Cherry-Picking -- Delicious But Not Allowed

Speck v. Kijakazi -- unpublished memorandum. The panel included Judges Rawlinson and Sung with Judge Rakoff from the SDNY sitting by designation. 

ALJ picked two records against years of treatment notes documenting pain as a cental issue, that Speck remained quite limited, pain was widely distributed, and no longer participated in her children's activities. The ALJ cherry-picked. The Court cited Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (concluding that treatment notes did not provide substantial evidence for rejecting physician’s opinion because the notes “must be read in context of the overall diagnostic picture the provider draws”) (cleaned up). 

The ALJ ignored findings supported by the neurosurgeon consult finding radiating pain; x-rays showing arthritis and overlay from back pain and possibly fibromyalgia. The ALJ did not articulate persuasiveness in the context of the supportability and consistency factors. The Court cited Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“[t]he agency must articulate how persuasive it finds all of the medical opinions from each doctor or other source, and explain how it considered the supportability and consistency factors in reaching these findings”)

The ALJ did not cite clear and convincing reasons for rejecting Speck's testimony. The Court cited Ahearn v. Saul, 988 F.3d 1111, 1116 (9th 2021). The COSS cited evidence of malingering but Speck presented evidence that her diagnoses could produce the pain. The Court used the clear and convincing evidence standard. The Court cited Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022).

Speck did not seek an award of benefits. 

A clean sweep and a very good case. Winning at the Circuit level is tough stuff. Winning with Judge Rawlinson in full agreement, very tough. My take on Judge Rawlinson is not that she is a conservative on the Court of Appeals but more that she expect the claimant's bar to do a better job at the hearings. 

Convince me that I am wrong. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Cherry-Picking -- Delicious But Not Allowed, California Social Security Attorney (July 20, 2023) https://californiasocialsecurityattorney.blogspot.com

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

You Can't Make This Up -- No Seriously Judge, You Are Not Allowed to Make This Up

Leitz v. Kijakazi - unpublished

Imagine that you are getting ready for argument. A week before argument, you find out that the panel is Rawlinson, Bea, and Sung. This is the panel on Wischmann v. Kijakazi. Oh no. 

Jim Tree, no stranger to Ninth Circuit proceedings, raises five issues. The court rejects four. The fifth -- ALJ finds that Leitz “can have brief, superficial interaction with co-workers and the public; and can have occasional interaction with supervisors (although additional time for training is acceptable).”

No physician said that parenthetical statement. 

"The ALJ did not state how long Leitz could tolerate extended contact with supervisors. While the Government asserts that the ALJ intended to permit “up to a month” of training time, the sole vocational expert testified that the relevant jobs would require at least ninety days of training."

The majority reverses and awards benefits. Rawlinson dissents from the remedy. 

USDC decision adds flavor to the analysis. Any understanding of a memorandum disposition should consider the USDC decision. The brevity of a memorandum disposition counsels in favor of a deeper dive. 

___________________________


Suggested Citation:

Lawrence Rohlfing, You Can't Make This Up -- No Seriously Judge, You Are Not Allowed to Make This Up, California Social Security Attorney (July 19, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Don't Need no Stinking Lawyer -- Washington v. Kijajazi

 Washington v. Kijakazi -- published opinion on July 3, 2023. 

The case comes out of the WD Washington. The court uses a declination process for magistrate judge consent jurisdiction. Washington as a pro se claimant did not object. The district court and the court of appeal deemed the lack of an objection as consent to magistrate jurisdiction.  

On the merits, the claimant obtained a remand for further proceedings. The court affirmed the use of the credit-as-true rule:

First, we ask whether the “ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100–01 (9th Cir. 2014) (citation and internal quotation marks omitted). 

Second, we determine “whether the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be useful.” Id. at 1101 (citations and internal quotation marks omitted). 

And third, if “no outstanding issues remain and further proceedings would not be useful,” only then do we have discretion to find the “relevant testimony credible as a matter of law[.]” Id. Even if all three steps are met, “[t]he decision whether to remand a case for additional evidence or simply to award benefits is in our discretion[.]” Id. at 1101–02 (first alteration in original) (citation and internal quotation marks omitted).

The court held that because the ALJ terminated the analysis of impairment at step 2, remand is necessary. The court held that the existence of contradictory evidence justifies remand. 

Judge Fletcher would make the consent process clearer. 

Washington represented himself and did get a remand for further proceeding despite losing on the credit-as-true rule. The Federal Magistrate Judges Ass'n filed an amicus brief.  

___________________________


Suggested Citation:

Lawrence Rohlfing, Don't Need no Stinking Lawyer -- Washington v. Kijajazi, California Social Security Attorney (July 17, 2023) https://californiasocialsecurityattorney.blogspot.com

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