The Ninth Circuit published Stiffler v. O'Malley, 102 F.4th 1102 (9th Cir. 2024) on May 28, 2024. The Court disposed on the second issue first, the persuasive value assigned to the treating physician. The Court found that there is no conflict between "few workplace changes" and the "few variables" described in DOT reasoning level 2.
1. Dr. Khosh-Chashm
Dr. Khosh-Chashm opined that Stiffler had marked differences from peers in social and communication behaviors, struggled to interpret social cues, and had limited decision-making abilities. Dr. Khosh-Chashm opined that Stiffler lacked the skills necessary to maintain gainful employment. Dr. Khosh-Chashm completed medical source statement opining that Stiffler had extreme difficulty with respect to her ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage herself.The Court found that Dr. Khosh-Chashm did not explain his findings. The Court also found that those opinions were inconsistent with those of the Dr. Goldberg and Dr. Bilik.
That begs the question posed by section 416.920c(c) -- compared to what? The regulation and the federal register address equally supported and consistent opinions. Every physician opinion argument must contain a comparison. If the ALJ finds that the favorable opinion is not supported (explained), the question is whether the explanation compares to the opinions expressed by less favorable opinions/findings. If the ALJ finds that the favorable opinion is inconsistent with other findings, then the ALJ must conclude that the accepted findings are inconsistent with the rejected findings. If that were not true, then there could never exist a circumstance where two opinions could be equally supported and consistent requiring the resort to the "relationship factors."
2. Few Workplace Changes
The Court engages in the judicially discovered concept that "workplace" refers to the physical place of work and not procedural changes "in" the workplace. The Court does not tell the world that the ALJ defined workplace changes as the physical environment. A reasonable person would conclude that the Court made it up.
The Court compares "few workplace changes" to the definition of reasoning level 2 in the DOT. Reasoning level 2 requires the ability to deal with few variables. Reasoning level 1 requires the ability to deal with occasional or no variables. One level of reasoning deals with the set and one level of reasoning deals with the frequency. The Court evaded the real question comparing the RFC to both definitions.
This matter is now pending a petition for rehearing or rehearing en banc on issue number 2.
Distressing and disappointed.
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Suggested Citation:
Lawrence Rohlfing, Stiffler v. O'Malley -- Not a Good Decision, California Social Security Attorney (June 29, 2024)
https://californiasocialsecurityattorney.blogspot.com
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