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 written, reasoned disposition shall be designated as an OPINION if it:

(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 Tackett, Taylor, and Ghokassian, Smart does not qualify under 36-2(c). It does not meet any other criterion. 

"Change my mind."

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Suggested Citation:

Lawrence Rohlfing, Smartt v. Kijakazi -- Not Worthy of Publication, California Social Security Attorney (November 26, 2022) https://californiasocialsecurityattorney.blogspot.com

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