Wednesday, February 17, 2021

Do the 2017 Regulations Relieve the ALJ of Explaining the Rejection of Opinion Evidence?

The question of whether the new regulations relieve the ALJ of the burden of articulating specific and legitimate reasons to rejected a contradicted opinion or clear and convincing reasons for rejecting an uncontradicted opinion rests on the question of whether the Ninth Circuit would abandon its precedent and yield to the regulations.  See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983).  Murray imposed the “treating physician rule” in the absence of a regulation.  The Commissioner cannot relieve himself of the burden of articulating why he has rejected probative evidence.  Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).  That standard applies to all forms of probative evidence.  Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (ALJ acted without substantial justification in rejecting a report of vocational testing showing education level).   

The courts review the reasons that ALJs articulate for rejecting probative evidence.  Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts.”)  The need for reasons exists at the individual case decision level and on the macro level of articulating policy.  Dept. of Homeland Security v. Regents of the Univ. of Cal., 140 S.Ct. 1891, 1908 (2020) (the Court does not rely on post hoc rationalizations for the defense of the administrative decision).  Every administrative agency must explain the connection between the evidence and the conclusion.  Dept. of Commerce v. New York, 139 S.Ct. 2551, 2569 (2019).  The Commissioner cannot by regulatory fiat discharge the broad administrative law obligations for an ALJ to explain the decision made.  Arbitrators are not required to give reasons by law.  Juries are not required to explain their decision absent special verdicts.  But judges at all levels must explain their decisions to permit review of not only the decision made but the reasons for that decision.  The need for reasons persists despite the regulatory changes that the Commissioner characterizes as lifting that burden off the ALJ.  

Administrative law jurisprudence requires that the agency explain itself.  That duty exists in the absence of a regulation requiring articulation.  The question of whether a regulation could erase the burden of articulation turns back to the point of deference.  The courts decide what constitutes substantial evidence on review.  That an ALJ does not have a burden of articulation for agency purposes does not mean that the courts cannot or should not require a full-throated explanation of why the evidence was given less weight or rejected.  From this perspective, SSA attempts to diminish the articulation standards for rejecting evidence should fail.  


Suggested Citation:

Lawrence Rohlfing, Do the 2017 Regulations Relieve the ALJ of Explaining the Rejection of Opinion Evidence?, California Social Security Attorney (February 17, 2021)

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