Monday, May 29, 2023

The Burden of Proof - Past Work as Generally Performed

The burden of proof places the obligation on the offeror of the proposition to prove the case. Villa v. Heckler, 797 F.2d 794, 798 (1986) holds that the "claimant has the burden of proving an inability to return to his former type of work and not just to his former job." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) softens the burden to hold that the "ALJ still has a duty to make the requisite findings to support his conclusion" citing SSR 82-62. In the context of Villa and Pinto, we examine the memorandum disposition in Wright v. Kijakazi, 2023 WL 3641718 (May 25, 2023) that carries a dissent by Judge Bress.

Judge Bress repeats the well-settled proposition that Wright bore the burden of proof that she could not perform her past relevant work as generally performed citing Stacy v. Colvin, 825 F.3d 563, 566-67 (9th Cir. 2016). Stacy testified on remand that acting as a supervisor represented up to 75% of his work duties. Although Stacy could not perform his past work as actually performed (heavy), he could perform just his supervisory duties. Stacy litigated the issue under the "least demanding aspects" of his job. Stacy argued that the ALJ misclassified his work as a supervisor and erred in concluding that Stacy could perform the work as generally performed.

The agency may not classify a job by its least demanding component function. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir.1985); Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008). Stacy treats the case as presented, a Valencia-Carmickle case. Stacy is not a "as generally performed" case but instead a composite job case. Agency policy is clear, a composite job has no "as generally performed" component. POMS DI 25005.020.B.

That conclusion invokes Carmickle. There, the ALJ erred in finding that Carmickle could perform past work as a supervisor with transferable skills at step four. Carmickle holds that the finding constitutes error, the TSA belongs at step five. The difference between Carmickle and Stacy is the percentage of time devoted to supervising and hands-on work. Carmickle supervised 20% of the time; Stacy supervised 70-75% of the time. The question is not the percentage of time but whether the job had composite duties from two or more DOT codes.

SSR 82-61 describes the DOT as listing jobs as they are "usually" but that some jobs within that classification may require more or less exertion than the DOT describes. The ruling then describes functional demands and job duties in excess of those generally required. What SSR 82-61 does not address and what POMS DI 25005.020.B does address is the presence of additional job duties that cross the line to job functions described in a different DOT code. A supervisor that has to engage in heavy exertion on occasion still has past work as generally performed requiring light exertion. A supervisor that must perform heavy work responsibilities and functions performed by other non-supervisory workers has a composite job.

A concrete example helps. Photocopying-machine operator (DOT 207.685-014) requires light exertion. A box of paper weighs 26 pounds according to Amazon. Once a week, the operator must move a box of paper. That represents heavy exertion but the job as generally performed requires light exertion. That person is not disabled when limited to light work under SSR 82-61. Moving the box of paper is not a separate job duty.

A company needs 3.25 full-time equivalent engineers or 3.8 full-time carpenters. That fractional need is filled by having a part-time supervisor from 20 to 75 percent of the day and a part-time engineer from 80 to 25 percent of the day. That does not represent additional demands or duties but instead a composite job.

Judge Bress cites Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir.2002). Lewis is an "as actually performed" case. Lewis's coworkers did most of the lifting. The ALJ found that the past work as actually performed required light work. That conclusion lacked the support of substantial evidence but was not completely unreasonable.

Completing the circle, we return to Wright. The ALJ found that Wright needed a sit-stand option. As actually performed, Wright did not have a sit-stand option. The vocational expert testified that at times, dealers have a chair or stool and that she had seen dealers sitting or standing. What the vocational expert did not say is that the jobs "usually" under SSR 82-61, "typically" under DICOT Appendix D, or "generally" under the regulations had the option of sitting or standing every 30 minutes.

The government argued vigorously for Judge Bress's position and that Wright had failed to carry her burden of proof. Judges Sidney Thomas and Moran Christen that the thin evidence provided by the vocational expert was insufficient to justify the finding "as generally performed." This result highlights the need for vigorous representation at the hearing at past relevant work question and the importance that having a wide range of experience o the court is essential.

Convince me otherwise.


Suggested Citation:

Lawrence Rohlfing, Lambert v. Saul - The Continuing Presumption Died or Continues?, California Social Security Attorney (April 29, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008.

Sunday, May 21, 2023

Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi

The Ninth Circuit published the decision in Wischmann v. Kijakazi, ___ F.4th ___, 2023 WL 3488107 (9th Cir. 2023) yesterday. Yet another blow to the integrity of the adjudicative system and the courts. Why? It appears to this outsider looking in that the prints from Job Browser Pro got mangled on the way from the program to the court record. What we can discern is that either the vocational expert does not know how to use Job Browser Pro or used it improperly and on purpose. The data results cited -- simply wrong.

We can use the district court decision to gather the facts missing from the court of appeals decision. James W. v. Comm'r of Soc. Sec., recites that the ALJ found that the claimant had a light residual functional capacity with occasional reaching with the right arm. The vocational expert testified that such a person could work in 59,000 bakery helper jobs; 25,000 counter clerk jobs; and 10,600 agricultural sorter jobs. The district court recited the argument:

Plaintiff contends that the new evidence shows that the VE claimed more jobs in each of the three identified occupations than could exist based on the proffered Job Browser Pro data. Specifically, Plaintiff asserts that the new evidence shows 45 jobs existing for bakery worker, 1,527 jobs existing for counter clerk, and 1,533 positions existing for agricultural sorter, which numbers, Plaintiff argues, are substantially lower than the numbers provided in the VE's hearing testimony and do not qualify as significant in the national economy

The district court went on to reject the argument because the claimant that had applied for SSI (meaning that he met the indigency requirements for a welfare benefit at the time of application) did not hire a vocational expert to read Job Browser Pro and that the ALJ could rely on bile regurgitated by the vocational expert. 

The Ninth Circuit did not focus on the substance of the presentation to the Appeals Council but to formatting. Wischmann describes the formatting of a JBP report and a mangled fourth column with "Selt:gulgy-ed" as the last column. Here is what it should look like:

The formatting for job numbers has spaces where they should not be. Wischmann recites that the JBP report for agricultural produce supporter has an additional error in the labeling of the DOT group column. What is discernible and without a doubt is that the job numbers recited in the three reports covering six pages is that job numbers contradict those of the vocational expert. 

How does the clear formatting from JBP get mangled in the record? The problem is on SSA's end converting PDF documents to TIFF and then back to PDF in the court record. Each data conversion carries distortion and mutation. What Judge Ikuta raises as a problem for Wischmann is properly laid at the feet of the Commissioner.

In the resolution of the legal issues, Wischmann relies on Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193–94 (9th Cir. 2022). There, the attorney submitted a JBP OES report rather than the DOT job number estimate report and engaged in his own analysis using an equal distribution methodology from stale data to derive job numbers. Kilpatrick lacked sufficient foundation. 

Wischmann acknowledges Buck v. Berryhill, 869 F.3d 1040, 1047, 1052 (9th Cir. 2017). Buck found that the COSS could not rely on vocational expert testimony that ostensibly relied on JBP when JBP contradicted the job numbers. Wischmann acknowledges White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022). White found that JBP reports submitted to the Appeals Council deprived the agency decision of substantial evidence for job numbers. 

Wischmann holds that the ALJ (and thus the entire agency) need not accept "uninterpreted raw data." That holding conflicts with the regulations. 20 CFR 404.1566(d), 416.966(d) states without ambiguity that the COSS will take administrative notice of reliable published governmental and private sources about the requirements and numbers of unskilled work in the national economy. Wischmann did exactly what the regulations invited -- requested the agency to take administrative notice of "uninterpreted raw data." 

The presentation of "uninterpreted raw data" is critical to the function of the agency. That type and quality of published data strips the foundation from rudderless vocational testimony. "Uninterpreted raw data" is the subject of administrative notice that the Commissioner invites in her regulations. 20 CFR 404.1566(d), 416.966(d). 

Wischmann stands in conflict with White. The Court should rehear Wischmann en banc to resolve the conflict and to adhere to the regulatory principle of administrative notice. 

Let's assume that Job Browser Pro is a permissible tool for a vocational witness to use. If the witness can base testimony on Job Browser Pro, can a claimant for benefits use Job Browser Pro to show conflict with vocational testimony not based on Job Browser Pro? What is good for the goose is good for the gander. White holds that an unexplained deviation from Job Browser Pro is not substantial evidence. 

What about the unexplained deviation from Job Browser Pro when the vocational witness uses the Occupational Employment Quarterly? The Seventh Circuit is clear that the selection of the OEQ-based testimony over the JBP-based job numbers is not substantial evidence. Chavez v. Berryhill, 895 F.3d 962, 969-70 (7th Cir. 2018). Chavez's refusal to permit reliance on the OEQ in the face of conflict with JBP data is accepted as law of the circuit in Kilpatrick

And Job Browser Pro does not produce "raw data." There are two inputs to get to the page where JBP gives national job numbers and only one of them is relevant -- the DOT code or job title. That's it. Users can select the region but that does not change the national job number. 

What users of JBP cannot select, add, delete, or modify are industry codes (NAICS). Prior to version 1.7, JBP uses could and manipulated the program to get different results. Users could stack sectors, subsectors, groups, and industries with common digits to double count NAICS codes. Users could delete other DOT codes from the industry to enhance the number in the target DOT code. That kind of manipulation of the data (cheating the program out of ignorance or malice) ended by version 1.7. 

More importantly, the industry designation(s) are critical to the estimate of job numbers. Counter clerk (photofinishing) does not exist ubiquitously in industries outside of the photofinishing industry. It exists in industries that engage in photofinishing. The 24-hour photobooths are gone. Costco does not have a photo booth anymore. The counter clerk (photofinishing) occupation is rare. To use other industries or claim counter clerks generally is a frank unexplained deviation from the DOT. The ALJ must develop the record for apparent conflict and use of other industries is an apparent conflict once cross-examination pulls back the veil. 

There are two ways to account for industry in the published data. JBP uses the occupation (SOC/OEWS codes) and industry (NAICS codes) published in the OEWS from the Bureau of Labor Statistics. JBP takes those intersections and divides the job numbers by the number of DOT codes that share that intersection. The methodology is replicable; tedious but replicable. Users do have to take JBP's DOT code assignments or explain why the user has changed those DOT code assignments. 

The other data source for occupation-industry intersections comes from BLS in the Employment Projections. The all-industry job numbers are published in the Occupational Outlook Handbook. 20 CFR 404.1566(d)(5), 416.966(d)(5). Using the employment projections to estimate job numbers is equally as valid as using the OEWS data as long as the methodology adheres to the SOC-NAICS intersections. 

This is not a full-throated acceptance of the JBP methodology. I submit that the methodology breaks down after the SOC-NAICS intersections are selected. At that point, the job numbers should be reduced based on skill level, exertional, and non-exertional differences within the SOC group as measured by the O*NET OnLine and the Occupational Requirements Survey. Generating that kind of reliable data for 13,000 DOT codes in 800+ SOC groups await the long overdue OIS. In the meantime, the claimants' bar, the agency, and the courts should stop embarrassing themselves by accepting testimony from witnesses that no serious person believes are even remotely accurate. 

Convince me otherwise. 


Suggested Citation:

Lawrence Rohlfing, Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi, California Social Security Attorney (May 21, 2023, updated May 22, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 


Thursday, May 11, 2023

The Medical Baseline and Excess Pain -- Murray v. Kijakazi

 Keeping up with the cases as they come out is critical to the practice of law. That is true not only for the attorneys engaged in court practice, but also the attorneys and representatives that handle the hearings. Claimants do not win every case nor do they win every case that they should win. Keeping up with precedent is critical. Keeping up with unpublished memoranda dispositions keep a finger on the pulse of the court and the presence of warring panels. 

Murray v. Hekcler --  Murray litigated four errors. First, the ALJ was wrong in assessing whether Murray met or equaled the listing for spine impairment by finding no evidence of nerve root compression. The record showed that Murray did have cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. But the error was harmless because Murray did not have evidence of motor loss.

Second, the ALJ articulated clear and convincing reasons for rejecting Murray's testimony. The memorandum does not tell us what the ALJ said -- it is a memorandum, after all. The memorandum cites two cases for the proposition that drug-seeking behavior and part-time work are permissive factors.

Third, the ALJ did not err in considering treating physician opinion evidenced where Murray could not cite to an opinion. 

Fourth, the ALJ need not calculate the absenteeism based on frequency of medical appointments in formulating residual functional capacity. 

Comment - the first issue should not have been raised alone but in the context of Murray's testimony (based on the very thin memorandum). Excess pain is the doctrine that the levels of pain or limitation exceed the medical expectation. The assessment of pain and limitation testimony evaluates the consistency of that testimony with the medical baseline. Here, we see that Murray has a degree of pain and limitation that exceeds what the ALJ drew as the medical baseline. But the ALJ drew the incorrect medical baseline. The ALJ did not include in the medical baseline the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. 

SSR 16-3p is the key. 

        This ruling clarifies how we consider:
  • The intensity, persistence, and functionally limiting effects of symptoms,
  • Objective medical evidence when evaluating symptoms,
  • Other evidence when evaluating symptoms,
  • The factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3),
  • The extent to which an individual's symptoms affect his or her ability to perform work-related        activities or function independently, appropriately, and effectively in an age-appropriate manner        for a child with a title XVI disability claim, and
  • Adjudication standards for evaluating symptoms in the sequential evaluation process.
Paragraph 1 addresses consideration of objective medical evidence. The court agreed that the ALJ did not consider the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. It is the most important factor -- it is the medical baseline. Either the briefing or the memorandum or both failed to include cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal the key factor in assessing Murray's testimony.

The memorandum cites Ford v. Saul for the proposition that the ALJ could consider part-time work in assessing pain and limitation testimony. That just is not what Ford says. Ford holds that the ALJ could consider occasional eight-hour shifts in assessing the treating physician opinion that Ford could not maintain regular work attendance, dealt with stress, and lacked pace -- all rated at poor. The ability to perform occasional eight-hour shifts is inconsistent with a poor ranking of ability. Ford relies on Drouin v. Sullivan for its holding. Drouin had worked part-time. Drouin found that the ALJ had stated clear and convincing reasons for rejecting allegations of severe, disabling pain because she did not lose jobs because of pain, did not have pain treatment, her impairments did not necessarily cause pain, the activities of daily living translated to work tasks, and Drouin did not exhibit pain during the hearing. Ford did not cite ongoing part-time work as a basis rejecting pain and limitation testimony. Drouin did not cite ongoing part-time work as a basis for rejecting pain and limitation testimony. 

The Act and the regulations, as well as well-founded public expectations, expect people with impairments to work as much as they can. The inability to engage in substantial gainful activity does not mean that the person cannot engage in lesser gainful activity. Impaired human beings are not relegated to vegetating in a dark room while the agency decides the disability claim. 

This dissection of hte Murray memorandum is now longer than the memorandum. Rant mode off. 


Suggested Citation:

Lawrence Rohlfing, The Medical Baseline and Excess Pain -- Murray v. Kijakazi, California Social Security Attorney (May 11, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Thursday, May 4, 2023

Lanham v. Kijakazi -- OMG

 At a hearing, the vocational witness testifies to the existence of 90,000 small product assembler II jobs and 199,915 electronics worker jobs. Complete and utter nonsense. There are not 90,000 small product assembler jobs and/or 199,915 electronics worker jobs in the nation. To accept that testimony is an embarrassment to the agency; to affirm reliance on that testimony is an embarrassment to the courts; to have that series of events undermines the public confidence in the largest adjudicative body in the world, SSA.  

We start witxh Tamara L. v. Comm'r, Soc. Sec. Admin. We get the job numbers cited by the vocational witness there. The district court relied on the VW use of the Occupational Employment Quarterly and Lanham's use of Job Browser Pro. We know from the record that the ALJ did not exhibit or address Lanham's evidence. This is not a circumstance where the ALJ decided one source was more reliable than the other. The need to articulate reasons for selecting evidence is key to the administrative process.  

We net turn to oral argument in Lanham. Counsel for Lanham disavows knowledge of how Job Browser Pro works its magic. It is simple. Job Browser Pro takes the OEWS job numbers (or the OES numbers for the 2018 data set) and selects the industries (NAICS code) appropriate for that occupation within that occupational group (SOC or OEWS code). Job Browser Pro then counts the number of DOT codes in that occupation-industry intersection and divides by the number of DOT codes. Job Browser Pro repeats that process for each occupation-industry intersection and totals them up. That is the number of jobs estimated for that DOT code.  

Counsel for the Commissioner argued that we don't know what parameters Lanham inputted into the Job Browser Pro system to extract the data. There are two problems with this argument. First, any version of Job Browser Pro 1.7.x locks users out of changing the industries because SkillTRAN wanted to stop the misuse of Job Browser Pro. When counsel for the Commissioner made this argument, he knew or should have known that he was asking the court to assume a false assumption. Second, the only parameter that could be changed in versions 1.6.x and before was the industry selection. Any change to the industry selection would appear in teh "NAICS Industries where this DOT Code is likely to be employed." In versions before 1.7, a user could manipulate other DOT codes to pro rata reduce the number reported. That "problem" is a clear accusation by OGC of fabricating evidence before the agency and furthering false evidence to the court. No disability claim is worth your integrity or your bar card.  If OGC thinks that we cheated, OGC should bring disciplinary charges. They won't because they know when the submission is accurate.  

Judge Bea wanted to know why Lanham did not question the VW at the hearing about the job number conflict. Counsel properly responded that Lanham did not get to voir dire the witness relying on Shaibi v. Berryhill. Right response and right citation. There is no F.R.Civ.P. Rule 26(2) duty to disclose expert testimony in administrative proceedings. Please, we want the paragraph (B) disclosures:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

We want that before the hearing, not at the hearing. 

Judge Rawlinson is even more hostile to the claimants' bar. But she has been for an exceedingly long time. Why can't the representative do more? Because the ALJ won't give use the rest of the day to finish the 9 a.m. hearing. We have to assume Judge Rawlinson on every case and inquire vigorously. 

Finally, the VW used the Occupational Employment Quarterly. That is, in my not-so-humble opinion, a piece of statistical trash. We have to use the decision in Kilpatrick v. Kijakazi to attack the equal distribution method of calculating job numbers and cite the host of cases from the Seventh Circuit labelling the methodology of the OEQ as preposterous.  A methodology is not a bibliography but a mathematical exercise -- it is a calculation. As of now, the courts are willing to let VW and ALJs get away with a WAG as the methodology of choice. The job numbers do indeed come out of a hat. 


Suggested Citation:

Lawrence Rohlfing, Lanham v. Kijakazi -- OMG , California Social Security Attorney (May 4, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Wednesday, May 3, 2023

Pulling a Dismissal out of the Ashes -- Ashe v. Saul

 Getting close the end of our list of published Social Security cases decided by the Ninth Circuit. Our case today is Ashe v. Saul

Ashe v. Saul, 983 F.3d 1104 (2022) -- the Appeals Council denies review but neither the claimant nor the representative receive the action in the mail. Eighteen months later, a phone call confirms that the AC did deny review. Ashe files a complaint the next day. On a motion to dismiss, the USDC finds the claim untimely filed and dismisses the case. Held, the declarations of the claimant and the representative make a reasonable showing to rebut the presumption that notice was received within five days. Distinguishing cases from the Fifth and Second Circuits, Ashe holds that the reasonable showing shifts the burden to the government to show that actual receipt was more than sixty days before the filing of the complaint, citing McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987); Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984). The facts saved the day. 

Ashe clarifies the reasonable showing standard as fact-intensive. The record at the USDC contained a declaration of the claimant, the legal secretary, and the attorney not only of the non-receipt but the practice of opening and paying attention to the mail. The last fact highlighted by the Court was the filing the next day. There is nothing like promptness to lend credibility to the allegation that "if we had known, we would have filed sooner."  The Court did not address other questions other than to hold that these unique facts were sufficient.  


Suggested Citation:

Lawrence Rohlfing, Pulling a Dismissal out of the Ashes -- Ashe v. Saul, California Social Security Attorney (May 3, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Saturday, April 29, 2023

Lambert v. Saul - The Continuing Presumption Died or Continues?

 Continuing to slug through the published Ninth Circuit cases decided in the Andrew Saul tenure, we turn to Lambert v. Saul.  

Lambert v. Saul, 980 F.3d 1266 (2020) -- SSA granted Lambert a period of disability and disability insurance benefits beginning in June 2005. SSA found that disability ended on January 1, 2015. There are two issues:

    1. The ALJ failed to identify the testimony rejected by specific reasons. Non-specific reasons do not meet the standard. The Court reversed and remanded. This holding is consistent with longstanding law of the circuit set forth in Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) and Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). That is not the reason the case was published. 

    2. Lambert addresses the continuing presumption of disability from the finding in 2005 to the cessation in 2015. The continuing presumption of disability arose in Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982). The continuing presumption was popular in the circuits. Rush v. Sec’y of Health & Human Servs., 738 F.2d 909, 914–15 (8th Cir. 1984); Dotson v. Schweiker, 719 F.2d 80, 82 (4th Cir. 1983); Kuzmin v. Schweiker, 714 F.2d 1233, 1237 (3d Cir. 1983); Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982); Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973); Hall v. Celebrezze, 314 F.2d 686, 688 (6th Cir. 1963). The Ninth Circuit affirmed the continuing presumption of disability as a feature of the administrative jurisprudence in Bellamy v. Secretary of Health & Human Services, 755 F.2d 1380 (9th Cir. 1985).

The 1984 reform act made changes to the statute. SSA prmulgated regulation in 1985. Warren v. Bowen, 804 F.2d 1120 (9th Cir. 1986) (per curiam), amended on denial of reh’g, 817 F.2d 63 (9th Cir. 1987) and W.C. v. Bowen, 807 F.2d 1502 (9th Cir. 1987) amended on denial of reh’g, 819 F.2d 237 (9th Cir. 1987) muddied the legal waters casting doubt on the continuing presumption. 

Lambert held that none of the cases decided after Patti had considered teh 1984 Reform Act or the regulations. Lambert then applied Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) to strip the law of the circuit from the continuing presumption in Patti

Patti gave rise to Lyle v. Sec'y of HHS, 700 F.2d 566, 568 (9th Cir. 1983). Lyle is the continuing presumption on non-disability:

While Patti involved a prior determination that a claimant was disabled, we believe that its logic should be extended to situations where the claimant has previously been determined not to be disabled.

SSA turned the shield of a continuing presumption of disability recognized in Patti into the sword to decapitate a later claim in Lyle. Turnabout is fair play, the claimants turned that sword into a plow in Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Prior findings plus an advancement of age category did not permit the agency to re-evaluate residual functional capacity or the ability to engage in past work to deny the claim in the older age category. SSA issued Acquiescence Rule 97-4(9) to cabin Chavez to the geographic confines of the Ninth Circuit. 

How is Chavez applied today? The Patti shield, the Lyle sword, and the Chavez plow are used to deny claimants an opportunity to get a second look at the claim for a different time period as a matter of administrative application of circuit precedent. SSA explains the de novo look at a different time period as agency policy. 

Chavez relies on Lyle which is based on an extension of Patti. Lambert overrules Patti in light of the 1984 Reform Act and the 1985 regulations. Because Patti cannot claim law of the circuit status, the underpinnings of Lyle in creating the continuing presumption of non-disability gets buried in the same grave. The death of Patti and Lyle infects Chavez and it gets thrown into the same pit. It is time to cover that grave with the top soil of Brand X deference. 

Getting rid of Lyle and Chavez would give claimants the de novo view of a subsequent time period that hte agency claims is policy. It would end the litigation over subsequent claims casting doubt on cases pending in the courts. See Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010). That would simplify the work of the court system and restore (gag) administrative discretion. 

Lambert should have broad ramifications on the administrative law jurisprudence beyond the continuing presumption of disability. That doctrine percolates in other parts of hte administrative law cases. The courts should liberally apply Lambert

Convince me that I am wrong. 


Suggested Citation:

Lawrence Rohlfing, Lambert v. Saul - The Continuing Presumption Died or Continues?, California Social Security Attorney (April 29, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Wednesday, April 12, 2023

Monday Morning Quaterback -- Coleman v. Saul

Continuing our march through the published decisions rendered during the short tenure of Andrew Saul as the Commissioner of Social Secuirty, we turn to Coleman v. Saul.  With hindsight and trusting that the record is what the Court describes and possessing experience with the medical expert at the hearing, I put on my helmet and shout out, "put me in coach."

Coleman v. Saul, 979 F.3d 751 (2020) - The course of treatment is pretty clear that Coleman engaged in drug-seeking behavior. He terminated one doctor over the prescription of pain medication and was refused medication by the emergency room after a search found that Coleman received prescriptions for 380 pain pills in 30 days and 800 pills in the preceding five months. The ALJ had sufficient reasons for rejecting treating physician and nurse practitioner opinions that Coleman met the requirements for disability. Coleman rejects the theory that the ALJ should have found a pain disorder and affirmed the finding of just plain drug-seeking behavior. 

Coleman presents a straight clear and convincing standard for rejecting symptom and limitation testimony, specific and legitimate reasons for rejecting treating physician opinions, germane reasons for rejecting nurse practitioner opinions, and refuses to reweigh the evidence of the array of severe impairments. The case does not state any legal principle not already found in the cases. It should not have been published. The case is worthy of comment on an issue appearing in the decision but not addressed by it. 

Allan Levine, M.D., also testified during the April 20, 2016 hearing. Dr. Levine had reviewed the medical record and testified that the various imaging studies and physical examinations showed no evidence of nerve root or spinal-cord compromise, findings required for an impairment to meet Listing 1.04A. He nonetheless opined that Coleman retained less than sedentary functional ability during the year following his May 2015 neck surgery, an opinion that was inconsistent with Dr. Atteberry’s January 2016 examination of Coleman. In addition, Dr. Levine opined that Coleman would be much less limited after May 2016 and could, for example, sit for six out of eight hours in a day.

The medical expert testifies that Coleman could not sustain full-time work from the alleged onset date in 2013 to one year after the neck surgery in May 2014. Again from the Court decision:

Dr. Chang diagnosed Coleman with spinal stenosis in the cervical region and recommended surgery. In May 2015, Dr. Chang performed an anterior C5-C6 discectomy. 

Dr. Levine tells the record that it takes one year to recover from a cervical discectomy. That is consistent with Dr. Levine's testimony in other cases -- I have heard him say exactly that. Dr. Atteberry puts post-surgical recovery at January 2016. The March 2016 scans confirm that Dr. Chang had resolved the underlying pathology. Coleman still meets the 12-month durational requirement. The drug-seeking behavior -- that timeline corresponds to the period just before and after the discectomy.

The legal question is whether the ALJ should have separately adjudicated the period form November 2013 to January, March, or May 2016. The Ninth Circuit held that separating out discrete periods of time is the right approach, a year later. Smith v. Kijakazi. The Ninth Circuit held that no special articulation was necessary to reject the opinions of a non-examining physician under the old regulations. Farlow v. Kijakazi

Based on Smith with a reality check from Farlow, Coleman should have asked the ALJ to grant a closed period and asked the courts to find that the ALJ did not have a reasonable basis for rejecting Dr. Levine's testimony on this record. 

Monday morning quarterback ... more like two-years later retrospective with the benefit of later-decided cases. 


Suggested Citation:

Lawrence Rohlfing, Monday Morning Quaterback -- Coleman v. Saul, California Social Security Attorney (April 12, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Tuesday, April 4, 2023

The Range of Worked Maxed Out - Maxwell v. Saul

Trudging through the opinions published under the tenure of Andrew Saul, we turn to Maxwell v. Saul

Maxwell v. Saul, 971 F. 3d 1128 (9th Cir. 2020) - this is a case of a split remedy. The Court affirmed the finding of not disabled prior to age 55. As to the period beginning at age 55, the ALJ relied on testimony of a vocational witness that Maxwell could perform two occupations with transferrable skills. For a person limited to light work over the age of 55, that person is not disabled if they possess transferable skills to a range of skilled or semi-skilled work. 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.07, n.2 referring to 202.00(c). Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006), as amended (Nov. 7, 2006) held that a single occupation was not a range of work. Held, two occupations does not satisfy a range of work.

Before getting to the merits, Maxwell held that the claimant does not have an obligation to challenge the ALJ decision before it is written. Nor does the claimant have an obligation to raise purely legal issues to the Appeals Council.

Sales representative, commercial equipment and supplies is a light occupation requiring SVP 4. Labor classifies sales representative as having MPSMS codes of 617 and 460 with work field 292.

Salesperson, burial needs is light work with an SVP of 5. Labor classifies salesperson has having MPSMS codes of 881 and 907 with work field 292.

Whatever skills Maxwell had from her past relevant work, I doubt that she accumulated the transferable skills for MPSMS codes 617, 460, 881, and 907. If the person does not have at least the first two digits of every MPSMS code and Work Field in the past relevant work, transferability of skills does not exist. We discuss the issue of TSA process description in POMS in POMS DI 25015.017 in that blog. The report and recommendation is not available and neither the order adopting or Maxwell inform us of the past work designation. TSA probably does not exist at all in this case. I was and remain ecstatic that the Court reached the right result in Maxwell but would have found the decision more complete by taking the vocational witness and the ALJ to task for violating POMS DI 25015.017.


Suggested Citation:

Lawrence Rohlfing, The Range of Worked Maxed Out - Maxwell v. Saul, California Social Security Attorney (April 4, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Thursday, March 30, 2023

WEP, Civil Service, Military Pension -- Larson v. Saul with a side of Kaufmann v. Kijakazi

The Ninth Circuit did not issue many published decisions during Andrew Saul's tenure. A year into the position, we get to the second.

Larson v. Saul, 967 F.3d 914 (9th Cir. 2020) - does the uniformed services exception to the Windfall Elimination Provision ("WEP") of 42 U.S.C. § 415(a)(7) apply to the Civil Service Retirement System ("CSRS") pensions of dual-status technicians of the National Guard? Background, military service members get a military pension and accrue credits for Social Security for the same years of service. Civil servants do not, they are subject to the WEP. Larson joined the Sixth, Tenth, and Eleventh Circuits and held that the exemption does not apply, the CSRS impacts the SS retirement benefit. Babcock v. Comm'r of Social Sec., 959 F.3d 210 (6th Cir. 2020), Kientz v. Comm'r, SSA, 954 F.3d 1277 (10th Cir. 2020), Martin v. Social Sec. Admin., Comm'r, 903 F.3d 1154 (11th Cir. 2018). The Supreme Court reviewed Babcock. Babcock v. Kijakazi, 142 S.Ct. 641 (2022) held that civil-service pension payments based on employment as a dual-status military technician are not payments based on "service as a member of a uniformed service" under 42 U.S.C. § 415(a)(7)(A)(III).

When four different panels in four different circuits go the same way, it is an uphill battle. The Eighth Circuit held that the WEP exception applied. Petersen v. Astrue, 633 F.3d 633, 637-638 (8th Cir. 2011). Justice Gorsuch in dissent would have found that the exception did apply because of the unique nature of the service by guardsmen wearing the uniform while in a civil service position. 

Rant mode on.

I take this opportunity to note a pet peeve of mine, an ongoing battle with one district court. First, the defendant, appellee, or respondent is not the Commissioner of the Social Security Administration. The named party is the Commissioner of Social Security. The statute uses Commissioner of Social Security 162 times in 42 U.S.C. § 405 and not once refers to the Commissioner of the Social Security Administration. Second, 42 U.S.C. § 405(g) describes the survival of the civil action notwithstanding any change in the person occupying the office of Commissioner of Social Security or any vacancy. As the Supreme Court does, name the person in the office in that person’s official capacity as designated in the statute.

Finally, there is not now and there will not be a Commissioner of Social Security until Congress amends the statute to make the person in that office subject to service at the discretion of the President. The unconstitutional “for cause” protection of an agency head needs to exit the statutory scheme. Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022).

Rant mode off. 


Suggested Citation:

Lawrence Rohlfing, WEP, Civil Service, Military Pension -- Larson v. Saul with a side of Kaufmann v. Kijakazi, California Social Security Attorney (March 29, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Wednesday, March 29, 2023

Don't Call Saul -- Ford v. Saul

“On June 17, 2019, Saul was officially sworn in as the Commissioner of Social Security at the agency's offices in Washington, D.C. […] On July 9, 2021, Saul was removed from his position as commissioner by President Joe Biden, after he refused a request to resign.” Wikipedia. During that period, the Ninth Circuit decided eight cases resulting in published and precedential decisions. We start with Ford v. Saul.

Ford v. Saul – The vocational expert testified to 130,000 addresser and 9,800 ink-printing jobs in the national economy. The vocational expert testified that she averaged the number of jobs reported by the Department of Labor, the Chamber of Commerce, Social Security, the Census Bureau, the International Trade Association, and adding that Alaska had good national number job numbers. The vocational expert did not have his notes to explain the averaging.

Held, the ALJ had adequate reasons for rejecting the opinions of treating physicians that Ford could work (and did work) part-time. The opinions were inconsistent with objective findings and Ford’s activities including working part-time six to eight hours per day. Finally, the opinions were not explained.

Ford requested a subpoena post-hearing to further address the vocational evidence. The ALJ denied that request. The Court—incorrectly—applied the five-day evidence rule, that Ford should have anticipated the vocational testimony and asked for the subpoena before ever hearing the testimony. The agency need not require that a vocational expert “always” produce the underlying data upon request. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court found no evidence of a lack of qualifications, untrustworthiness, or contradiction. “There is no need for an ALJ to assess [vocational testimony] reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). 

Biestek lays out the foundation issue with the conjunctive tail: “extrapolating those findings to the national economy by means of a well-accepted methodology.” Biestek, 139 S. Ct. at 1155. According to the decision in Ford, the vocational testimony did not cite to a single source—not one, not any. The testimony cited to agencies but not a source of data within that agency. Let’s take a look at them:

Department of Labor – the DOL publishes the Employment Projections that form the basis of the Occupational Outlook Handbook and O*NET, and the Occupational Employment Statistics (now the Occupational Employment and Wage Statistics). The EP and OOH update every two years, more or less. The OEWS updates every May. Which one is the witness using? We have no idea.

          The OES described word processors and typists (the occupational group for addresser) as representing 47,460 jobs in 2019 and 41,930 in 2021.

          The EP described word processors and typists (the occupational group for addresser) as representing 46,100 in 2021.

Chamber of Commerce – the Chamber of Commerce does not provide easily accessible job numbers data sorted by Standard Occupational Classification codes that would point to addresser jobs in the nation.

Social Security – does not publish job numbers.

Census Bureau – the Census Bureau publishes the Current Population Survey and County Business Patterns. The CPS counts jobs by SOC (occupational) code. The CBP counts jobs by industry (NAICS) code.

          The Census Bureau does not make Table A26 readily available to the public.

          CBP does not provide occupation specific job numbers.

International Trade Administration – is a government resource for competing in the global marketplace. 

The question that Biestek poses and Ford answers in the negative, does the witness have to provide a “well-accepted methodology” when asked on cross-examination even in the complete absence of any obligation to disgorge the actual documents relied upon?


Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Tuesday, March 28, 2023

2021 Unpublished Memorada Dispositions of the Ninth Circuit

The Ninth Circuit disposes of most claims of any type by unpublished memoranda dispositions. Those decisions are not precedent. Those decisions are not binding on any district court nor on any other panel decisions. See, Please Don't Cite This!  

We start today with the tenure of Kilolo Kijakazi looking for cases that resulted in reversal of the district court decisions affirming the Commissioner. Those favorable outcomes are the minority. 

1. Peksenak v. Kijakazi – One of the last VA cases we will likely see in the Social Security context. The ALJ reasoned that the 90% VA disability rating used a different system for adjudicating disability. This is not a persuasive, specific, valid reason for rejecting the VA rating and error. McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002)The Court further rejected the USDC insertion of a new factual reason not articulated by the ALJ. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009).

2. Orcutt v. Kijakazi The ALJ gave a one sentence boilerplate analysis of Listing 1.04A and did not cite a single finding that Orcutt did not meet at least one criterion of the listing. Mild neural foraminal narrowing satisfies the requirement for evidence of nerve root compression and the ALJ observation of the absence of "hard" evidence of radiculopathy was not supported by substantial evidence. The Court rejected post hoc rationalizations. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). The ALJ similarly erred in rejecting the treating physician.

3. Tadesse v. Kijakazi – The ALJ erred in stopping consideration of mental impairment at step 2 of the sequential evaluation process. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ failed to state clear and convincing reasons for rejecting the treating physician opinions (a PCP) and accepting the state agency opinions where the latter did not include a mental RFC assessment. The ALJ erred in rejecting the therapist notes consistent with the observations of treating sources. Consistent with the medical baseline of a severe mental impairment, the ALJ erred in rejecting Tadesse's testimony.

4. Torres v. Kijakazi – The ALJ gave five reasons for rejecting Torres's testimony. The absence of test results for inflammatory bowel disease is not valid where there is no test. Medical records stated that weight loss is not a symptom of IBS and the absence of weight loss cannot be a valid basis for rejecting symptom testimony. Treatment helping Torres to get through is not a valid basis for a finding of adequate control. The failure to seek more aggressive or frequent treatment must be considered in the context of IBS making travel out of the home difficult and the record did not show the availability of more aggressive treatment.

5. Dalka v. Kijakazi – A continuing presumption of non-disability. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ lacked a factual basis for finding that the PTSD symptoms in 2016 were the same in 2017. Chronic and stable are not inconsistent with disability. The ALJ failed to state clear and convincing reasons for rejecting Dalka's testimony about his PTSD. 

6. Schiaffino v. Kijakazi – This is an EAJA case. The Court reversed and remanded Schiaffino v. Saul, 799 F. App'x 473 (9th Cir. 2020). On remand, Schiaffino sought fees. The COSS did not oppose the application for fees. The USDC denied fees finding substantial justification. The COSS failed to sustain her burden of proof. The USDC abused its discretion in denying fees. Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008).

7. Hocevar v. Kijakazi  The ALJ properly rejected the testimonial evidence and the opinions of a treating physician. The ALJ erred in rejecting the opinion of a second doctor based on the assumption without evidence that Hocevar could manipulate the findings. The ALJ's failure to state specific and legitimate reasons was not harmless because the second doctor conducted a separate evaluation, made other findings, and imposed other limitations that the first physician did not consider.

8. Thompson v. Kijakazi  Another mixed back affirming in part and reversing in part. The ALJ erred in rejecting the treating physician opinions because generally benign did not explain failed treatment through medication. Carrying on recreational activities is not inconsistent with disability. The Court noted a prior USDC remand that found that a statement that hiking and migraines is not legally sufficient. A non-accepted medical source opinion was not inconsistent where the records documented ongoing headaches and abdominal pain.

9. David v. Kijakazi  The ALJ erred in rejecting the opinions of the pain management specialist treating David. The ALJ did not consider the nature and extent of the treating relationship, 80 visits in 7 years. The Court noted the "sea-change" in the medical and legal understanding of fibromyalgia in the past decade. The dissent by Judge Rawlinson would affirm because of the absence of objective findings – but there are not any objective findings for fibromyalgia.

In 2021, the Ninth Circuit issued 62 memoranda dispositions in Social Security cases. The Court reversed in 9 of those cases. A reversal rate approximating 15% is about average.


Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008. 

Wednesday, March 15, 2023

An Overview of the 2022 Ninth Circuit Published Opinions

 We continue our examination of the Ninth Circuit published opinions in Social Security cases by looking at 2022. 

Woods v. Kijakazi, 32 F.4th 785 (2022) - does the treating physician rule survive the 2017 regulatory changes? The short answer is, "no." There is no extra weight assigned to the opinions of treating physicians or examining physicians either contradicted or uncontradicted by a lower tier of physician opinion evidence. All opinion evidence is examined for consistency and supportability. 

Stated differently, can the agency tell the courts what is an is not substantial evidence? That was never really the issue. The COSS accused the courts and the Ninth Circuit in particular of re-weighting evidence. That was never the standard. 

What was the standard is the need for articulation of why the agency had rejected probative evidence. Failure to articulate specific and legitimate or clear and convincing reasons constituted legal error. Part B.3 of the decision affirms that "an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence." 32 F.4th at 792. While the "specific and legitimate" standard is dead, it is clear that the articulation must be factually supported and legally cognizable, i.e., factually specific and legally legitimate. The standard is dead but the need for articulation survives. 

Kaufmann v. Kijakazi, 32 F.4th 843 (2022) - a straight application of Seila Law, the unconstitutional structure of the COSS dischargeable only for cause and the ALJ insulation from review (dischargeable only for cause) does not result in an automatic presumption harm. Why is this constitutional violation not similar to the problem in Lucia and Carr? Probably because the courts have said so.  

Kaufmann has a civil procedure cross-over, application of rule 59. There is no motion for reconsideration in federal court. But the district court has discretion to correct "clear error."  

Miskey v. Kijakazi, 33 F.4th 565 (2022) - Miskey received a Social Security benefits and a public employees retirement benefit from the State of Nevada. Miskey also received a spousal benefit from a deceased spouse. The agency determined that the government pension offset did apply, then that it did not apply, and finally that it did apply. Held, the GPO does apply because the covered employment and the PERS employment were different entities. 

Miskey contended that the agency should have waived the overpayment because he was not at fault. Held, the evidence of fault was not supported and remanded.   

Allen v. Kijakazi, 35 F.4th 752 (2022) - Allen is held civilly as a sexually violent predator under state law. Can Social Security suspend benefits during a period of a person confined under the SVPA? Section 402(s)(1)(A)(iii) of the Act? Held, there are no procedural requirements to suspend benefits so long as the state statute is constitutional. 

Kilpatrick v. Kijakazi, 35 F.4th 1187 (2022) - Kilpatrick submitted evidence that the vocational expert's estimation of job numbers was not reliable. The evidence at issue consisted of old Job Browser Pro data sheets before the estimate of DOT job numbers using an equal distribution methodology ("straight-line method") using data seven years out-of-date. Held, the evidence presented was not probative and warranted no response. 

Not keeping up-to-date on software is inexcusable. Using equal distribution as a methodology for second-guessing vocational testimony is not reliable. But the estimates of part-time versus full-time work should have been considered probative. Kilpatrick suffered from a lack of clarity in the law that generated a faulty evidentiary submission. 

White v. Kijakazi, 44 F.4th 828 (2022) - if the claimant submits rebuttal evidence in the form of Job Browser Pro to the Appeals Council, is a remand necessary to allow the ALJ to address the evidence and to resolve the inconsistency? Held, a remand is appropriate to allow the ALJ to resolve the inconsistency between the vocational testimony and the data provided by Job Browser Pro. 

A number of district courts had held that the ALJ had no duty to address rebuttal evidence not in the DOT and had held that Appeals Council evidence was too late. See, Ford v. Saul. 

Cody v. Kijakazi, 48 F.4th 956 (2022) - an extension of the Lucia and Carr appointments clause to the remand to an ALJ that acted unconstitutionally in issuing the first decision and then hears the case on remand after being constitutionally appointed. Held, the claimant is entitled to a new ALJ even if the claimant did not raise the issue in the first set of court proceedings. 

Cody is a logical and necessary extension of Lucia.  

Farlow v. Kijakazi, 53 F.4th 485 (2022) - if the agency has uncontradicted opinion evidence in a claim filed before March 2017, does the ALJ have to state clear and convincing reasons for rejecting that opinion from a non-examining source? Held, the clear and convincing standard does not apply to non-examining medical opinion evidence.

Part II.A of the decision sets out the issue: "Farlow argues that because Dr. Staley's opinion was the only functional assessment in the record, it could not be rejected by the ALJ without a "clear and convincing" reason." The issue is not whether the ALJ had reasons for rejecting the opinion evidence. Rather, the issue should have been "what evidence supports the ALJ's RFC assessment?" The answer to that question is, "none." The ALJ rejected the only opinion evidence in the record and then gave a lay assessment of RFC. The decision lacked the support of substantial evidence for the RFC assessed. 

Smartt v. Kijakazi, 53 F.4th 489 (2022) - the ALJ rejected the opinions of the of a consulting physician as "extreme" in this pre-March 2017 application. Held, that the ALJ could reject extreme limita6tions described by the consulting physician. 

Why is this case published? This is probably the last pre-March 2017 case that we will ever see. The precedential value of the decision is nil under the consistency and supportability standards. The case did not warrant publication under the Circuit Rules. 

I don't know what "extreme" means in the context described. It apparently means that the physician described the person differently than did the state agency non-examining sources. That isn't extreme, it is different under Orn v. Astrue. The COSS explains in the new regulatory paradigm that sources can have differences of opinion and still both have consistency and supportability. This decision invites and encourages boilerplate decision making -- inserting the word "extreme" as descriptive of evidence that the ALJ wants to reject. 

Eight published decisions in a single year on a narrow part of the administrative law landscape. Kilpatrick and White balance out. Farlow can be distinguished with a different argument. And Smartt is worthless in this context.  

Change my mind on any and all cases.


Suggested Citation:

Lawrence Rohlfing, An Overview of the 2022 Ninth Circuit Published Opinions, California Social Security Attorney (March 15, 2023)

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008.