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Catching up reversals by the Ninth Circuit in unpublished memoranda.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 Unpublished memoranda are not precedent. Carrier v. Kijakazi is on of those non-precedential decisions.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)

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