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Ninth Circuit Panel, Once in Accord, Is Split on ‘Germane Reason’ Rule in Social Security Cases
Bumatay Is Alone in Disavowing Requirement That ALJ Explain Rejection of Lay Testimony
By a MetNews Staff Writer
Two judges of the Ninth U.S. Circuit Court of Appeals yesterday repudiated their recent concurrence in the view that the judicially crafted rule that administrative law judges hearing appeals from rulings of the commissioner of social security must set forth a “germane reason” for rejecting the views of lay witnesses.
That rule, Judge Patrick J. Bumatay said in a March 7 published opinion, has been abrogated by regulations promulgated by the Social Security Administration in 2017. Judge Michelle T. Friedland and Senior Judge Susan P. Graber concurred.
But on April 7, the opinion was withdrawn, and yesterday, Bumatay became the lone adherent to the view that the “germane reason” rule no longer exists, remarking in a concurring opinion:
“It’s a shame we backed off jettisoning this improper rule.”
Graber, also in a concurring opinion, set forth her disagreement with Bumatay.
In a memorandum opinion, a District Court order affirming an administrative law judge’s denial of social security benefits is upheld. That opinion does not address the viability of the “germane reason” rule, saying that “any error by the ALJ in not giving a germane reason for rejecting” testimony by the claimant’s wife, a layperson, “was harmless” because it was “substantially similar” to expert evidence that was “appropriately rejected.”
Bumatay’s Opinion
As to the “germane reason” rule, Bumatay said:
“This rule was not based on any statutory or regulatory requirement—in other words, we made it up. But in 2017, the Social Security Administration revamped its regulations to contradict our ‘germane reason’ requirement….Because of this regulatory change, we should have held that our ‘germane reasons’ requirement no longer applies to Social Security claims filed on or after March 27, 2017.”
Under regulations that went into effect on that date, he wrote, “ALJs are not required to articulate how they consider nonmedical sources as they are required to do for medical sources.”
Bumatay declared that “the ALJ did not err in discounting the spousal evidence without explanation.”
Graber’s View
Graber countered:
“Judge Bumatay’s concurrence asserts that our “germane reasons” precedent is invented and therefore illegitimate….Even if that assertion were correct, a three-judge panel cannot overrule this court’s precedent. In my view, moreover, our ‘germane reasons’ rule follows logically from our statutory authority to review ALJs’ decisions. If ALJs did not have to set forth their reasoning, it would be difficult, if not impossible, for us to conduct a full and thorough review of their decisions when, for instance, a claimant presents extensive evidence from family members and friends.”
She went on to say:
“[T]he new regulations concerning medical sources are not clearly irreconcilable with our ‘germane reasons’ precedent governing lay testimony. Accordingly, that precedent still applies.”
The case is Hudnall v. Dudek, 23-372.
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