Marsh v. Colvin, No. 12-17014, 2015 DJDAR 6863 (9th Cir. June 18, 2015)
In this Social Security disability case, the claimant, who suffered from a variety of physical impairments, sought judicial review of the denial of her claim. She primarily contended that the Administrative Law Judge committed reversible error in failing to even mention the notes from one of her treating physicians finding that she “appears to be disabled” and is “pretty much non-functional.” The district court acknowledged that the ALJ erred in not even mentioning the notes, let alone not presenting, as required by Circuit precedent, “specific and legitimate reasons supported by substantial evidence” for disregarding the treating physician’s opinion. Strangely, however, the district court applied a “harmless error” analysis and concluded that the ALJ’s error was indeed harmless.
On appeal, the Ninth Circuit acknowledges that district courts may apply a harmless error analysis to disability cases, but finds that in view of the magnitude of the ALJ’s error in this case, it could not “confidently conclude,” with a “heightened degree of certainty,” that the error was harmless. The court also construed the “treating source” rule rather liberally, in finding that the provider in question was indeed a “treating physician.” On the other hand, the court interpreted the ALJ’s latitude in rejecting pain testimony less generously for the claimant, allowing the ALJ to discount the claimant’s pain allegations because her pain treatment and medication were “conservative,” and because the claimant attended vocational rehabilitation therapy sessions which required various physical activities. The case was remanded to the ALJ with an “invitation” for him to ‘comment” on the medical notes at issue.