Notes on McLean v. Colvin — and EAJA Case

In an unpublished opinion, the Ninth Circuit decided McLean v. Colvin, reversing the District Court's denial of fees and expenses under the Equal Access to Justice Act.  The case is important because it reinforces in a persuasive manner the proposition that an ALJ decision that lacks the support of substantial evidence or violates the law, the cases, or the rulings will lack safe refuge under the cloak of reasonableness.  Congress passed and Pres. Reagan signed the EAJA to offset the expense and burden of proceeding to court against the United States.  And unduly strict reading of the substantial justification doctrine defeats the purpose and intent of the act to reimburse partially that expense.

One word of caution is in order.  The court cites to Social Security Ruling 96-7p.  the Commissioner superseded that ruling with Social Security Ruling 16-3p on March 28, 2016.  Look for synthesis and comparison of the two rulings on this blog in the near future.


The Legal Kernels Derived from McLean

The court has jurisdiction pursuant to 28 USC § 1291.

The court reviews the decision of the district court for an abuse of discretion.  Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). 

The ALJs mischaracterization of, and failure to weigh properly, the record evidence cannot be said to be justified to a degree that would satisfy a reasonable person.  Meier v.  Colvin, 727 F.3d 867, 870, 872 (9th Cir. 2013); cf. Sampson v.  Colvin, 103 F.3d 918, 921–22 (9th Cir. 1996).

The ALJ violated the Commissioner’s own regulations by failing to discuss side effects of medication and failing to explicitly state whether the side effects had adequately supported the temporary discontinuation of other medication.  Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001); Social Security Ruling 96-7p; 20 C.F.R. §§ 404.1529(c)(3)(iv); 416.929(c)(3)(iv). 

The ALJ’s failure to credit the testimony was not harmless because it affected the ultimate determination on the issue of medical improvement.  Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).  

Notes on Finnegan-Crews v. Colvin

The Ninth Circuit made a number of pedestrian observations in the unpublished opinion of Finnegan-Crews v. Colvin.  These unpublished opinions give insight into how we can expect the court to handle similar questions in other cases.  Unpublished opinions are never precedent and may have dubious persuasive value.  Attorneys should always use caution in resorting to unpublished opinions.

The most troubling part about the court's decision is the reference to ALJ issue waiver.  It is easy to read the language contained in the decision for the proposition that this person who proceeded at least in the Ninth Circuit without the benefit of an attorney waived an issue.  The courts generally give people proceeding without benefit of counsel a break in terms of the rules.

Government counsel will likely read this decision as permitting the agency to argue that the claimant for benefit that fails to raise an issue before an ALJ may not raise it in court.  That really isn't the point of this decision nor the authority relied upon by the Ninth Circuit (Greger).  Finnegan-Crews didn't raise the hip injury issue either before the ALJ or the District Court.  Properly read and parsed, raising the issue of the disabling hip injury before either the ALJ or the District Court may have saved Finnegan-Crews from the waiver doctrine.

The Legal Kernels Derived from Finnegan-Crews

The court has jurisdiction pursuant to 28 USC § 1291.

The court reviews the District Court’s decision to novo.  Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014).

Finnegan-Crews waived her contention regarding a disabling hip injury by failing to raise it before the administrative law judge (“ALJ”) or the district court.  See Greger v.  Barnhart, 464 F.3d 968, 973–74 (9th Cir. 2006). 

The ALJ may reject the opinions of the treating physician for specific and legitimate reasons, supported by substantial evidence.  Ghanim v. Colvin, 763 F.3d 1154, 1160–61 (9th Cir. 2014); Batson v. Comm’r of Soc.Sec. Admin.,  359 F.3d 1190, 1195 (9th Cir. 2004). 

The ALJ must use a two-step analysis to provide specific, clear, and convincing reasons to reject testimony and to find other statements not fully credible.  Rounds v. Comm’r of Soc. Sec.Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (ordinary tests of credibility and observations permitted); Treichler v.Comm’r of Soc. Sec. Admin.,  775 F.3d 1090, 1102–03 (9th Cir. 2014) (the ALJ must specifically identify the testimony he finds not credible and explain what testimony undermines that testimony); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (rejecting testimony where the medical evidence showed the anxiety disorder well-controlled with medication and other self-combing measures).