe impairments.

Judge Graber focuses on drug-seeking behavior. The presence of drug-seeking behavior does not prove or disprove the presence of severe physical or mental impairments. Judge Graber distinguishes Webb as not supporting the complete absence of medical evidence. Judge Grager describes the resort to wrist surgery prior to December 2017 and the absence of wrist complaints in 2019. Judge Graber also points to the resort to treatment for Glanden's back condition in 2019 after two separate traumas. One of those traumas consisted of an injury while engaged in yard work. 

The treatment notes for the 2019 yard-work injury described Glanden as stable before that incident. The medical expert set up a syllogism: "if that's correct then during the relevant period he wasn't all that symptomatic." 

The medical expert punted according to the majority and the dissent. "Wasn't all that symptomatic" does not mean asymptomatic. Serious symptoms are inconsistent with not "all that symptomatic."

And that is the problem. The ALJ adduces an ambiguity and instead of resolving it and demanding the expert give an opinion, the ALJ determines to resolve the ambiguity against the claimant. The representative at the hearing does not jump in and explore that ambiguity either hoping that the ALJ will go with the serious symptoms instead of the not all that symptomatic syllogism. Neither is the right approach. In the context of administrative hearings where no one knows what the experts will say before the hearing, the inquisitor ALJ and the retained representative must ask questions that they do not know the answer to. This is unless the ALJ announces the direction of the decision. The ALJ must develop the record for the claimant even if the claimant has professional representation. The representative must never trust the ALJ to develop the record for the client or to adopt a pro-claimant mindset in administering a safety-net social program. The Court rightly put the onus on the ALJ to do more. Some judges in the Ninth Circuit would have blamed the representative and voted with Judge Graber. 

Glanden is now precedent -- or will be 45 days after the publication of the decision. As for the gap in treatment scenario, consider Glanden fact specific. Glanden put up the bookends of treatment before and after the long period of no treatment and the medical expert testified to an expectation of serious symptoms. On those facts, Glanden is replicable. I expect those facts to represent the furthest reach of the inference with no treatment on the nonfrivolous legal conclusion at step two. The problem is establishing a listing or residual functional capacity, both burdens on the claimant. 

Glanden will prove useful in other treatment gap cases. Counsel should cite Glanden in response to a gap in treatment as requiring the ALJ to interpolate consistency between two data points absent evidence to suggest a parabola instead of a straight line. 

The first sentence of the last paragraph illustrates Glanden's problems on remand:

We express no view as to whether Glanden will succeed in proving that he is entitled to benefits; we hold only that denial at step two was premature. 

Whether Glanden can prevail on remand with a burden of proving up a residual functional capacity remains to be seen. 

Anticipation ...

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Suggested Citation:

Lawrence Rohlfing, Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi, California Social Security Attorney (November 17, 2023)

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