Cherry-Picking -- Delicious But Not Allowed

Speck v. Kijakazi -- unpublished memorandum. The panel included Judges Rawlinson and Sung with Judge Rakoff from the SDNY sitting by designation. 

ALJ picked two records against years of treatment notes documenting pain as a cental issue, that Speck remained quite limited, pain was widely distributed, and no longer participated in her children's activities. The ALJ cherry-picked. The Court cited Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (concluding that treatment notes did not provide substantial evidence for rejecting physician’s opinion because the notes “must be read in context of the overall diagnostic picture the provider draws”) (cleaned up). 

The ALJ ignored findings supported by the neurosurgeon consult finding radiating pain; x-rays showing arthritis and overlay from back pain and possibly fibromyalgia. The ALJ did not articulate persuasiveness in the context of the supportability and consistency factors. The Court cited Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“[t]he agency must articulate how persuasive it finds all of the medical opinions from each doctor or other source, and explain how it considered the supportability and consistency factors in reaching these findings”)

The ALJ did not cite clear and convincing reasons for rejecting Speck's testimony. The Court cited Ahearn v. Saul, 988 F.3d 1111, 1116 (9th 2021). The COSS cited evidence of malingering but Speck presented evidence that her diagnoses could produce the pain. The Court used the clear and convincing evidence standard. The Court cited Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022).

Speck did not seek an award of benefits. 

A clean sweep and a very good case. Winning at the Circuit level is tough stuff. Winning with Judge Rawlinson in full agreement, very tough. My take on Judge Rawlinson is not that she is a conservative on the Court of Appeals but more that she expect the claimant's bar to do a better job at the hearings. 

Convince me that I am wrong. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Cherry-Picking -- Delicious But Not Allowed, California Social Security Attorney (July 20, 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. 

Smartt v. Kijakazi -- Not Worthy of Publication

 The Ninth Circuit decided Smartt v. Kijakazi on November 17. 2022. Smartt is a straight physician opinion and excess pain Social Security disability case. On a first quick read, I thought that there was really no reason for the publication of the decision. The legal principles stated are pedestrian, well-settled, and establishes no nuance in the understanding of evaluating physician opinion or first party subjective pain testimony.  

I let that read marinate for a week and came back to the decision. I was troubled by one phrase in the characterization of the consultative examining physician opinion: "Smartt was capable of light-exertion work involving sitting, standing, and walking for limited periods." Limited periods of sitting do not permit sedentary work. Limited periods of standing and walking do not permit the broad range of light work. Social Security Ruling 83-10. Smart clarifies what limited means:

By contrast, the consultative examiner Dr. Gordon found Smartt capable of performing a range of light-exertion work consistent with sitting, standing, and walking up to four hours in an eight-hour workday.

Sedentary work permits not more than occasional standing and walking, 2.7 hours per day. Sedentary work requires at least 5.3 hours per day in an eight-hour day. This person cannot perform sedentary work.

Light work generally requires at least six hours of standing and walking in a day. Social Security Ruling 83-10. Standing is more critical than walking. Id.

If the ALJ is going to credit Dr. Gordon, then Dr. Gordon's limitations should be in the residual functional capacity OR the ALJ must explain why the agency has rejected Dr. Gordon's opinions.

Dr. Karandish permitted part-time work with two hours of sitting and two hours of standing in a workday. The first question to ask is whether Dr. Karandish's assessment is extreme. Dr. Gordon permits four hours of sitting and standing. Dr. Karandish thinks two hours of sitting and standing is more appropriate. Those differences are not inconsistent. They represent shades of grey. Both physicians agree that Smartt cannot perform the full range of sedentary or light work as generally understood.

Both limitations are objectively reasonable. Smartt has limitations that impact sitting, standing, and walking. It is the degree of limitation that is the question before the agency and the legitimacy of that choice before the court -- did the ALJ explain the choice is a logical and reasonable manner that does not suggest an arbitrary and capricious decision-making process.

And that takes this post to the unaddressed question. The ALJ found that Smartt could perform light work without erosion. Whether that assessment means six hours of weightbearing or eight hours of weightbearing in a workday is not addressed. If we assume six hours, no medical opinion addressed in the opinion of the Court of Appeals or the District Court suggest that any doctor opined that Smartt could tolerate that much sitting or standing. The ALJ went out on a limb and gave a finding unsupported by any evidence. The Court did not address that problem. Tackett v. Apfel does not permit the ALJ to go where no doctor has gone before. It is unclear whether this issue was briefed and I suspect that it was not because neither the Court of Appeals or the District Court addressed that problem in a meaningful discussion.

Smartt goes off on the status of Dr. Karandish as not a treating physician. First, that question is irrelevant. The specific and legitimate standard applies regardless of whether Dr. Karandish is a treating physician or a consulting physician hired to assess limitations. Lester v. Chater. Second, the nurse practitioners prescribing opioids to treat pain cannot and do not work alone in any state. The NP must work under the supervision of the medical doctor (or osteopathic doctor) in every state. When the physician supervises the functions and treatment decisions of the NP, the physician is the treating doctor. Taylor v. Comm'r of Soc. Sec. Admin. Third, two visits to a physician is enough to invoke treating physician status. Ghokassian v. Shalala. 

This issue is the only reason to publish. The issue addressed is irrelevant. The issue addressed is legally wrong under two separate lines of authority. On this point, Smartt is not the law of circuit. Taylor and Ghokassian claim that status. The Court should delete the first paragraph of part III.A. That process requires a request for rehearing to address the intra-circuit conflict.

Some might read Dr. Gordon as permitting eight hours of weightbearing in a workday, four standing and four walking. I doubt that Dr. Gordon meant four of each but instead meant four hours in any combination, total. This requires an interrogatory or cross-examination of the doctor to clarify that ambiguity. That is a fact problem that must be addressed at the hearing level.

Smartt addresses the application of the treating physician rule that evaporates before our eyes. The number of cases requiring analysis under 20 CFR 404.1527 dwindles precipitously every day. Smartt probably violates the law of the circuit in the applications stated. Smartt should not have been published. Circuit Rule 36-2 describes the criteria for publication:

A written, reasoned disposition shall be designated as an OPINION if it:

(a) Establishes, alters, modifies or clarifies a rule of federal law, or
(b) Calls attention to a rule of law that appears to have been generally overlooked, or
(c) Criticizes existing law, or
(d) Involves a legal or factual issue of unique interest or substantial public importance, or
(e) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel’s disposition of the case, or
(f) Is a disposition of a case following a reversal or remand by the United States Supreme Court, or
(g) Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression requests publication of the disposition of the Court and the separate expression.

Absent facial criticism of Tackett, Taylor, and Ghokassian, Smart does not qualify under 36-2(c). It does not meet any other criterion. 

"Change my mind."

___________________________

Suggested Citation:

Lawrence Rohlfing, Smartt v. Kijakazi -- Not Worthy of Publication, California Social Security Attorney (November 26, 2022) https://californiasocialsecurityattorney.blogspot.com

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