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Catching up reversals by the Ninth Circuit in unpublished memoranda.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 Unpublished memoranda are not precedent. Carrier v. Kijakazi is on of those non-precedential decisions.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

https://californiasocialsecurityattorney.blogspot.com

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

 

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. 

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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.

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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.