2021 Unpublished Memorada Dispositions of the Ninth Circuit

The Ninth Circuit disposes of most claims of any type by unpublished memoranda dispositions.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) https://californiasocialsecurityattorney.blogspot.com

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