January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, two in January. We take a look at those two dispositions to get a sense of what works and what does not work. 

1. Cross v. O'Malley - We discussed using the APA as a basis for reviewing SSA decisions and actions in the discussion of published part of the disposition of this case. The court affirmed the Commissioner. 

    a. In the memorandum, the court repeats the conclusion that the refusal to reopen or revise a prior decision/determination is not subject to judicial review. 

    b. Dr. Loreli suggested caution in relying on test results and observed that Cross gave up quickly. The ALJ relied on inconsistencies (not specified in the memorandum) between Dr. Loreli's opinion and the medical records.

    c. Cross raised error in failing to include PCOS (polycystic ovary syndrome) is the list of severe impairments. The ALJ proceeded past step two. The ALJ would include limitations from severe and non-severe impairments in the residual functional capacity assessment. Counsel conceded at oral argument that the record did not include evidence of limitations from PCOS during the relevant period. 

    d. Cross contended that the ALJ did not properly consider the symptoms and limitations. The memorandum cites the ALJ reliance on inconsistencies about the presence of seizures, the need for daytime sleeping, the ability to drive, and activities of daily living. 

    e. Cross contended that the ALJ failed to include all limitations in the examination of the vocational witness. This is not a separate issue but a rehash of the opinion evidence and testimonial evidence issue. The step five hypothetical question issue compares the question to the RFC. This issue is otherwise relegated to a materiality component of the second, third, and fourth issues. 

2. Kennedy v. O'Malley - The court affirmed the Commissioner. 

    a. Kennedy provided evidence that Dr. Pickett provided false evidence in another case, not this case but another case. Kennedy did not provide that evidence to the ALJ. Nor did Kennedy present the evidence to the district court. The issue was waived. Nor could Kennedy point to any part of the report in this case that was false. 

    b. Kennedy raised the issue rejected in Cross. A panel cannot override a precedential decision of another panel. 

    c. Kennedy contended that the ALJ improperly rejected parts of one consultative examiner's opinions and all of the other CE. The ALJ relied on normal EMG studies to reject lifting limitations below the 10/20 required by the definition of light work. The ALJ (referred to as IJ in the memorandum) could reject an unexplained conclusion as neither inherently valuable or persuasive. 

    d. Kennedy raised the excess pain argument. The ALJ pointed to evidence of malingering and the lack of objective findings. Kennedy participated in pain management but stopped taking the medication. 

    e. The ALJ did not address the observations of the SSA employee citing 20 CFR § 404.1520c(d). The panel got it wrong. The regulations bind the ALJ to "consider all of the evidence presented, including [...] observations by our employees." 20 CFR § 404.1529(c)(3). "Consider" means what it means in grade school, "show your work." 

    f. Kennedy contended that the ALJ failed to include all limitations in the examination of the vocational witness. See the discussion of Cross, supra, at paragraph e. 

The common thread is Cross and Kennedy is mistaking an incomplete hypothetical that matches the RFC assessed as an independent issue. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (requiring remand and reconsideration because the ALJ's hypothetical did not reflect all of the claimant's limitations). It is not. The incomplete hypothetical show materiality of an RFC that lacks the support of substantial evidence. Bruton v. Massanari, 268 F.3d 824, 828 n.1 (9th Cir. 2001) (ALJ could not rely on the grids where the RFC has a non-exertional limitation not considered, that the ALJ did not find to be true).

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Suggested Citation:

Lawrence Rohlfing, January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working, California Social Security Attorney (March 8, 2024)

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