Saturday, November 26, 2022

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) 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 TackettTaylor, 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)

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

Tuesday, November 22, 2022

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)

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