Sunday, May 23, 2021

Logical and Rational Articulations under the 404.1520c and 416.920c are Still Necessary

 I work through problems.  Some ALJs and courts seem to think that not only did the Commissioner remove the treating physician rule but also stripped out the need to articulate why the ALJ rejected probative evidence.  This is an analysis that starts with Supreme Court authority and uses Ninth Circuit precedent to flesh out the contours.  Out of the Ninth Circuit, attorneys should use other appropriate cases.  These are fact sensitive cases.  A long and healthy discussion of the facts is critical, fill in the blanks!  Enjoy.  


As a matter of administrative law, the agency must explain the decision from the facts found to the choices made.  Motor Vehicle Manufacturers Ass'n of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 52 (1983).  The “scope of review is ‘narrow’: [the court must] determine only whether the Secretary examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for his decision, ‘including a rational connection between the facts found and the choice made.’”  Dept. of Commerce v. New York, 139 S.Ct. 2551, 2569 (2019) (citing Motor Vehicle Manufacturers Ass’n).  The law of the circuit has long required that the ALJ explain why she rejected probative medical evidence.  Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984).   The hierarchy established in Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983) and exemplified in Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995) placed a framework that the Commissioner adopted in the interim.  The rejection of the hierarchy in the current and applicable regulations does not relieve the ALJ of the duty to explain the decision.  Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts.”).  Administrative agencies must always explain their decisions. 

The question here is why the ALJ rejected the limitation to [ … ].  Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015).  The ALJ did not give a logical or rational reason for rejecting [ … ] evidence.  The ALJ’s statements explaining the decision must rest on a logical foundation and be rational.  Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (“Not only must an agency's decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.”). 

The record discloses [ what the evidence source says, what the evidence shows ].  The record discloses what the ALJ found [ describe ].  What the record does not disclose is why the ALJ rejected the probative evidence provided by [ name the source]. 

The ALJ did not find a limitation to [ … ] unsupported or inconsistent with the record.  The [medically determinable impairment] alone justifies a limitation to/from [what the source said]. [cite].  [analysis].  [conclusion].  The ALJ did not provide a decision that permits meaningful review of the reasons for rejecting that opinion evidence under Connett, Brown-Hunter, and Vincent.  The ALJ considered the evidence and decided.  But that is not enough.  Hu v. Holder, 652 F.3d 1011, 1020 (9th Cir. 2011) (remanding where a meaningful review of the agency’s decision could not be conducted because the agency failed to provide a reasoned explanation of its decision).  


Suggested Citation:

Lawrence Rohlfing, Logical and Rational Articulations under the 404.1520c and 416.920c are Still Necessary, California Social Security Attorney (May 23, 2021)

Thursday, May 20, 2021

I Would Argue ... Please Don't

Another writing anomaly that is odd and warrants deletion.  I have read, "plaintiff would argue" and the brief goes on to set forth a position.  Would has 12 definitions in Merriam Webster.  

past tense of WILL

1—used in auxiliary function to express plan or intention said // we would come 

Will invokes a future plan.  While mandatory, it has not happened.  
2: SHOULD //knew I would enjoy the trip // would be glad to know the answer
Use of would to mean should reminds me of a story my father tells.  He stayed with a friend for a brief period.  The friend owned a pit bull that looked intimidating.  The dog slept in the laundry room.  My father asked his friend if he was going to be alright going to the laundry room when no one else was home.  His friend responded, "you should be OK."  Not very refreshing.  
3—used in auxiliary function to express consent or choice // would put it off if he could

4—used in auxiliary function to express probability or presumption in past or present time // would have won if I had not tripped 

These definitions of would denote a conditionality to the expression.  I would if I could, but I really can't.  
5—used in auxiliary function to express a request with which voluntary compliance is expected // would you please help us

We don't need someone's permission to make an argument, space or time permitting.  The patent fact that the writer goes on to state an argument eliminates use of would to carry this definition.  

 6—used in auxiliary function with rather or sooner to express preference // he would sooner die than face them

We don't prefer to make an argument, we make the argument.  Wrong definition.  

 7a—used in auxiliary function in the conclusion of a conditional sentence to express a contingency or possibility // if he were coming, he would be here now

b—used in auxiliary function in a noun clause (such as one completing a statement of desire, request, or advice)we // wish that he would go

Another range of possibility.  But the brief is the star of the next Nike commercial for lawyers, "just do it."   

8—used in auxiliary function to express custom or habitual action // we would meet often for lunch

 Now that's helpful in introducing boilerplate.  My clients would often make this argument.  Perhaps we should not wave a flag to highlight the introduction of boilerplate -- which the judges hate.  

9: COULD // the barrel would hold 20 gallons

The argument could hold water.  Not what we mean in the context of a brief.   

10—used in auxiliary function to express doubt or uncertainty // the explanation … would seem satisfactory

Another nuance of would that leaves the reader wanting for something more.  The brief should never leave doubt or uncertainty, not if our clients want to win.  Establishing doubt or uncertainty is fine in a criminal courtroom and we represent the defendant.  But we represent the claimant that has the burden of proof or at least the burden of persuasion at step five.    

11a—used in auxiliary function to express wish, desire, or intent // those who would forbid gambling
b—used in auxiliary function to express willingness or preference // as ye would that men should do to you— Luke 6:31 (King James Version)

Again, there is no wish or desire to make an argument.  We just make the argument.  

12a: strongly desire : WISH I would I were young again—often used without a subject and with that in a past or conditional construction // would that I had heeded your advice
b archaic : WISHED, DESIRED
c archaic : wish for : WANT 

Pick your definition and own the definition that you pick, or don't use the word.  Garner, and others, recommend that you not cite an authority without looking it up.  Using words that sound awkward in the context warrant the same respect, look them up.  In addition to presenting a phrase that really does not mean what the writer meant, the introductory clause represents worthless words that add to the count and add nothing to the substance.  Delete words and phrases that detract from the power of the presentation because those words are either inappropriate or unnecessary.  I would end here ... and I do end here.


Suggested Citation:

Lawrence Rohlfing, I Would Argue ... Please Don't, California Social Security Attorney (May 20, 2021)


Sunday, May 16, 2021

Plaintiff Argues That ... A Phrase Worth Deletion

I read briefs written by other lawyers, both in the office and from lawyers outside of the firm.  Every once in a while, I read that line, [plaintiff] argues, contends, or asserts that [the ALJ erred].  We already covered using our client's name in briefs.  The question is why would we write, "[plaintiff] argues that ..."  

The short answer is that we should not.  Of course the plaintiff argues and contends that the ALJ erred.  We titled the issue header with the words that direct the proposition that that the ALJ erred.  Of course that is the contention.  Instead of:

    Plaintiff contends that the ALJ erred in consideration of the symptom and pain limitation testimony.


    The ALJ erred in consideration of the symptom and pain limitation testimony.

First, the absence of the contends language leaves out the understood position that the argument presented represents the plaintiff's contentions.  Second, leaving out three words makes the sentence shorter.  Don't leave needless words in the brief.  As needless words, they are unnecessary and a distraction.  

The most common place that I see this awkward writing convention is at the beginning of the argument.  Social Security disability cases in federal court are driven by the facts.  Two cases with the nearly identical legal issue can have divergent results based solely on the strength of the facts undergirding the issue.  But writers want to tell the court where the issue is going, so we start with the conclusion.  The short answer is, don't.  

The better format  consists of introducing the issue, not surprisingly, with the facts.  

The ALJ found that plaintiff could stand/walk for the entire workday.  [CITATION].  Plaintiff testified to a limited an ability  to walk three blocks or a half mile.  [CITATION].  The consultative examiner opined that plaintiff could stand/walk six hours in a workday.  [CITATION].   The state agency reviewing physician completing the residual functional capacity assessment required by statute and regulation found that plaintiff could stand/walk for about six hours in an eight-hour workday.  [CITATION].  No evidence supports the complete absence of a stand/walk limitation within plaintiff's residual functional capacity.  The ALJ erred in failing to include a stand/walk limitation without explaining the nexus between the evidence and the conclusion.  

There are no contentions.  The paragraph states facts/evidence and conclusions driven by the record.  It is not necessary to write that our client contends anything.  Remember the adage about writing:

The earliest recorded use of the quote "If I Had More Time, I Would Have Written a Shorter Letter" comes from French mathematician and philosopher Blaise Pascal's work "Lettres Provinciales" in 1657. Written in French the quote says, "Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte." This translates to "I have made this longer than usual because I have not had time to make it shorter."

Or other versions of the same idea.   


Suggested Citation:

Lawrence Rohlfing, Plaintiff Argues That ... A Phrase Worth Deletion, California Social Security Attorney (May 16, 2021)