2021 Unpublished Memorada Dispositions of the Ninth Circuit

The Ninth Circuit disposes of most claims of any type by unpublished memoranda dispositions. Those decisions are not precedent. Those decisions are not binding on any district court nor on any other panel decisions. See, Please Don't Cite This!  

We start today with the tenure of Kilolo Kijakazi looking for cases that resulted in reversal of the district court decisions affirming the Commissioner. Those favorable outcomes are the minority. 

1. Peksenak v. Kijakazi – One of the last VA cases we will likely see in the Social Security context. The ALJ reasoned that the 90% VA disability rating used a different system for adjudicating disability. This is not a persuasive, specific, valid reason for rejecting the VA rating and error. McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). The Court further rejected the USDC insertion of a new factual reason not articulated by the ALJ. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009).

2. Orcutt v. Kijakazi – The ALJ gave a one sentence boilerplate analysis of Listing 1.04A and did not cite a single finding that Orcutt did not meet at least one criterion of the listing. Mild neural foraminal narrowing satisfies the requirement for evidence of nerve root compression and the ALJ observation of the absence of "hard" evidence of radiculopathy was not supported by substantial evidence. The Court rejected post hoc rationalizations. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). The ALJ similarly erred in rejecting the treating physician.

3. Tadesse v. Kijakazi – The ALJ erred in stopping consideration of mental impairment at step 2 of the sequential evaluation process. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ failed to state clear and convincing reasons for rejecting the treating physician opinions (a PCP) and accepting the state agency opinions where the latter did not include a mental RFC assessment. The ALJ erred in rejecting the therapist notes consistent with the observations of treating sources. Consistent with the medical baseline of a severe mental impairment, the ALJ erred in rejecting Tadesse's testimony.

4. Torres v. Kijakazi – The ALJ gave five reasons for rejecting Torres's testimony. The absence of test results for inflammatory bowel disease is not valid where there is no test. Medical records stated that weight loss is not a symptom of IBS and the absence of weight loss cannot be a valid basis for rejecting symptom testimony. Treatment helping Torres to get through is not a valid basis for a finding of adequate control. The failure to seek more aggressive or frequent treatment must be considered in the context of IBS making travel out of the home difficult and the record did not show the availability of more aggressive treatment.

5. Dalka v. Kijakazi – A continuing presumption of non-disability. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ lacked a factual basis for finding that the PTSD symptoms in 2016 were the same in 2017. Chronic and stable are not inconsistent with disability. The ALJ failed to state clear and convincing reasons for rejecting Dalka's testimony about his PTSD. 

6. Schiaffino v. Kijakazi – This is an EAJA case. The Court reversed and remanded Schiaffino v. Saul, 799 F. App'x 473 (9th Cir. 2020). On remand, Schiaffino sought fees. The COSS did not oppose the application for fees. The USDC denied fees finding substantial justification. The COSS failed to sustain her burden of proof. The USDC abused its discretion in denying fees. Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008).

7. Hocevar v. Kijakazi – The ALJ properly rejected the testimonial evidence and the opinions of a treating physician. The ALJ erred in rejecting the opinion of a second doctor based on the assumption without evidence that Hocevar could manipulate the findings. The ALJ's failure to state specific and legitimate reasons was not harmless because the second doctor conducted a separate evaluation, made other findings, and imposed other limitations that the first physician did not consider.

8. Thompson v. Kijakazi – Another mixed back affirming in part and reversing in part. The ALJ erred in rejecting the treating physician opinions because generally benign did not explain failed treatment through medication. Carrying on recreational activities is not inconsistent with disability. The Court noted a prior USDC remand that found that a statement that hiking and migraines is not legally sufficient. A non-accepted medical source opinion was not inconsistent where the records documented ongoing headaches and abdominal pain.

9. David v. Kijakazi – The ALJ erred in rejecting the opinions of the pain management specialist treating David. The ALJ did not consider the nature and extent of the treating relationship, 80 visits in 7 years. The Court noted the "sea-change" in the medical and legal understanding of fibromyalgia in the past decade. The dissent by Judge Rawlinson would affirm because of the absence of objective findings – but there are not any objective findings for fibromyalgia.

In 2021, the Ninth Circuit issued 62 memoranda dispositions in Social Security cases. The Court reversed in 9 of those cases. A reversal rate approximating 15% is about average.

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Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Harry Pregerson ... An Icon of the Ninth Circuit

I read with sadness the passing last month of Judge Harry Pregerson.

I argued many cases in front of Judge Pregerson over the years, some of them published.  My most memorable argument came in Cooper v. Sullivan.  The court set the case for argument on October 6, 1988.  My bar card was still moist, two months shy of my third anniversary as a lawyer.

Cooper arose from the Central District of California.  That meant that argument would take place in Pasadena.  Central District cases get argued in Pasadena.  So on October 6, I drove to the beautiful Pasadena Courthouse of the Ninth Circuit.  The parking lot was particularly light that day.  The marshals let me in and had a peculiar look about them.  Something was wrong.

The counter always had the calendar for the different courtrooms.  There weren't any.  I opened my large briefcase and pulled out the latest volume of my paper file.  Yep, there it is in black and white -- the court set argument for October 6, 1988, at 1:30 pm ... oh no, in San Francisco.

I pulled a couple of quarters out of my pocket and used one of those old fashioned pay phones and called my office.  "Tell the court I blew it.  Tell the court I am in Pasadena."  I hurriedly drove back to Santa Fe Springs.  When I arrived, my secretary told me that court wanted me in San Francisco, tomorrow, at noon, to argue Cooper.

I got on the airplane the next morning and went to San Francisco.  Dennis Mulshine was there in the hallway.  We were told to wait until the court finished its docket for the day.  We would argue in the chief judge's chambers.  Judges Reinhardt, Noonan, and Pregerson along with a cadre of others including Dennis and me walked down the halls of the courthouse to the chief ... it changed that year from Judge Browning to Goodwin.

As we walked down the hall, I strode next to Judge Pregerson.  He started talking to me.  I didn't know what to do.  Judge Pregerson says, "you know, we were going to leave a message for you ... that today, we were in Pasadena" and then he broke out laughing.

Judge Pregerson was a great judge.  He crafted the law in important ways that will reverberate for years or decades to come.  The court is lessened by his loss.  And so is the entire legal profession.

Young v. Colvin

In an unpublished memorandum disposition, the Ninth Circuit decided Young v. Colvin on July 21, 2015.  On the last line of the mem-dis, the court writes:

And a hotel housekeeper’s occasional interaction with hotel guests does not amount to more than minimal or superficial contact with the public. See DOT 369.687-018, 1991 WL 673072; DOT 323.687-014, 1991 WL 672783. 

Really?    The DOT does not say that and to make that finding without evidence is shocking.

DOT code 369.687-018 is a folder in the laundry and garment industries.  It is not a hotel housekeeper.

DOT code 323.687-014 is the cleaner, housekeeping occupation.  According to the DOT, the worker must:

Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title. May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned as Sleeping Room Cleaner (hotel & rest.). 

Personal assistance to patrons -- minimal and superficial, where does the court fathom that concept?  Words have meaning and personal does too.  The dictionary definition:

Full Definition of PERSONAL1
:  of, relating to, or affecting a particular person :  private, individual <personal ambition><personal financial gain>2
a :  done in person without the intervention of another; also :  proceeding from a single person

b :  carried on between individuals directly <a personal interview>3
:  relating to the person or body4
:  relating to an individual or an individual's character, conduct, motives, or private affairs often in an offensive manner <a personal insult>5
a :  being rational and self-conscious <personal, responsive government is still possible — John Fischer>

b :  having the qualities of a person rather than a thing or abstraction <a personal devil>6
:  of, relating to, or constituting personal property <a personal estate>7
:  denoting grammatical person8
:  intended for private use or use by one person <a personal stereo>

Which of the definitions of personal does the court use in deeming the work of a housekeeping cleaner devoid of more than minimal and superficial?

Sometimes a memorandum disposition is a reaction to bad facts, bad lawyering, or a deep conviction that the claimant will never win.  More often, it is because the case has nothing important to add to a burgeoning load of case law.  Young isn't law of the circuit and a good thing too.  Young is wrong on that last sentence, very wrong.

The Eastern District of California - Fresno Division

The Law Offices of Lawrence D. Rohlfing has long had a presence in the Eastern Disrrict of California.  The representation of Social Security disability claimants stretches back about 20 years.  The office has never had a strong presence at the adminstrative level, just handling court cases for other attorneys and representatives whose clients have suffered a denial of benefits.  These cases get to the District Court after administrative hearings in Fresno and Bakersfield, all handled by the Fresno Office of Disability Adjudication and Review.

The problems start at the ODAR level.  For the fiscal year ending September 2011, the hearing office had an average allowance of 49.9%.  One very experienced judge pays 29.7% of the cases that he hears; another experience ALJ pays 38.1% of the cases that he hears.  Compare these numbers to the average allowance rate for every ALJ in the Social Security system of 62.4% and the problems begin to crystallize.  The Fresno ODAR is almost one standard deviation from the mean not as a rogue ALJ but as an office.  There are worse offices in the nation but Fresno ODAR is a bad place to have a Social Security disabiliity claim heard.  A claim has a 20% lower chance of getting paid in Fresno than in a hypothetical average ODAR. 

These cases that get denied end up at the Appeals Council.  The AC grants review in about 25% of the cases that it hears.  Some of the 75% that the AC denies end up in federal court.  The United States District Court for the Eastern District of California, Fresno Division, hears the cases that the Fresno ODAR and the AC deny. 

I do not have any statistics but my experience informs me that the Fresno District Court changed in the last 10 years.  It has become more apt to affirm bad decisions of the Commissioner of Social Security.  Perhaps this arises from a cultural shift, perhaps from an incredible case overload in cases of all types, or some other reason that escapes by narrow view.  The message in the past 5 years form the Fresno Division has been clear, it is not a claimant friendly forum. 

So how do we can we possiby detect a shift in the decisions of the Fresno District Court, principally by the Magistrate Judges in Fresno?  The Ninth Circuit Court of Appeals reviews the decisions of the District Court.  The Ninth Circuit "publishes" all of its opinions, those certified for publication in the official reports and deemed precedential and those that get classified as memorandum dispositions that lack the force of precedence.  The cases decided after November 10, 2009, are searchable by court of origin and parties.  The Ninth Circuit calls the Fresno Division the "Fresno District Court."  The Fresno District Court classifies Social Security cases as suing the Commissioner of Social Security with the abbreviation of either CSS or CSSA. 

In the last 2 years, the Ninth Circuit decided 11 cases coming out of the Fresno District Court.  It reversed in 6 and affirmed in 5.  One of the 5 affirmances was a pro per.  So in attorney represented cases, the Fresno District Court has found itself reversed in 60% of the cases.  The average reversal rate for any District Court group of decision is less than 20%.  The reversal rate over a two year period forms the basis for a real concern.  Not all deserving cases get appealed for legal, logistical, or business reasons.  If the Fresno District Court gets reversed 6 out of 10 times in attorney represented cases, experience teaches that there are other cases that suffered "affirmance of the Commissioner's decision" that did not get appealed to the Ninth Circuit. 

The system needs to work.  The public needs to have confidence that the system works.  The Social Security disability program already has the appearance of a lottery with benefits dependent on the identity of the decision-maker rather than the facts of the cases.  When an ODAR gets well below average in allowances in a program that is based on the presenced of jobs in the economy in a region bereft of jobs, then the District Court must provide real and meaningful review that holds the feet of the administration to the fire.  Administrative discretion cannot replace the public expectation of evenhanded administration of justice. 

Your mileage may vary. 

The Treating Physician Rule

Some Administrative Law Judges think that the courts have gone too far in imposing a treating physician rule on them in the cases that I have litigated over the last 25 years.  The treating physician rule requires that the ALJ give more weight to the opinions of the treating physician than the opinions of one-time consultative examiners and more than the opinions of non-examining physicians.The logic behind the rule is that the treating physician has a greater opportunity to know the person and has the intent to either cure the problem or relieve the patient of the ill effects of the disease or injury.  Murray v. Heckler, 722 F.2d 499, 501-502 (9th Cir. 1983).

The case law is equally clear that in order to determine whether the ALJ gave greater weight to the opinions of the treating physician, the ALJ must give specific and legitimate reasons for rejecting the opinions of the treating physician where the opinions of other physicians disagree.  Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).  The ALJ will complain that the weight afforded the treating physician and the obligation to give reasons for rejecting the opinions of the treating physician hamper his ability to make decisions according to how he views the evidence.  

That ALJ ignores the very real proposition that the Commissioner of Social Security promises claimants for disability benefits that the Social Security Administration will give controlling weight to the opinions of the treating physician where they are well-supported and "not inconsistent" with other evidence in the record.  20 C.F.R. §§404.1527(d)(2); 416.927(d)(2).  The double negative of the "not inconsistent" standard is clearly intentional to mean something that falls between "consistent" and "inconsistent."  The "not inconsistent" standard tolerates a degree of deviation to mean that some disagreement will not run afoul of the standard.  

Even the the treating physician is not entitled to controlling weight, the Commissioner promises claimants for disability benefits that the Social Security Administration will still reject the opinions of the treating physician for "good reasons."  20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). It is apparent to me that a good reason would have to be both specific and legitimate.  If the record does not contain evidence that contradicts the opinions of the treating physician, then a good reason would have to be clear and convincing.  

The Commissioner also demands that the ALJ give consideration and state the weight given to the opinions of the non-examining physicians.   20 C.F.R. §§404.1527(f); 416.927(f).  So in those two instances, the Commissioner binds the hands of the wayward ALJ to give the evidence proper consideration.  

The only real disagreement ... the Ninth Circuit does not allow the ALJ to simply disregard favorable evidence that comes form examining physicians.  There, the courts require the ALJ to give at least specific and legitimate reasons for rejecting those opinions that help the claimant.  The regulations are silent on how to treat its own hired guns.  For now, the public deserves to know that the terms of the social contract do not give the random ALJ carte blanch to deny cases for arbitrary reasons but to give good reasons, whether those reasons be specific and legitimate or clear and convincing.