Monday Morning Quaterback -- Coleman v. Saul

Continuing our march through the published decisions rendered during the short tenure of Andrew Saul as the Commissioner of Social Secuirty, we turn to Coleman v. Saul.  With hindsight and trusting that the record is what the Court describes and possessing experience with the medical expert at the hearing, I put on my helmet and shout out, "put me in coach."

Coleman v. Saul, 979 F.3d 751 (2020) - The course of treatment is pretty clear that Coleman engaged in drug-seeking behavior. He terminated one doctor over the prescription of pain medication and was refused medication by the emergency room after a search found that Coleman received prescriptions for 380 pain pills in 30 days and 800 pills in the preceding five months. The ALJ had sufficient reasons for rejecting treating physician and nurse practitioner opinions that Coleman met the requirements for disability. Coleman rejects the theory that the ALJ should have found a pain disorder and affirmed the finding of just plain drug-seeking behavior. 

Coleman presents a straight clear and convincing standard for rejecting symptom and limitation testimony, specific and legitimate reasons for rejecting treating physician opinions, germane reasons for rejecting nurse practitioner opinions, and refuses to reweigh the evidence of the array of severe impairments. The case does not state any legal principle not already found in the cases. It should not have been published. The case is worthy of comment on an issue appearing in the decision but not addressed by it. 

Allan Levine, M.D., also testified during the April 20, 2016 hearing. Dr. Levine had reviewed the medical record and testified that the various imaging studies and physical examinations showed no evidence of nerve root or spinal-cord compromise, findings required for an impairment to meet Listing 1.04A. He nonetheless opined that Coleman retained less than sedentary functional ability during the year following his May 2015 neck surgery, an opinion that was inconsistent with Dr. Atteberry’s January 2016 examination of Coleman. In addition, Dr. Levine opined that Coleman would be much less limited after May 2016 and could, for example, sit for six out of eight hours in a day.

The medical expert testifies that Coleman could not sustain full-time work from the alleged onset date in 2013 to one year after the neck surgery in May 2014. Again from the Court decision:

Dr. Chang diagnosed Coleman with spinal stenosis in the cervical region and recommended surgery. In May 2015, Dr. Chang performed an anterior C5-C6 discectomy. 

Dr. Levine tells the record that it takes one year to recover from a cervical discectomy. That is consistent with Dr. Levine's testimony in other cases -- I have heard him say exactly that. Dr. Atteberry puts post-surgical recovery at January 2016. The March 2016 scans confirm that Dr. Chang had resolved the underlying pathology. Coleman still meets the 12-month durational requirement. The drug-seeking behavior -- that timeline corresponds to the period just before and after the discectomy.

The legal question is whether the ALJ should have separately adjudicated the period form November 2013 to January, March, or May 2016. The Ninth Circuit held that separating out discrete periods of time is the right approach, a year later. Smith v. Kijakazi. The Ninth Circuit held that no special articulation was necessary to reject the opinions of a non-examining physician under the old regulations. Farlow v. Kijakazi. 

Based on Smith with a reality check from Farlow, Coleman should have asked the ALJ to grant a closed period and asked the courts to find that the ALJ did not have a reasonable basis for rejecting Dr. Levine's testimony on this record. 

Monday morning quarterback ... more like two-years later retrospective with the benefit of later-decided cases. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Monday Morning Quaterback -- Coleman v. Saul, California Social Security Attorney (April 12, 2023) https://californiasocialsecurityattorney.blogspot.com

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

An Overview of the 2022 Ninth Circuit Published Opinions

 We continue our examination of the Ninth Circuit published opinions in Social Security cases by looking at 2022. 

Woods v. Kijakazi, 32 F.4th 785 (2022) - does the treating physician rule survive the 2017 regulatory changes? The short answer is, "no." There is no extra weight assigned to the opinions of treating physicians or examining physicians either contradicted or uncontradicted by a lower tier of physician opinion evidence. All opinion evidence is examined for consistency and supportability. 

Stated differently, can the agency tell the courts what is an is not substantial evidence? That was never really the issue. The COSS accused the courts and the Ninth Circuit in particular of re-weighting evidence. That was never the standard. 

What was the standard is the need for articulation of why the agency had rejected probative evidence. Failure to articulate specific and legitimate or clear and convincing reasons constituted legal error. Part B.3 of the decision affirms that "an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence." 32 F.4th at 792. While the "specific and legitimate" standard is dead, it is clear that the articulation must be factually supported and legally cognizable, i.e., factually specific and legally legitimate. The standard is dead but the need for articulation survives. 

Kaufmann v. Kijakazi, 32 F.4th 843 (2022) - a straight application of Seila Law, the unconstitutional structure of the COSS dischargeable only for cause and the ALJ insulation from review (dischargeable only for cause) does not result in an automatic presumption harm. Why is this constitutional violation not similar to the problem in Lucia and Carr? Probably because the courts have said so.  

Kaufmann has a civil procedure cross-over, application of rule 59. There is no motion for reconsideration in federal court. But the district court has discretion to correct "clear error."  

Miskey v. Kijakazi, 33 F.4th 565 (2022) - Miskey received a Social Security benefits and a public employees retirement benefit from the State of Nevada. Miskey also received a spousal benefit from a deceased spouse. The agency determined that the government pension offset did apply, then that it did not apply, and finally that it did apply. Held, the GPO does apply because the covered employment and the PERS employment were different entities. 

Miskey contended that the agency should have waived the overpayment because he was not at fault. Held, the evidence of fault was not supported and remanded.   

Allen v. Kijakazi, 35 F.4th 752 (2022) - Allen is held civilly as a sexually violent predator under state law. Can Social Security suspend benefits during a period of a person confined under the SVPA? Section 402(s)(1)(A)(iii) of the Act? Held, there are no procedural requirements to suspend benefits so long as the state statute is constitutional. 

Kilpatrick v. Kijakazi, 35 F.4th 1187 (2022) - Kilpatrick submitted evidence that the vocational expert's estimation of job numbers was not reliable. The evidence at issue consisted of old Job Browser Pro data sheets before the estimate of DOT job numbers using an equal distribution methodology ("straight-line method") using data seven years out-of-date. Held, the evidence presented was not probative and warranted no response. 

Not keeping up-to-date on software is inexcusable. Using equal distribution as a methodology for second-guessing vocational testimony is not reliable. But the estimates of part-time versus full-time work should have been considered probative. Kilpatrick suffered from a lack of clarity in the law that generated a faulty evidentiary submission. 

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. 

Cody v. Kijakazi, 48 F.4th 956 (2022) - an extension of the Lucia and Carr appointments clause to the remand to an ALJ that acted unconstitutionally in issuing the first decision and then hears the case on remand after being constitutionally appointed. Held, the claimant is entitled to a new ALJ even if the claimant did not raise the issue in the first set of court proceedings. 

Cody is a logical and necessary extension of Lucia.  

Farlow v. Kijakazi, 53 F.4th 485 (2022) - if the agency has uncontradicted opinion evidence in a claim filed before March 2017, does the ALJ have to state clear and convincing reasons for rejecting that opinion from a non-examining source? Held, the clear and convincing standard does not apply to non-examining medical opinion evidence.

Part II.A of the decision sets out the issue: "Farlow argues that because Dr. Staley's opinion was the only functional assessment in the record, it could not be rejected by the ALJ without a "clear and convincing" reason." The issue is not whether the ALJ had reasons for rejecting the opinion evidence. Rather, the issue should have been "what evidence supports the ALJ's RFC assessment?" The answer to that question is, "none." The ALJ rejected the only opinion evidence in the record and then gave a lay assessment of RFC. The decision lacked the support of substantial evidence for the RFC assessed. 

Smartt v. Kijakazi, 53 F.4th 489 (2022) - the ALJ rejected the opinions of the of a consulting physician as "extreme" in this pre-March 2017 application. Held, that the ALJ could reject extreme limita6tions described by the consulting physician. 

Why is this case published? This is probably the last pre-March 2017 case that we will ever see. The precedential value of the decision is nil under the consistency and supportability standards. The case did not warrant publication under the Circuit Rules. 

I don't know what "extreme" means in the context described. It apparently means that the physician described the person differently than did the state agency non-examining sources. That isn't extreme, it is different under Orn v. Astrue. The COSS explains in the new regulatory paradigm that sources can have differences of opinion and still both have consistency and supportability. This decision invites and encourages boilerplate decision making -- inserting the word "extreme" as descriptive of evidence that the ALJ wants to reject. 

Eight published decisions in a single year on a narrow part of the administrative law landscape. Kilpatrick and White balance out. Farlow can be distinguished with a different argument. And Smartt is worthless in this context.  

Change my mind on any and all cases.

___________________________

Suggested Citation:

Lawrence Rohlfing, An Overview of the 2022 Ninth Circuit Published Opinions, California Social Security Attorney (March 15, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Farlow v. Kijakazi -- The Clear and Convincing Standard Does Not Apply to DDS Findings

 The Ninth Circuit decided and published Farlow v. Kijakazi on November 16, 2022. Farlow decides that the clear and convincing standard does not apply to uncontroverted opinions/findings of the non-examining physicians.  Farlow relies on Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).  Sousa stands for the proposition that the Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record. Sousa does not address uncontroverted/uncontradicted opinion evidence.  Farlow and Sousa are time-limited to cases arising before March 27, 2017. 

The problem for Farlow rests on the opinion/finding of Dr. Staley. Farlow describes the problem of the state agency physician reviewing the post-hospitalization study of decreased cardiac function. The state agency physician did not review the study two years later describing normal cardiac function.  Slip op. at 3-4. 

As a matter of expert testimony, the testimony is only valuable to the extent that the physician or other expert relies on a proper foundation. In medical malpractice cases, this is labeled the incomplete medical hypothetical. In Social Security cases, we are familiar with the standard that vocational testimony that does not assume an accurate and complete medical-vocational profile is not substantial evidence.  Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).

This is not new and the application moves straight across. The concept of expert testimony requires that admissibility focus on a reliable foundation. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert). If the Federal Rules of Evidence applied, which they do not, an expert opinion that failed to meet the reliable foundation threshold by assuming a complete foundation, the state agency physician opinion is not admissible. Because the administrative law context relaxes the rules of evidence, the opinion of the state agency physician is admissible but easily rejected because it did not assume the later normal ejection fraction shown on cardiac study. 

Farlow reaches an issue that it need not have reached -- the standard for rejecting state agency physician opinions in the old medical evidence hierarchy. Farlow should have stopped at the failure of the state agency physician to assume a complete medical hypothetical and determined that that failure satisfied any standard for rejecting uncontradicted medical opinion evidence from any source.

That observation turns to the litigation strategy. What could Farlow have done differently? The answer is medical opinion from a source, any source, that the history of cardiac disease caused limitations to the ability to function. Medium work is hard. Standing for up to eight hours per day, frequently lifting 25 pounds, occasionally lifting 50 pounds, and the frequent posturing required of medium work proves difficult for any person much less a person with a history of severe cardiac disease. The problem is Farlow is not a legal problem, it is a fact problem. 

"Change my mind."

___________________________

Suggested Citation:

Lawrence Rohlfing, Farlow v. Kijakazi -- The Clear and Convincing Standard Does Not Apply to DDS Findings, California Social Security Attorney (November 22, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009.