Stiffler v. O'Malley -- Not a Good Decision

The Ninth Circuit published Stiffler v. O'Malley, 102 F.4th 1102 (9th Cir. 2024) on May 28, 2024. The Court disposed on the second issue first, the persuasive value assigned to the treating physician. The Court found that there is no conflict between "few workplace changes" and the "few variables" described in DOT reasoning level 2. 

1. Dr. Khosh-Chashm

Dr. Khosh-Chashm opined that Stiffler had marked differences from peers in social and communication behaviors, struggled to interpret social cues, and had limited decision-making abilities. Dr. Khosh-Chashm opined that Stiffler lacked the skills necessary to maintain gainful employment. Dr. Khosh-Chashm completed medical source statement opining that Stiffler had extreme difficulty with respect to her ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage herself.

The Court found that Dr. Khosh-Chashm did not explain his findings. The Court also found that those opinions were inconsistent with those of the Dr. Goldberg and Dr. Bilik. 

That begs the question posed by section 416.920c(c) -- compared to what? The regulation and the federal register address equally supported and consistent opinions. Every physician opinion argument must contain a comparison. If the ALJ finds that the favorable opinion is not supported (explained), the question is whether the explanation compares to the opinions expressed by less favorable opinions/findings. If the ALJ finds that the favorable opinion is inconsistent with other findings, then the ALJ must conclude that the accepted findings are inconsistent with the rejected findings. If that were not true, then there could never exist a circumstance where two opinions could be equally supported and consistent requiring the resort to the "relationship factors." 

2. Few Workplace Changes

The Court engages in the judicially discovered concept that "workplace" refers to the physical place of work and not procedural changes "in" the workplace. The Court does not tell the world that the ALJ defined workplace changes as the physical environment. A reasonable person would conclude that the Court made it up. 

The Court compares "few workplace changes" to the definition of reasoning level 2 in the DOT. Reasoning level 2 requires the ability to deal with few variables. Reasoning level 1 requires the ability to deal with occasional or no variables. One level of reasoning deals with the set and one level of reasoning deals with the frequency. The Court evaded the real question comparing the RFC to both definitions.

This matter is now pending a petition for rehearing or rehearing en banc on issue number 2. 

Distressing and disappointed. 

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Suggested Citation:

Lawrence Rohlfing, Stiffler v. O'Malley -- Not a Good Decision, California Social Security Attorney (June 29, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

 

Short and Simple is Different than Simple, Routine -- Leach v. Kijakazi

 The Ninth Circuit published Leach v. Kijakazi on June 15, 2023. Google Scholar has the preliminary version. The opinion starts with the complete hypothetical and accurate hypothetical problems. A residual functional capacity that does not match the hypothetical question to the vocational witness results in a finding that the testimony is not substantial evidence if the difference is material. If the residual functional capacity and the hypothetical question match, the ALJ may generally rely on the testimony with the exception of DOT conflict. 

Leach finds that omission of little or no judgment is immaterial to the disability conclusion. To reach this conclusion, Leach relies on 20 CFR 404.1568(a). The first sentence of the subsection states that unskilled work needs little or no judgment to do simple duties in a short period of time. Short period of time is the qualifier that Leach missed. Short period refers to occupations with SVP 1. The DOT defines SVP 1 as requiring a short demonstration only. The DOT defines SVP 2 as anything beyond a short demonstration up to and including one month. The regulation describes work that takes up to 30 days as requiring little specific vocational preparation and judgment. Little judgment exceeds half of the limitation found -- no judgment. Only SVP 1 is defined as requiring little or no judgment based on the regulation and DOT. 

Leach finds that short and simple instructions have an apparent conflict with reasoning level 2. Occupations requiring reasoning level 2 may require more than short instructions. Leach cites two cases from the Fourth Circuit but does not adopt that strict standard. This issue supported reversal and remand. 

Leach finds that work in a predicable work environment with few changes does not support a residual functional capacity for occasional changes. Leach cites the dictionary to juxtapose the difference between few and occasional changes, that occasional may very well exceed few. 

Each of the limitations identified warrants a limitation to a narrow range of reasoning level 1 work existing with an SVP 1. Leach reverses on the second and third issue. That gives a strong basis for the argument in future cases. It will be up to future cases to draw out the distinction about jobs that require more than a short demonstration. This finds support in the severe impairment regulation. 20 CFR 404.1522(b)(4) (the basic work functions necessary to do most jobs includes use of judgment). That is a future refine for a future case if that is the only issue presented. 

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Suggested Citation:

Lawrence Rohlfing, Short and Simple  is Different than Simple, Routine -- Leach v. Kijakazi, California Social Security Attorney (April 29, 2023) https://californiasocialsecurityattorney.blogspot.com

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