Tuesday, July 5, 2016

Attmore v. Colvin - Medical Improvement Standard

The Ninth Circuit published its opinion in Attmore v. Colvin last week.  The court doesn't publish a lot of any kind of decision.  The case has to reinforce a proposition that the districts are getting wrong, and not just in that case, or say something new that the court has not previously addressed.  Most cases are too fact specific to warrant publication.  Which is why memoranda dispositions are not precedent for anything -- too short on the facts.

Attmore is a something new decision.  Once SSA finds the claimant disabled, the ALJ cannot cut the person off of disability without evidence of medical improvement related to the ability to perform work.  20 CFR 404.1594.  From the facts of the case and the district court decision, the ALJ reasonably found Attmore disabled.  It is also inferred from the decision that the ALJ could have reasonably found that Attmore's disability ceased.  But that isn't enough.  The actions, decisions, and determinations of SSA have to make sense in the whole, not in bifurcated analysis.

If Attmore was disabled for a discrete period of time and there is inadequate evidence of improvement, then SSA could not terminate the period of disability or entitlement to SSI.  The facts limit the reach of the holding.  Attmore had isolated pockets of doing well with other periods of not doing well.  Substantial evidence did not permit an inference of sustained capacity to engage in substantial gainful activity.  The keystone in that bridge is "sustained."

Without the prior finding of disability during the earlier period, Attmore would have had a different problem.  Attmore would have had to prove the inability to engage in work for 12 continuous months.  SSA would have argued, as it typically does, that the pockets of improvement destroy the durational requirement.  But that is a specious argument for another day and another case-focus.

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