This could be a very important Ninth Circuit Social Security disability opinion because it appears to be an effort by Judge Wallace–who ironically in his long career has authored far more opinions upholding the denial of disability benefits than reversing such denials–to write a definitive instructional guide for Administrative Law Judges on how to assess a disability applicant’s testimony concerning disabling pain (or other symptoms). This issue, is of course, a recurring one in Social Security disability cases, and periodically over the decades the Ninth Circuit has issued opinions which attempted, unsuccessfully, to be the “final word” on the evaluation of pain testimony.

In this case the Court reverses the denial of benefits,which was supported in part by the ALJ’s finding that the claimant’s “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent” with the medical evidence. (This is a common boilerplate sentence found in ALJ opinions).

The Court’s summary of the legal standard governing this issue is worth repeating in full: “When an [ALJ} determines that a claimant for Social Security benefits is not malingering and has provided objective medical evidence of an underlying impairment which might reasonably produce the pain or other symptoms she alleges, the ALJ may reject the claimant’s testimony about the severity of those symptoms only by providing specific, clear, and convincing reasons for doing so. We hold that an ALJ does not provide [such reasons] simply by reciting the medical existence in support of his or her residual functional capacity assessment. To ensure that our review of the ALJ’s credibility determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony she finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination.”

Not satisfied with re-articulating the pain testimony credibility standard, Judge Wallace addresses two other issues subject to recent debate in different circuit Social Security cases: (1) “harmless error,” which the courts should be “cautious” about finding, and which should never apply to errors in assessing credibility determinations, and (2) whether, after a reversal of benefits for legal errors, the case should be remanded for immediate payment of benefits (only under “rare circumstances”) or sent back for further administrative proceedings (which Judge Wallace clearly thinks is the usual course that should be followed).

Christian Pharmacists in Washington Lose Free Exercise Challenge to Pharmacy Regulations Requiring Timely Provision of “Plan B” Contraceptives

Posted on September 14, 2015 by Gary Smith

Storman’s Inc. v. Weisman, No. 12-35221, 2015 DJDAR 8463 (9th Cir. July 24, 2015).

In a case that began in 2007, and now reaches the Ninth Circuit for the second time, the court again reverses the district court’s judgment in favor of several plaintiffs who challenged Washington state rules regulating the timely provision and delivery of pharmacy prescriptions. The plaintiffs had religious objections to delivering or stocking so-called “Plan B” contraceptives, even though the rules attempted to accommodate such objections by allowing objecting pharmacists to not provide or deliver the prescriptions so long as a substitute pharmacist can be found to meet the patient’s needs.

This decision, which attracted dozens of amicus briefs by religious organizations both conservative and liberal in their social outlook, may well head to the Supreme Court, especially in the wake of the Supreme Court’s Hobby Lobby decision last Term. After a long analysis, the panel rejects the plaintiffs’ claim that because their participation in the provision of the Plan B drug implicates the “the taking of a human life,” it constitutes a protected liberty interest under the Due Process Clause. The court ultimately concludes that the pharmacy rules at issue “are neutral, generally applicable, and rationally further the state’s interest in patient safety.”

Employer Need Not Retain or Accommodate Employee with Mental Disability, Where the Condition Causes him to Make Repeated Threats of Violence Against Supervisors and Co-Workers

Posted on September 14, 2015 by Gary Smith

Mayo v. PCC Structurals, Inc., No.13-35643, 2015 DJDAR 8590 (9th Cir. July 29, 2015).

The plaintiff in this case suffered from major depressive disorder, but with treatment and medication he performed his job without incident for a number of years. At some point, however, he began to make repeated and detailed plans, which he shared with his co-workers, about how he was going to kill—in gruesome manner–his supervisors and other workers. When he told the employer that he “couldn’t guarantee” he wouldn’t carry out these plans, he was terminated and barred from the premises. He subsequently was hospitalized, received treatment for several months, and sought reinstatement to his job, which the employer refused.

He sued, claiming disability discrimination in violation of the Americans with Disabilities Act (ADA), and an analogous state statute in Oregon, and alleged that his disturbing comments and statements were “symptoms of and caused by” his disability, making his termination discriminatory.

The district court and the Ninth Circuit disagreed. To prove an ADA claim of unlawful discharge, an employee must establish a prima facie case by showing (1) he is a disabled person, within the meaning of the statute; (2) he is a “qualified individual” with a disability; and (3) he suffered an adverse employment action due to his disability. A “qualified individual” is a person who, “with or without reasonable accommodation,” can perform “the essential functions of the job.”

Following several other circuit decisions with similar facts, the Ninth Circuit holds that “while an employee can be qualified despite adverse reactions to stress in the workplace,” he cannot be “qualified” when the stress leads him to “threaten to kill his co-workers in chilling detail.” Even assuming that the threats stemmed from his disability, requiring employers to retain such workers “would place the employer in an impossible position,” and would force the employer “to choose between ADA liability and a hostile work environment.”

In an sympathetic final paragraph, the court acknowledges that “depression and mental illness are serious problems that effect millions of persons, including judges and lawyers,” and that many such persons are capable of working despite their “struggles” with these ailments. But the ADA, concludes the court, does not require employers to “simply cross their fingers and hope that [an employee’s] violent threats will ring hollow.”

National Park Hikers Beware: Your Government May Escape Responsibility For Deadly Mountain Goat Attacks

Posted on September 14, 2015 by Gary Smith

Chadd v. United States National Park Service, No. 12-36023, 2015 DJDAR 8542 (9th Cir. July 27, 2015).

In 2010, a sixty-three year old hiker in the Olympic National Park in Washington was attacked by a large (370 pound) mountain goat–one of nearly 300 goats in the park–which gored him in the thigh, severing his femoral artery, and caused him to bleed to death. His survivors sued for damages under the Federal Tort Claims Act (FTCA), alleging that the park service, which had been aware of the aggressive tendencies of this particular goat and had been monitoring the goat, should have killed or removed it prior to the attack (the park service shot and killed the goat after the attack). For some years the service had been attempting to control the behavior of this and other aggressive goats in the park through a process called “hazing,” which involved “aggressive conditioning techniques” like yelling at the goats, and throwing things at them, to teach them to be more fearful of humans.

The FTCA waives the government’s sovereign immunity for tort-type claims, unless the claim at issue falls within “the discretionary function” exception to the waiver. Here, because there was no specific directive on the management of potentially dangerous animals which the park service had violated, and since the service had been engaged in a course of action trying to manage the aggressive goats in the park, the majority concludes that the government’s action is shielded by the discretionary function exception. Accordingly, the majority rules that the plaintiff’s claim is not actionable under the FTCA.

Judge Kleinfeld, in dissent, sees it differently: This “aging tourist, 63, was killed by a horned animal larger than an NFL lineman, which had been the terror of the park for four years…This was no random, unpredictable animal attack. Park personnel knew this particular goat and had been dealing unsuccessfully with its unusual, aggressive behavior towards them and park visitors for four years…This [case does not involve] a policy decision,” but is “analogous to a routine tort case where a homeowner has a fierce dog that has attacked people, but does not get rid of the dog until it has torn some child’s face off. This was ordinary garden variety negligence, which the government must compensate…”

Rush to Judgment: Ninth Circuit revives race discrimination claims brought By Latino students against Arizona education officials

Posted on July 31, 2015 by Gary Smith

Arce v. Douglas, No. 13-15657, 2015 DJDAR 7887 (9th Cir. July 7, 2015).

In the 1990s, the Tucson public school district–with a student population exceeding 60% Mexican or other Hispanic heritage children–implemented a “Mexican-American Studies Program” (MAS). It was designed to “provide a culturally relevant curriculum for students from kindergarten to 12th grade by incorporating historical and contemporary Mexican-American contributions into coursework and classroom studies.”

The program drew criticism from the Arizona Superintendent of Public Instruction, who sponsored a state statute enacted in 2010 prohibiting any public school districts from including in their curricula any courses which “promote resentment towards a race or class of people;” are “designed primarily for pupils of a particular ethnic group;” “advocate ethnic solidarity instead of the treatment of pupils as individuals;” and/or, just for good measure, “promote the overthrow of the U.S. government.”

In 2011, the new Superintendent of Public Instruction (the prior one having just been elected state Attorney General) found that the Tucson MAS program violated the new law, and gave the district 60 days to eliminate the program or have its funding reduced. He made this finding to reaffirm the out-going superintendent’s premature finding of a violation (it was made even before the effective date of the new law), and in spite of an independent auditor’s finding–which the superintendent’s office had commissioned–that the MAS program did not violate the new law.

Various teachers and students from the school district sued, alleging an array of constitutional challenges to the new statute and its enforcement, including various First Amendment challenges as well as an equal protection claim that the statute was motivated by an intent to discriminate against MAS students on the basis of race and national origin.

The district court mostly granted summary judgment to the defendants, except as to plaintiffs’ First Amendment “overbreadth” attack on the statute, and in fact the district court granted summary judgment sua sponte to defendants on plaintiffs’ race discrimination claim. On appeal, a divided Ninth Circuit panel upholds the judgment as to the First Amendment claim, and reverses and remands for trial on the plaintiffs’ equal protection claim; the court observes that the (two) superintendents’ rush to find the MAS program in violation of the new law, especially in light of the contrary findings of the auditor commissioned by the superintendent, raises genuine issues of fact on plaintiffs’ claim of discriminatory intent.

Plaintiffs are represented by constitutional scholar Erwin Chemerinsky in this case, which has attracted national attention, with civil rights and education advocacy groups from both sides of the political spectrum participating as amicus curiae.

Filter by Topic