Thursday, August 20, 2015

Phillips v. Colvin/Commissioner

The Ninth Circuit decided Phillips v. Commissioner on August 18, 2015.  I only occasionally write about unpublished opinions but this was my case and I have unique insight into what happened at the District Court level and before the Ninth Circuit.

The court found that Social Security Ruling 13-2p applied the case despite the fact that the Commissioner published the ruling after the ALJ issued the final decision in this case.  The lawyers for the Commissioner conceded at oral argument that the ruling did not represent a change in the law.

SSR 13-2p overrules Parra v. Astrue.   The claimant for benefits need not prove that absence will leave the drug addict or alcoholic still disabled.  The claimant for benefits just needs to prove that it is unclear whether abstinence will lead to recovery or leave the person in a disabled state.

In Phillips v. Astrue, the Commissioner argued that addiction to prescription medication was no different than addiction to street drugs or alcohol.  The District Court in the Eastern District of Fresno bought that argument.  Twice the District Court stated that Phillips was mistaken about the law, because the Commissioner did not concede what she conceded at the Ninth Circuit Court of Appeals, that addiction to prescription medication is fundamentally different than addiction to non-prescribed street drugs or alcohol.

Taking the representations at oral argument before the Ninth Circuit at face value, the representations made before the District Court had no legal support.  The position taken that SSR 13-2p did not change the law makes the argument at the District Court disingenuous.  The government cannot have it both ways.

But that is the role of the government lawyers in federal court defending Administrative Law Judge decisions denying benefits.  The government lawyers do not defend agency policy, the regulations, the rulings, HALLEX, or POMS.   Instead, the government lawyers defend the discretion of the ALJ to do whatever the ALJ wants to do with a particular set of facts.  The agency defense discretion over everything.  Only when the ALJ makes egregious omissions from a decision will the agency seek remand.  But misconstrue the facts and the law, Phillips v. Astrue and the litigation before the Ninth Circuit tells us that the agency defends that.

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