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.

Defendant cannot recover costs under FEHA, absent finding the action was “objectively groundless”

Williams v. Chino Valley Independent Fire District, No. S213100 (Cal. May 14, 2015)

If the defendant prevails in a case brought under the Fair Employment and Housing Act (FEHA), can it recover courts costs as a matter of right, as provided in Code of Civil Procedure § 1032, “or only in the discretion of the trial court pursuant to Gov. Code § 12965, a provision of FEHA itself?” And if the court has such discretion, then what is the legal standard for determining a cost award to a prevailing defendant?

The California Supreme Court resolves these questions in a case brought by a firefighter who sued his fire district under the FEHA, alleging disability discrimination. The trial court granted summary judgment in favor of the defendant and then awarded it over $5,000 in costs. In so doing, the court outright rejected the plaintiff’s argument that the court should apply to the cost claim the same “asymmetrical” legal standard in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978) – namely, under which a defendant (unlike a plaintiff), even though the prevailing party would not receive attorney fees, unless the plaintiff’s action was objectively groundless. In awarding costs to the defendant in this case, the trial court made no findings that the plaintiff’s action was frivolous, unreasonable or groundless. The Court of Appeal affirmed, concluding that the Christianburg standard applied only to attorney fees, not costs.

In a unanimous decision, the California Supreme Court reversed, holding that the award of costs was wrong, in the absence of any finding the underlying action was “objectively groundless.” The Supreme Court’s adoption of an asymmetrical Christianburg standard for awarding fees and costs under the FEHA turns on a key analogy to similar awards under the Americans with Disabilities Act, which “makes fees and costs parallel” and gives trial courts discretion to award both, relying on the Christianburg standard, even though that case only involved attorney fees. Bottom line: In an FEHA case, the award of costs are controlled by Gov. Code § 12965, not Civil Procedure Code § 1032; and the awards must conform to the asymmetrical Christianburg standard.

Cities may impose conditions on businesses whose operations invite criminal activity, even in high-crime neighborhoods

Benetatos et al. v. City of Los Angeles, (2nd Dist. Ct. of App.), 2015 DJDAR 4149 (April 14, 2015)

Approving a potential mechanism for low income communities working with local government to combat crime in economically depressed neighborhoods, the Court of Appeal recently upheld a city’s effort to hold business owners accountable for their role in facilitating criminal activity.

The Los Angeles zoning administrator imposed, and the city council land use committee affirmed, a number of mitigation measures on the owners of a 24-hour fast food restaurant in Los Angeles that had become a magnet for prostitution, drug trade and public intoxication.

The owners filed a petition for writ of mandate in Superior Court challenging the operating conditions imposed by the city, resisting the requirements that they hire a security guard, reduce nighttime service hours and install video surveillance equipment. They contended that prior anti-crime measures they undertook at the request of the Los Angeles Police Department, including removing pay phones and outdoor seating, resulted in a significant loss of revenue. The owners argued that the court should use the independent review standard in assessing the validity of the operating conditions due to significant expense involved in complying with those conditions. The petitioners also argued that the restaurant was located in a high-crime area and the city was holding the owners responsible for the criminal activity of third parties. Applying the substantial evidence standard, the court found the operating conditions were a valid exercise of the city’s police power because it properly determined that the petitioner’s failure to maintain their property in a manner consistent with public safety and to discourage criminal activity constituted a public nuisance subject to abatement.

On appeal to the 2nd District Court of Appeal, the owners argued their petition should have been reviewed using the independent judgment standard, since the abatement measures imposed were so expensive they would force the owners to close the restaurant, abridging a fundamental vested right. Finding that the owners presented insufficient evidence of the cost or burden of the operating conditions imposed by the city, the court held that the owner’s right was not a fundamental vested right and that the court below appropriately used the substantial evidence standard of review. The court further held that substantial evidence supported the lower court’s finding that under Los Angeles Municipal Code Section 12.27.1, the restaurant was operated in a manner that constituted a nuisance and that the city’s abatement measures properly addressed that nuisance.

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.