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.
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Suggested Citation:
Lawrence Rohlfing, Monday Morning Quaterback -- Coleman v. Saul, California Social Security Attorney (April 12, 2023) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
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