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Speck v. Kijakazi -- unpublished memorandum.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. 

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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.