No medical degree, no respect: Ninth Circuit upholds ALJ’s rejection of nurse practitioner’s opinion that claimant’s fibromyalgia is disabling.

Britton v. Colvin, No. 13-35626, 2015 DJDAR 6021 (9th Cir. June 2, 2015).

In this Social Security disability case, the applicant asserted that she was unable to work due to an assortment of ailments, primarily fibromyalgia. Her claim was doomed by (1) a medical expert who testified at her hearing that she was capable of “light” work; and (2) a vocational expert who testified that such work included some of her past jobs. On appeal, the claimant argued that the ALJ’s decision improperly discounted the opinion of her treating nurse practitioner, who stated that claimant’s fibromyalgia rendered her incapable of any kind of work. The court rejects this contention, noting that under circuit precedent, nurse practitioners generally do not qualify as “accepted medical sources,” unless they are working under the supervision and as an “agent” of a physician, and in this case such evidence was lacking. Thus the nurse’s opinion was relegated to the lesser evidentiary category of “other sources,” depriving it of the deference due to a treating medical provider, and allowing the ALJ to discount it based on the medical expert’s testimony of “light work” capability.

Just in time: Ninth Circuit construes filing deadlines in favor of plaintiffs in two different cases

In two recent decisions, the Ninth Circuit has interpreted statutes of limitations for the benefit of plaintiffs who, the defendants in each case had argued, filed their claims too late. In Escobedo v. Applebees, No. 12-16244, 2015 DJDAR 6064 (9th Cir. June 4, 2015), a former employee filed a pro per Title VII complaint charging her employer with sexual harassment. She submitted her complaint, along with an application to proceed in forma pauperis (IFP) to the district court clerk well within 90 days of receiving her “right to sue” letter from the EEOC, as required by the statute. The district court, however, did not consider her application until after the 90 day limitations period had expired; the court then denied the application because the plaintiff’s spouse allegedly had sufficient resources to pay the $350 filing fee. The court ordered plaintiff to pay the filing fee within 30 days, which she did. Nevertheless, the court then dismissed the complaint because plaintiff failed to “file” her complaint within the 90 day period.

On appeal, the Ninth Circuit reverses the dismissal, holding that the “filing” date of a complaint is the date it is delivered to the clerk, with or without an IFP application. If an IFP application is subsequently denied, the court must give the plaintiff a reasonable time to pay the fee, and if she does so, the complaint will be deemed filed as of the original submission date. Here, for good measure the court also reverses the denial of the IFP application. holding that the district court erred in assuming plaintiff’s spouse had assets which were “actually available” to help pay the filing fee.

In Le Gras v. AETNA Life Insurance Co., No. 12-56541, 2015 DJDAR 5798 (9th Cir. May 28, 2015), the Ninth Circuit also reversed a lower court decision dismissing a plaintiff’s complaint as time-barred. Here the plaintiff had received an administrative denial of his application for long-term disability benefits under a private insurance contract. The contract required applicants to exhaust administrative remedies by filing an internal appeal of the initial denial within 180 days of receipt (and also apparently provided that the appeal would be deemed “filed” as of the date it was placed in the mail to the insurer).

In this case the 180 day period expired on a Saturday. The plaintiff mailed his appeal the following Monday. The insurer declined to review the appeal, and later argued successfully in the district court that plaintiff’s subsequent court complaint was barred because the administrative appeal was filed two days late.

A divided Ninth Circuit reverses the judgment, holding as a matter of federal common law, governing the vast array of ERISA-related claims (such as this one), that if an administrative deadline falls on a weekend or holiday, it automatically is extended to the following business day. Thus plaintiff’s appeal in this case was timely, and the case is remanded for the insurer to consider the merits of the administrative appeal.

Judge Smith, in dissent, complains that that contractual deadlines were unambiguous; that plaintiff “could have mailed [his] appeal on any one of the 180 days” which followed his receipt of the denial letter; and (perhaps this was the really irritating factor for the dissent), plaintiff “never offered any reason to explain why he failed” to mail his appeal within the 180 day period.

Parents’ long battle with school district over special education services for child with Asperger’s syndrome ends in a hollow victory

Meridian Joint School District No. 2 v. D.A., No. 13-36200, 2015 DJDAR 7824 (9th Cir. July 6, 2015).

This case chronicles the efforts of the parents of a child with Asperger’s Syndrome to compel a public school district in Idaho, over the course of the child’s four years in high school, to conduct an “independent education evaluation” assessment pursuant to the Individuals with Disabilities in Education Act (I.D.E.A.). The school district had refused to conduct the assessment because the child–like many with this syndrome–tested high for “intelligence,” and was “successful” in some academic areas. After numerous skirmishes with the district, and multiple administrative hearings followed by judicial review, the parents finally obtained a judgment from the district court compelling the school district to conduct an assessment, but the parents ultimately lost their appeals of the district’s subsequent decision not to provide any special education services.

The Ninth Circuit here agrees that their success in compelling the assessment qualified the parents as “prevailing parties” for purposes of attorneys’ fees under the I.D.E.A., and also affirms (over the district’s objections) that their fee petition was timely filed. However, the court ultimately denies the fee claim because the I.D.E.A. authorizes fees only for children who have been “determined to need special education services,” and in this case the child obtained only an assessment, and did not succeed in securing any special education services. The district court had awarded fees, a result which it viewed as more consistent with the remedial purposes of the I.D.E.A., but the Ninth Circuit reverses that decision based on its reading of the plain language of fee-shifting provision.

Disability Applicant Finds ALJ’s Legal Errors To Be More Than “Harmless”

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.

Justice Thomas joins Court’s refusal to compel Texas to issue Confederate flag license plate

Walker v. Texas Division, Sons of Confederate Veterans, Inc., No. 14-144, 2015 DJDAR 6811 (U.S. S.Ct. June 18, 2015).

On June 17, nine African-Americans were murdered in an African-American church in Charleston, South Carolina by a white gunman who allegedly posted racist messages which included images of the Confederate battle flag. The murders have prompted reactions across the country–especially in the South–over the propriety of continuing displays, public and private, of the Confederate flag.

In an opinion completed prior to those murders, but coincidentally released the following day, the United States Supreme Court, in a 5 to 4 opinion authored by Justice Breyer, considered a case brought by a Texas non-profit group–the Sons of the Confederate Veterans–which pursuant to Texas law had proposed a “specialty” license plate design which included a Confederate flag image, and which Texas had declined to approve. The group sued, alleging that the state’s rejection of their proposed plate violated their First Amendment right to freedom of expression. The majority disagreed, and in a rather dry opinion, concluded that the state’s license plates, specialty or otherwise, constituted government speech, and that the state had the right to refuse the appearance of government endorsement of any particular image or cause, as it did in refusing to approve the Confederate flag design.

In a rare alignment with the Court’s liberal wing (and an unexplained one, since he published no separate opinion), Justice Thomas provided the fifth vote by which the Court upheld the rejection of the old symbol of the Confederacy.

Supreme Court refuses to allow enforcement of State’s violation of Medicaid provision

Armstrong v. Exceptional Child Center, __U.S.__, S.Ct. No. 14-15 (March 31, 2015)

The fears of advocates across the country were realized with the publication of this widely anticipated decision on March 31st. The plaintiffs in this case are providers of habilitative services who sued Idaho’s Department of Health and Welfare to compel the agency, under the Supremacy Clause and the Medicaid Act, to raise Medicaid reimbursement rates to comply with the mandate in section 30(a) of the Act [42 U.S.C. § 1396a(a)(30)] to “assure that payments … are sufficient to enlist enough providers so that care and services are available under the plan [to the same extent as in the general population].”

The Idaho district court and the Ninth Circuit concluded that the Supremacy Clause and the Medicaid statutory scheme gave the providers an implied federal right of action to enforce section 30(a) of the Act, and ordered the state to raise reimbursement rates in compliance with the statutory standard. In a 5-4 decision authored by Justice Scalia, with Justice Breyer incongruously aligned with the four conservative justices, and Justice Kennedy joining Justice Sotomayor’s dissent for the liberals, the majority ruled that neither the Supremacy Clause nor section 30(a) provides an implied private right of action to enforce the reimbursement rate standards.

The majority first dismissed the plaintiffs’ invocation of the Supremacy Clause as neither creating a cause of action nor providing a source of any substantive law. Justice Scalia then blithely overruled several decades of lower federal court decisions by holding that the availability of an “administrative remedy” from the federal Secretary of Health and Human Services, for a state’s non-compliance with section 30(a), indicated congressional intent to preclude a private right of action to enforce the statute directly in federal court.

Justice Sotomayor’s dissent mocked the so-called administrative “remedy” — the potential for the federal agency to withhold Medicaid funds from the state for non-compliance with section 30(a) — not only as completely inadequate but as “self-defeating” and “counterproductive,” because “a state’s non-compliance creates a damned-if-you-do, damned-if-you-don’t scenario [for the federal agency], where the withholding of state funds will only lead to depriving the poor of essential medical assistance.”

Jane Perkins, Legal Director of the National Health Law Program, who authored an amicus brief on behalf of many public interest advocacy organizations, stated that the decision “ignores hundreds of Supreme Court decisions, dating back to the early 1800s, which have recognized the ability of private parties to bring Supremacy Clause suits in federal courts to stop state officials from implementing state laws that violate a federal law or the Constitution.” While this ruling applies to medical providers, advocates fear that the majority’s analysis will soon be used to knock Medicaid recipients out of federal court as well.