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, 2022) https://californiasocialsecurityattorney.blogspot.com

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

An Overview of the 2021 Ninth Circuit Published Opinions After Saul's Departure

 Claimant-appellants in the Ninth Circuit fare less well today than they did in the past. I have not kept statistical data for the last 40 years, but it seems that way. Let's take a look at the four 2021 published decisions since Kilolo Kijakazi became the Acting Commissioner.  

Brown v. Kijakazi, 11 F.4th 1008 (2021) - a straight application of Lucia and Carr where the claimant wanted to get a remand for the constitutional defect but keep the partially favorable decision for the later period. Held, the COSS could review only the period before the established onset date, not revisit the favorable portions. 

Brown allows claimants to lock the COSS out from issues. This will aid in the application of the rule of mandate in Stacy v. Colvin. 

Wade v. Kijakazi, 14 F.4th 973 (2021) - Wade won in an unpublished decision. Wade got there via a fee waiver, in forma pauperis. Wade sought her printing costs of $0.10 per page. The COSS resisted that where the litigant proceeds IFP, costs are not recoverable from the United States. Held, IFP litigants cannot recover costs from the United States.  

Put this down in the category of, "what took you so long." The COSS should have resisted IFP cost bills for decades but didn't. 

Smith v. Kijakazi, 14 F.4th 1108 (2021) - Smith argued that the ALJ did not properly consider his testimony. Held, the ALJ did properly consider the testimony. Smith argued that the ALJ did not properly consider a period of time when his signs and symptoms were worse. Held, the ALJ failed to properly consider evidence of a period of time when functioning was worse. 

Smith is a commonsense approach to different periods of time. The litigation caution is clear -- make sure the earlier or later period meets the durational requirement of the Act before making the Smith argument. 

Michener v. Kijakazi, 21 F.4th 1177 (2021) - Michener had dual citizenship. Her spouse worked in both the United States and in Canada. Michener received spousal benefits from both countries. SSA found that the Windfall Elimination Provision applied and reduced the benefit payable. Held, Canadian employment constituted earnings for noncovered service and the WEP applies.  

Retire early and retire often, but Social Security will not treat the person as having just those covered earnings. Michener is a straight expected application of the WEP. 

The Court's 2021 published opinions are a mixed bag. Brown is the biggest win of the bunch with application in circumstances outside of the Appointments Clause. Smith is a close second with application to cases where the claimant recovered or had a partial recovery. Cases with medical improvement now require address of each 12-month period separately for listings and residual functional capacity analysis.  

___________________________

Suggested Citation:

Lawrence Rohlfing, An Overview of the 2021 Ninth Circuit Published Opinions After Saul's Departure, California Social Security Attorney (March 13, 2022) https://californiasocialsecurityattorney.blogspot.com

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

Orozco v. Kijakazi -- the List for Conflict Expands

The District Court issued a decision in Jesus V.O. v. Kijakazi, 2021 WL 5500528 (C.D. Cal. Oct. 18, 2021) vacated and remanded Orozco v. Kijakazi, 2022 WL 17844618 (9th Cir. Dec. 22, 2022). V.O. declared that conflict between the vocational witness and sources other than the DOT did not impose a duty of reasonable explanation on the ALJ. Orozco clarifies the point -- the ALJ must state reasons for rejecting the evidence in conflict.

Orozco holds that when the VW admits that her source for job numbers (here, Job Browser Pro) conflicts with the testimony, the ALJ must reconcile the conflict. The VW testified that production assembler (actually solderer) represented 71,000 jobs but JBP described less than 6,000 jobs. To allow the VW to inflate the number of jobs would permit the witness to pull the number out of a hat.

The VW testified that Orozco could perform work as an electrical assembler and wafer line worker. The Occupational Requirements Survey described 26.7% of jobs in the category that includes both unskilled jobs as not having an educational requirement but all 26.7% of jobs required literacy. The balance of jobs required a high school equivalency or more education, 73.3% of the jobs in the category.

The Ninth Circuit elevated Job Browser Pro to a source that requires conflict resolution in White and in the unpublished opinion in Perkins. The Ninth Circuit relied to County Business Patterns and/or the Occupational Employment Statistics by reference in Erickson. The Ninth Circuit relied on the O*NET as a basis for finding that work was not full-time in Jaquez. Orozco adds to the list -- the ORS.

In Jaquez and Orozco, the O*NET and ORS data presented consisted of printouts from OccuCollect.com. The Commissioner will likely complain bitterly in the future that this author has an interest in OccuCollect. That is true and irrelevant. The COSS has never come forward with even a scintilla of evidence that the data presented in OccuCollect is anything other than up-to-date and accurate reflections of the DOT, SCO, O*NET, OEWS, CBP, and ORS.

Drop the mic. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Orozco v. Kijakazi -- the List for Conflict Expands, California Social Security Attorney (December 28, 2022) https://californiasocialsecurityattorney.blogspot.com

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

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. 

Judge VanDyke is Just Wrong

 A memorandum disposition from the Ninth Circuit with a dissent should be published.  Jones v. Kijakazi is one such case.  Judge VanDyke issued a dissent in Jones to express his opinion that the court should affirm.  Judges Fletcher and Bybee reversed and remanded for further proceedings, which is the order of the court. 

Before getting too deep into the weeds, we must recognize that dissent is not a mere disagreement. A dissent has the objective of persuading the other members of the panel or to persuade future judges to rule in the manner urged. A dissent is not moaning and complaining that the majority got it wrong. Circuit Rule 36-2(g) describes an opinion "accompanied by a separate concurring or dissenting expression, and such author of such separate expression requests publication." If Judge VanDyke is serious about the content of his dissent -- that the majority got it legally wrong -- and wants to discourage other cases from committing similar error, then Judge  VanDyke should have asked for publication. 

We turn to the facts of the case in Jones. The majority describes the rejection of subjective limitation testimony because the extent of limitation was not fully supported by the record and Jones had activities of daily living. Judge VanDyke echoes the ALJ decision in the first paragraph of his dissent. Judge VanDyke urges a rule of law that the "long list of daily activities and chores" is always sufficient to permit rejection of symptom and limitation testimony. But that is not where Judge VanDyke starts. He starts with the proposition that the inconsistency with the medical evidence is alone sufficient.

Judge VanDyke relies on Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Carmickle affirmed where the claimant testified to lifting 10 pounds occasionally, but a doctor testified to 10 pounds frequently. Carmickle relies on Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995). And the wheels fall off, exposing Carmickle as violating circuit law. Johnson cites the foundation of the excess pain doctrine: "once an impairment is medically established, the ALJ cannot require medical support to prove the severity of the pain. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir.1991)."

Judge VanDyke cites Chaudhry v.Astrue, 688 F.3d 661, 672–73 (9th Cir. 2012) for the proposition that the ALJ can prefer objective evidence over subjective evidence. That is not what Chaudhry holds. The treating physician found a somatization disorder but the examining physician found malingering. Chaudhry did not follow medical advice. Chaudhry does not stand for the proposition that the ALJ can prefer objective evidence over subjective evidence. 

Judge VanDyke cites Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Burch recites the same two-part test found in Johnson and nested in the en banc decision in Bunnell. "An ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain." (Cleaned up). 

Judge VanDyke cites Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). While Thomas mentions activities of daily living in reciting the facts and in the discussion of the excess pain finding, Thomas holds that the claimant's lack of candor about substance abuse "carries over to her description of physical pain." Thomas is not an ADL case.  Thomas is a truthfulness case. 

Judge VanDyke cites Osenbrock v. Apfel, 240 F.3d 1157, 1165–66 (9th Cir. 2001) for the proposition that an ALJ could reject pain testimony based on normal physical findings. Osenbrock did not get over the first criterion -- the existence of an impairment that could cause pain. We go back to Johnson for this principle, the claimant must establish the existence of an impairment. A normal physical impairment precludes the existence of an impairment that could cause pain. 

In a single paragraph, Judge VanDyke disposes of the context of Jones's activities of daily living. But context is everything. All homicides are not murder; some homicides are not crimes. Context matters. Activities of short duration terminated by symptoms do not translate to the work setting and do not suggest that the person can persist for sufficient time to perform work or work-like activities. Context matters because claimants "need not vegetate in a dark room in order to be eligible for benefits. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (cleaned up). 

We are not robbed of our commonsense and common experience. If anyone wants to see profoundly and obviously impaired individuals that meet or equal listings or that cannot sustain full-time work activity, go to the airport, the supermarket, the ball game, the movie theater, church, synagogue, temple, mosque, just go where people congregate and socialize. We have all seen people engaging in activities that ALJs point to as evidence of a capacity to engage in substantial gainful activity and seen people that obviously cannot. 

Let me be brazen and add to the list. Claimants for disability need not infantilize themselves and prostrate on the floor demanding that others around them take care of every basic human need.  Of course, people that lack a capacity for full-time work manage to attend to basic human needs of nourishment, self-care, and whatever pleasure they can eek out of their existence. SSA should not, and the courts should not permit, require that claimants for benefits act like infants unable to attend to any needs. Making a sandwich, pouring a bowl of cereal, frying an egg -- none of those things require the persistence of full-time work; none require the proximity and cooperation required of a work setting. SSA and the courts should not rob people of the dignity of life to enforce the social contract framed in the Act -- if you become unable to engage in substantial gainful activity, the federal government will provide a safety net whether earned (DIB) or as welfare (SSI). That's the bargain that frames the boundaries of public policy. We don't allow the disabled to fall from grace into want and then descend into destitution.  

And now, I must admit, I have changed my mind. Judge VanDyke should not ask that Jones become a published opinion. The dissent is not a powerful charge to course back to the law. It is a divergence from settled law framed in Bunnell that no judge or panel can modify. Judge VanDyke's dissent is just wrong. 

"Change my mind."

___________________________

Suggested Citation:

Lawrence Rohlfing, Judge VanDyke is Just Wrong, California Social Security Attorney (September 24, 2022) https://californiasocialsecurityattorney.blogspot.com

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

Court Scrutiny of EAJA Settlements -- Citing Superceded Decisions

We discussed the Court Scrutiny of EAJA Settlements with a Federal Agency in 2016. The resort to second-guessing the settlement choices of the parties has slowed but continues. The court scrutiny continues not only as to hours but also rates. Today, we examine a different aspect of the of same problem. 

The Commissioner denies a claim for Social Security disability benefits.  The claimant proceeds to federal court and prevails.  The Equal Access to Justice Act provides limited relief for having to litigate against the federal government when it has acted without substantial justification. The Supreme Court holds that a request for attorney's fees "should not result in a second major litigation."  Hensley v. Eckerhart. The Court continues to observe that: "Ideally, of course, litigants will settle the amount of a fee."  Id.  

If we assume that the Supreme Court is right, mostly because it is final, how should the courts treat stipulations and unopposed motions that "settle the amount of the fee?" Douzat v. Saul, 2020 WL 3408706 (D. Nev. Jun. 11, 2020) found that the district court had the right if not the obligation to review the hours and rates despite the presentation of a stipulation for fees settling the matter. Dissatisfied with the fee award and then potential offset against fees that he might owe later, Douzat appealed. Pursuant to joint motion, the Ninth Circuit awarded the fees in the stipulated amount. Douzat v. Saul, 2020 WL 8182913 (9th Cir. Oct. 16, 2020). The Ninth Circuit stated that the order served as the mandate. The District Court then "spread" the mandate of the Ninth Circuit on the docket of the District Court. 

Technically, the order of the District Court was not vacated.  It was superseded.  The order is not the order of the federal courts on the issue of fees awarded Douzat.  The District Court should stop citing Douzat because it is not the final order of the court.  The Court should also take note that whatever angst it has with a party getting a fee award under the EAJA, in in forma pauperis plaintiff will fill an appeal to the Ninth Circuit, the parties will file a joint motion awarding the fees sought, and the order of the District Court will become a nullity.  

Bascom v. Kijakazi, 2021 WL 5826311 (D. Nev. Dec. 8, 2021) is more shocking. The parties settled quickly without briefing. The parties stipulated to fees of $1,100. The District Court spent more time analyzing the fees than any party did in providing legal services on the merits, reducing the settled fee to $637.50. Bascom filed an appeal. On joint motion dismissing the appeal, the Ninth Circuit awarded the fees and expenses to which the parties had agreed, $1,100. Bascom v. Kijakazi, 2022 WL 945331 (9th Cir. Feb. 15, 2022). 

Brown v. Kijakazi, 2021 WL 56181753 (D. Nev. Nov. 8, 2021) is a tragedy. The District Court had before it an unopposed motion for fees in the amount of $7,500. Undaunted by the lack of opposition, the District Court reduced the hourly rate to $125 per hour and awarding $4,950 in fees. The docket does not show that Brown appealed despite initiating the action in forma pauperis. Counsel in the case did get costs of $250 which appears to represent the pro hac vice fee -- which is not a cost but might be a recoverable expense. 

When the courts reduce EAJA fees, the losers are several. First, counsel for the parties should take the extra time on the chin to file an appeal, enter mediation, and file a joint motion for fees and dismissing the appeal.  Time is money.  The attorneys for the plaintiff and the agency lose. The Ninth Circuit loses, having to docket an appeal, absorb the time of a mediator, granting a motion, and issuing a mandate.  The Court lose. The biggest loser is the claimant for benefits. The courts deprive the party of a reimbursement, offset, or credit against fees that the claimant deserves. 

Let's go back to Douzat. After the dust settled and the agency heard the case on remand, counsel went back to the District Court and sought fees. The Court awarded $32,000 in fees under section 406(b) and ordered a reimbursement of $4,500 for EAJA fees awarded by the Ninth Circuit. Douzat v. Kijakazi, 2021 WL 9316346 (D. Nev. Aug. 24, 2021). Had counsel been unwilling to "waste" the time on an appeal to the Ninth Circuit, Douzat would not have received a $4,500 reimbursement but instead the paltry $2,975 awarded by the District Court in the first instance.  

Douzat is dead and the courts should stop citing it. It is not good law, it is punitive, it wastes the scarce resources of time of not only the parties and their attorneys but also the District Court and the Ninth Circuit, and most importantly it violates the intent of the Equal Access to Justice Act. Please, Your Honor, take your foot off the neck of the plaintiff and the attorneys and please, stop treating government lawyers like they need your help.

___________________________

Suggested Citation:

Lawrence Rohlfing, Court Scrutiny of EAJA Settlements -- Citing Vacated Decisions, California Social Security Attorney (September 17, 2022) https://californiasocialsecurityattorney.blogspot.com. Updated December 28, 2022. 

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