A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi

A civil procedure/appellate law throwback. The foundational cases is Forney v. Apfel, 524 U.S. 266 (1998). In a unanimous decision, Forney held that a prevailing plaintiff in an action to review the final decision of the Commissioner could appeal where the District Court reversed on some issues, but not all the issues that the plaintiff raised. 

In Forney v. Chater, 108 F.3d 228 (9th Cir. 1997), the Circuit Court held that the Restatement Second of Judgments sec. 27 did not impose collateral estoppel on the issues the District Court affirmed, only the issues where the District Court reversed the final decision of the COSS. The Supreme Court reversed because an aggrieved party can appeal a decision granting in part and denying in part the remedy requested. 

On remand from the Supreme Court, the Ninth Circuit (176 F.3d 482 (Table) 1999 WL 197237) affirmed the finding that the ALJ properly rejected the treating physician; reversed on the rejection of Forney's testimony; reversed on the rejection of Forney's husband's testimony; found that the failure to account for limitations caused by pain rendered the vocational expert testimony insubstantial; and affirmed the District Court finding that the ALJ failed to consider the DOT/SCO (a year before the COSS published SSR 00-4p). Having had his deep dive into the Restatement reversed, Judge Kleinfeld dissented that he would affirm the ALJ on all counts. 

On a side note, the COSS did not cross-appeal from the judgment of the District Court. As the majority stated, that issue was not before Court of Appeals. 

Enter Sakowitz v. Kijakazi. Part 3 of the decision says:

Because neither party challenges the district court’s decision to remand for reconsideration of Dr. Warbritton’s opinion, we do not address this aspect of the district court’s decision.

Sakowitz won at the District Court. As Forney on remand suggests, a panel could take it all away even if the COSS does not cross-appeal. The majority in Forney on remand and this panel have it right. The Court of Appeal does not have jurisdiction to rake away the favorable parts of the District Court judgment absent a cross-appeal from the COSS. 

Sakowitz adds to the breadth of the remand order. Sakowitz holds that the ALJ erred in rejecting the symptom and limitation testimony; erred in rejecting the opinion from a second treating physician; and failed to provide germane reasons for rejecting the opinions of treating chiropractors. 

Are Forney appeals necessary? If the remand hearing is de novo on all issues, the answer is "no, Forney appeals are not necessary unless the plaintiff has a real shot at a reversal for the payment of benefits." If a remand hearing is not de novo but invokes law of the case and rule of mandate, then Forney appeals are absolutely necessary to broaden the scope of the remand hearing. 

The law of the case and the rule of mandate apply in Social Security cases. The purpose of an appeal (or complaint for review) is to narrow the scope of the later proceedings. The purpose of a court order is to correct errors. The idea that a step five reversal on a reaching issue would require the ALJ to reconsider Forney's, her husband's, and to include those factors into an examination of the vocational expert represents a very large set of dice and a prayer for a benevolent ALJ. Absent a court order calling for a de novo hearing, the proceedings on remand must comply with the order of the District Court. 

Sakowitz does not cite Forney. It doesn't have to cite Forney. The work done 25 years ago settled the law. We no longer need a law review article hashing through the Restatement Second of Judgments or the relevant Supreme Court decisions on appealability or when a party is aggrieved. 

Hat tip to Julien Swanson, the attorney of record in Sakowitz. 

And a hat tip to Ralph Wilborn, Tim Wilborn, and Eric Schnaufer for Forney so long ago. 

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Suggested Citation:

Lawrence Rohlfing, A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi, California Social Security Attorney (December 21, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi

Catching up reversals by the Ninth Circuit in unpublished memoranda. We can extract a sense of the direction of the court and various panels. Unpublished memoranda are not precedent. Carrier v. Kijakazi is on of those non-precedential decisions. 

Carrier applied for benefits before March 2017. The physician hierarchy applies from case law and the regulatory nod found in 20 CFR 404.1527. See, Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).  The specific and legitimate standard applies. 

The ALJ gave little weight because the treating physician expressed an opinion after the relevant period. Carrier observes that the doctor treated Carrier during the relevant period and the opinion addressed the relevant period. The ALJ relied on non-treating opinions expressed outside the relevant period. Carrier found the articulation not legitimate. 

The ALJ picked references in the treating notes that Carrier was alert and oriented. Carrier points out that the record includes presentations with substantial pain and limitations including pain-induced nausea. The ALJ did not read the alert and oriented references in the context of the record as a whole. 

The ALJ relied on Carrier's activities of daily living. The ALJ did not compare the activities cited to evidence of difficulty making meals or performing household chores. The medical record repeated the subjective statement that cooking aggravated low back pain. Carrier's walking on a treadmill as part of a rehabilitation program one time did not provide a basis for relying on ADLs. Trying to do some gardening and ending up with spasms and increased pain is likewise an insufficient basis for rejecting evidence describing greater limitations. 

The ALJ relied on travel from Seattle to Idaho. But Carrier described the trip as tough and that opiates barely helped. The pain made Carrier nauseas. During a party, Carrier secluded herself in a corner and was embarrassed. The ALJ did not state clear and convincing reasons for rejecting the testimony, did not explain how the activities translated to a work setting, and inappropriately relied on sporadic activities. 

The Court made short shrift of the ALJ's limited treatment of Carrier's testimony. The Court also reached the third-party testimony  finding that the ALJ did not state germane reasons for rejecting that testimony. 

The current regulatory paradigm does away with the specific and legitimate standard. Carrier reverses because the ALJ's stated reasons fail to meet that standard. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) still requires explanations supported by substantial evidence, sufficient to persuade a reasonable mind. Reversing the ALJ's treatment of the treating physician here does not rely on the physician hierarchy described in Lester, this case turns on the lack of persuasive value of the articulations and the lack of evidentiary support for those articulations. The hierarchy is dead but the ALJ still needs statements supported by substantial evidence to reject any physician opinion.

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Suggested Citation:

Lawrence Rohlfing, Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi, California Social Security Attorney (December 15, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

 

An Update on White v. Kiajakzi -- 2023 EAJA

In the rundown of 2022 published Ninth Circuit cases, I wrote:

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.

In the 16 months since publication, courts have cited White 60 times according to Google Scholar. Those cases cite White for the application of Job Browser Pro 26 times. The Court of Appeals cited White in two unpublished memoranda and in the disastrous decision in Wischmann v. Kijakazi. 

On remand, White sought fee relief under the Equal Access to Justice Act. As an aside, everyone should have in their pocket that attorneys do not make money on circuit court appeals. It isn't that we don't get paid, it is that we don't get paid enough, never do. An appeal in any other area of law would generate fees between $60,000 and $100,000. It takes that much effort, skill, and a pinch of luck. The identity of the panel makes a difference, after all we lost in the USDC. 

Back to White's application for fees. Magistrate Judge Allison Claire denied the motion. Judge Claire found that the COSS was substantially justified:

Indeed, the undersigned initially ruled in favor of the Commissioner based on the law as it existed and was understood at the time.

Who cares? Three judges on the Ninth Circuit panel reversed because it was legal error to fail to consider and reconcile the Job Browser Pro evidence. Novelty of a legal question is not a basis for finding substantial justification. Judge Claire continued:

Although Buck v. Berryhill had been decided before this case was filed, neither party referenced it in their briefing, presumably because they were either unaware of the case or believed it did not apply to the facts presented in this case.

Attorneys on both sides of the case have an ethical responsibility to cite to the court the controlling authority. For the plaintiff's attorney, a failure might fall below the standard of care. For the government attorney, the agency acted without substantial justification because the conduct violated the duty of candor owed to the court. Judge Claire continued:

Further, the Ninth Circuit acknowledged an extension of Buck to the circumstances of this case, in which plaintiff did not raise the job availability discrepancy to the ALJ, writing "We recognize that the claimant in Buck submitted his estimated job numbers to the ALJ, and that White submitted his estimated job numbers to the Appeals Council. This distinction is not fatal."

The problem for this analysis, even if factually correct, is that it does not matter. Sims v. Apfel erased the AC issue exhaustion because it is an inquisitorial process. Three justices rely on that proposition in the concurrence in Carr v. Saul. The controlling precedent in the Ninth Circuit is "or" in Meanel v. Apfel. Shaibi v. Berryhill states a best practice but permits submitting evidence to the AC. 

 In response, White raised three defenses to the COSS showing of substantial justification:

(1) the software producing more accurate job numbers was available at the initial ALJ determination level and the Commissioner advanced a false narrative while having ready access to more accurate numbers, 

That's right. The ALJ corps has Job Browser Pro on their desks. They also have the DOT. But they don't use them, at least not most or even a healthy plurality of ALJs perform the SSR 00-4p check much less check the sources cited. And the Ninth Circuit held that the Job Browser Pro evidence was probative because it contradicted the testimony of the vocational expert witness.

(2) the court of appeals held that the rebuttal evidence presented to the Appeals Counsel was significant, probative, and reasonably likely to change the outcome of the disability determination, yet the Appeals Counsel upheld the ALJ, and 

That is the holding of the panel. 

(3) the Commissioner's own vocational expert witness made false statements about job availability, and this misconduct cannot be substantially justified. 

The agency and the courts continue to embarrass themselves and hold the system to shame for accepting and excusing vocational witness prevarication. Justice Gorsuch wrote in his dissent in Biestek that false testimony cannot be substantial evidence whereas the majority affirmed the nonsensical proposition that nut sorter represented a significant number of jobs. No serious person really believes the nonsense that the witness testified to in Biestek. 

The majority in the EAJA appeal rejected the COSS defense and reversed the district court. The agency must clarity and develop the record when there is a vast difference in job numbers. The majority focused on the position of the government as a whole, not isolated aspects. The bottom line advanced by the COSS was that the agency should always be allowed to rely on the vocational witness because they have talismanic insight into the existence, requirements, and numbers of jobs. The majority held that the single sentence in the COSS answering brief that contended that the submission to the AC was reasonable and sufficient to raise a barrier of substantial justification. The majority disagreed. Circuit precedent clearly permits submission of evidence to the AC. 

Judge Miller dissented. He would hold that the COSS was reasonable -- substantially justified. What Judge Miller does not address is Brewes. And that it fatal to his dissent. 

If I represented the COSS, which I don't, I would have argued Ford v. Saul. There, the Court held that rebuttal vocational evidence was subject to the five-day rule and the untimely request for a subpoena was too little too late. Ford is wrong for several reasons but we can discuss that another day. And I suggested that with my see comment in the year rundown. 

Kudos John Metsker on the merits and on the fee appeal. Well done. 

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Suggested Citation:

Lawrence Rohlfing, An Update on White v. Kiajakzi -- 2023 EAJA, California Social Security Attorney (December 7, 2023)

https://californiasocialsecurityattorney.blogspot.com

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