September 24, 2017

Tenth Circuit: Appeals Council Required Only to “Consider” New Evidence of Disability

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The US Social Security Administration denied her claim. She received a hearing with an administrative law judge (ALJ), who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Tenth Circuit: Disability Appeals Council Not Required to Expressly Evaluate Treating Physician’s Report

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The Social Security Administration denied her claim. She received a hearing with an administrative law judge, who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Tenth Circuit: ALJ Properly Considered Evidence as a Whole and Gave Good Reasons for Findings

The Tenth Circuit Court of Appeals published its previously issued opinion in Vigil v. Colvin on Monday, November 16, 2015.

Kenneth Vigil filed for Social Security disability benefits due to a “bad left knee and ankle, anxiety, depression, and pain in his left heel and back.” He requested and received a hearing before an ALJ, at which he was represented by counsel. Vigil and a vocational expert testified at the hearing. The ALJ denied Vigil’s claim for benefits, finding that although he demonstrated moderate impairment and was unable to return to his previous employment, he could perform unskilled work that existed in substantial numbers in the national economy. The ALJ denied Vigil’s claim for benefits based on the fifth part of the five-part analysis for determining disability. The Appeals Council denied review, and the district court affirmed.

The Tenth Circuit reviewed the ALJ’s decision to determine whether the factual findings were supported by substantial evidence and whether the correct legal standards were applied. Vigil first argued that the ALJ did not have a valid reason for rejecting the restrictions imposed by his consultative physician, Dr. Summerlin. The Tenth Circuit reviewed the record and found that the ALJ gave Dr. Summerlin’s opinion moderate weight. In his order, the ALJ found that Dr. Summerlin’s restrictions were inconsistent with his exam results and he did not explain the discrepancy. The Tenth Circuit determined that the ALJ’s findings were supported by substantial evidence and affirmed, noting that the ALJ considered all of the evidence as well as the record as a whole and gave good reasons for the weight he afforded Dr. Summerlin’s report. The Tenth Circuit found no error.

Vigil next argued that the ALJ failed to adequately account for his memory and concentration deficits in calculating his residual functional capacity (RFC). The Tenth Circuit again found no error. The ALJ found at step three of the analysis that Vigil demonstrated moderate difficulties in concentration, persistence, and pace in social functioning. The ALJ accounted for those limitations by reducing Vigil’s RFC to one or two, meaning unskilled work. The Tenth Circuit noted that the evidence in the record supported the ALJ’s determination.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Workers’ Compensation Act Requires Statutory Interest on All Past Due Amounts

The Colorado Court of Appeals issued its opinion in Keel v. Industrial Claim Appeals Office on Thursday, January 14, 2016.

John Keel, a resident of Mississippi, was killed in a workplace accident in Colorado. The employer paid workers’ compensation death benefits in Mississippi from 2010 to 2013, and claimants (Keel’s surviving spouse and children) applied for Colorado benefits. In 2013, an ALJ determined that Colorado had jurisdiction and the employer was liable for death benefits under the Colorado Workers’ Compensation Act. The ALJ left for future determination the amount of the death benefit, whether the employer should pay past due death benefits, and whether interest was due on past due amounts.

The employer subsequently calculated Keel’s average weekly wage and subtracted offsets for Social Security death benefits and Mississippi workers’ compensation benefits, and issued a check to claimants for $66,822 for past due death benefits. The employer also stated it owed claimants an additional $2,040.32 in interest, having subtracted the Mississippi death benefits paid from the past due Colorado death benefits and using the statutory 8% interest rate. Claimants contended the employer significantly miscalculated the interest award.

An ALJ agreed with the employer’s reasoning and ordered it to pay the amount of interest it had calculated. A panel of the Industrial Claim Appeals Office calculated interest differently and ordered employer to pay interest on $41,841.08 instead. On remand, the ALJ adopted the ICAO’s reasoning and ordered the employer to pay interest on the ICAO’s calculated amount. Claimants again appealed and the ICAO affirmed the ALJ’s order.

Claimants then appealed to the Colorado Court of Appeals, which clarified that the issue on appeal was what the effect of death benefits paid in another state was on past due Colorado benefits. The court agreed with claimants’ contention that the ICAO erred in determining that C.R.S. § 8-42-114 did not apply, and found that by its plain and ordinary language claimants were entitled to 8% interest on the entire past due amount, $66,822.

The court analyzed the ICAO’s reasoning and respectfully disagreed with its conclusions. The court noted that it was not bound by the ICAO’s conclusions, which were primarily based on policy concerns. ICAO relied on the Full Faith and Credit Clause in determining that the Mississippi benefits were subsumed by the Colorado benefits, but the court of appeals found the Full Faith and Credit Clause inapplicable where, as here, the industrial commission of one state lacks authority to bar recovery in another state. Rather, if more than one state has jurisdiction over a workers’ compensation claim, the claimant can seek successive awards from those states. Since the ICAO cited no Colorado authority to support its rationale, and instead applied out-of-state case law, the court of appeals found the panel’s reasoning flawed. ICAO was also concerned that the claimants might receive a windfall or a double recovery. The court found that the claimants in this case did not receive a double recovery because the Colorado benefits were offset by the Mississippi benefits. The panel also expressed concern that a claimant might time its recovery in a way to maximize benefits, which the court of appeals thought was a concern better addressed to the legislature.

The ICAO’s order was reversed with directions to remand to the ALJ so that she may order the employer to pay statutory interest on the entire past due amount.

Tenth Circuit: ALJ’s Opinion was Well Reasoned and Considered All Evidence so Reversal Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Hendron v. Colvin on Friday, September 5, 2014.

Linda Hendron applied for disability benefits three times. The first application, filed in 1999, was denied on the merits. The second application, filed in 2001, was denied on the basis of res judicata. The third application, which is the subject of this appeal, was filed in June 2009, based on a date of disability of November 1, 1995. The agency denied the claim, again based on res judicata, and Ms. Hendron requested a hearing before an administrative law judge (ALJ).

The ALJ held a hearing at which Ms. Hendron testified. The ALJ considered 19 medical exhibits that had not been previously considered. After the hearing, the ALJ issued findings of fact, concluding that Ms. Hendron was not disabled as of the date she was last insured, December 31, 1995. The ALJ found that although Ms. Hendron could not return to her former employment as a nurse, she was capable of the full range of sedentary activities. The Appeals Panel denied review. Ms. Hendron appealed to the district court, which reversed and remanded the ALJ’s decision, concluding that the ALJ failed to cite evidence that Ms. Hendron could perform the full range of sedentary work during the relevant time period. The Commissioner appealed to the Tenth Circuit.

The Tenth Circuit found that the ALJ’s decision was reasonable and that the ALJ considered all the evidence before making a well-reasoned decision on the merits. Ms. Hendron contends that the ALJ’s decision did not support the residual functional capacity determination with a narrative statement addressing each aspect of sedentary work, essentially contesting the form of the ALJ’s decision but not the sufficiency of the evidence. The Tenth Circuit found that the evidence was more than sufficient to support the ALJ’s determination, and reversed the district court’s judgment. The case was remanded for reinstatement of the ALJ’s decision determining Ms. Hendron not to be disabled during the relevant time period.

Tenth Circuit: ALJ’s Opinions Unsupported by Sufficient Evidentiary Findings

The Tenth Circuit Court of Appeals issued its opinion in Knight v. Colvin on June 24, 2014 as an unpublished opinion. On July 30, 2014, the Tenth Circuit granted the parties’ Unopposed Motion to Publish and reformatted the opinion as a published opinion.

Dawn Knight applied for Supplemental Security Income (SSI) benefits for her daughter, P.K., in April 2007, claiming that her daughter suffered hearing loss, a learning disability, ADHD, and “temper.” In July 2007, Dr. David LaCourt evaluated P.K. for the New Mexico Disability Determination Services Unit. He reported that she was taking Dextroamphetamine for her ADHD, had written a self-harming note recently, and was reading at a second-grade level even though she was in fourth grade at the time of the examination. P.K.’s third and fourth grade teachers filled out functional assessment questionnaires and indicated that P.K. had serious problems acquiring and using information. In September 2009, P.K.’s fifth grade teacher filled out a similar questionnaire, noting the same problems with acquiring and using information and also detailing P.K.’s aggressive behavior on the playground.

Dr. E.B. Hall managed P.K.’s medication regimen from 2007 through 2010. His notes reflected behavioral problems including threatening a sibling with a knife, hearing voices, hitting another child in the face, mood swings, and failure to take her medication. He also noted, however, that P.K. was getting good grades at school.

In March 2010, P.K. was evaluated at Hogares, a mental health evaluation and treatment center for children. There, she told the therapist that she often thinks about killing herself, that she hears voices and thinks people are talking about her when they are not, and that she feels like nothing is ever going to get better for her. The therapist diagnosed P.K. with ADHD, oppositional-defiant disorder, bipolar disorder, and adjustment disorder with anxiety. The therapist noted that P.K. was doing poorly in school, apparently due to her mental health problems.

In June 2010, Knight and P.K. appeared before an administrative law judge (ALJ). Both P.K. and Knight testified as to P.K.’s behavior, performance in school, and medications. The ALJ found that P.K. suffered from hearing loss, a reading disorder, and ADHD, but concluded that none of these impairments medically or functionally equalled an impairment listed in the regulations. He rejected Dr. Hall’s opinions and those of the Hogares therapist, concluding they were only credible insofar as they supported a finding that P.K. was not disabled.

Knight sought review from the Appeals Council and submitted additional therapy notes from Hogares to evidence that P.K. inconsistently takes her medication and that one of the goals of therapy was to stop P.K. from talking about harming herself and others. Knight also reported that they were being kicked out of their housing arrangement because P.K. had broken a window and punched a hole in the wall. The Appeals Council denied review. Knight then appealed to the district court. The district court adopted a magistrate judge’s recommendation that the petition be denied. Knight then appealed to the Tenth Circuit.

The Tenth Circuit’s review was limited to whether the Commissioner applied the correct legal standards and whether the agency’s factual findings were supported by substantial evidence. First, the Tenth Circuit addressed Knight’s contention that the ALJ improperly discounted her credibility, Dr. Hall’s opinions, and the functional equivalency of P.K.’s impairments. The Tenth Circuit found that the ALJ dismissed Knight’s testimony without making necessary credibility determinations. The ALJ referred to credibility only generically, saying that statements were only credible to the extent they supported a finding that P.K. was not disabled. There was no record whether his statements applied to Knight, P.K., or both. There was also no record of what evidence, if any, belied Knight’s or P.K.’s testimony. The Tenth Circuit reversed and remanded for a proper credibility determination.

Next, the Tenth Circuit turned to Knight’s challenge to the ALJ’s determination that P.K. has only a marked limitation in interacting and relating with others. Knight argued that the ALJ improperly diminished the importance of Dr. Hall’s opinion, which characterized P.K.’s limitation as extreme. The Tenth Circuit was unable to tell if the evidence was sufficient to discredit Dr. Hall’s opinion, since the ALJ did not adequately link evidence to its vague reasoning discounting Dr. Hall’s opinion. The Tenth Circuit reversed and remanded for sufficient findings on this issue as well.

Knight next contended that the ALJ improperly determined that P.K. has less than a marked limitation in the domain of caring for herself. Focusing on the child’s “personal needs, health, and safety,” the Tenth Circuit found adequate references in the record to P.K.’s suicidal ideation and refusal to take medication. The Tenth Circuit found the ALJ’s determination “devoid of support” in the record and remanded for determination of the severity of P.K.’s impairment. The Tenth Circuit also addressed additional findings that would be needed on remand and directed the ALJ to reevaluate P.K.’s functioning in all domains.

The Tenth Circuit reversed the judgment of the district court and remanded so that the district court could remand to the proper agency for further findings consistent with the Tenth Circuit’s opinion.

Tenth Circuit: Denial of Social Security Disability Affirmed

The Tenth Circuit Court of Appeals published its opinion in Mays v. Colvin on Wednesday, January 8, 2014.

Rebecca Mays appealed from a district court order affirming the Social Security Administration’s (SSA) denial of her application for disability benefits. In assessing the residual functional capacity at step four, the ALJ found a residual functional capacity that allowed Mays to perform a full range of sedentary work. In making this finding, the ALJ found that the opinion of Mays’ treating physician, Dr. Chorley, was not consistent with the objective medical evidence.

Mays claimed that the SSA failed to provide a complete administrative record. Dr. Chorley changed his assessment of residual functional capacity, but the new version was mistakenly omitted in the eventual administrative record. Ms. Mays contends that the omission entailed a denial of due process and left the eventual findings without substantial evidence. The Tenth Circuit concluded that no due-process violation took place because Mays had not shown a likelihood of a different result if the ALJ had addressed Dr. Chorley’s amended report.

The  court also rejected Mays’s argument that the ALJ also failed to properly analyze the medical-source evidence and affirmed.

Tenth Circuit: In SSDI and SSI Claims, “Not Severe” Impairments Must Still Be Considered at Step 4 of RFC Analysis

The Tenth Circuit Court of Appeals published its opinion in Wells v. Colvin on Monday, August 19, 2013.

Joe Ella Wells applied for Social Security Disability and Supplemental Security Income beginning in 1994 and after her claims went up and down on appeal to the Appeals Council and she refiled several times, an ALJ issued a decision in 2009 that is the subject of the present appeal. The administrative law judge (ALJ) concluded she was not disabled under the Social Security Act and the Appeals Council denied Wells’s appeal.

In a social security disability or Supplemental Security Income (SSI) case, an ALJ must evaluate the effect of a claimant’s mental impairments on her ability to work using a “special technique” prescribed by the Commissioner’s regulations. At step two of the Commissioner’s five-step analysis, this special technique requires the ALJ to determine whether the mental impairment is “severe” or “not severe.” The ALJ found Wells’s mental impairments were not severe. But the regulations also instruct that even if the ALJ determines that a claimant’s medically determinable mental impairments are “not severe,” he must further consider and discuss them as part of his residual functional capacity (RFC) analysis at step four.

The Tenth Circuit found that the ALJ did not provide an adequate RFC analysis and to the extent the ALJ intended his statements about credibility to constitute a step-four mental RFC analysis, the conclusions he reached from these statements were not supported by substantial evidence.

Wells also argued substantial evidence was lacking because the ALJ rejected all three medical opinions about her mental impairments, two of which said she had marked or moderate limitations in certain areas. The court held that where the medical opinions conflicted with the ALJ’s decision so seriously, it may have been inappropriate for the ALJ to reach an RFC determination without expert medical assistance.

The court remanded for further proceedings concerning the effect of Wells’s mental impairments on her RFC and further analysis at steps four and five. It also directed the ALJ to carefully reconsider whether to adopt the restrictions on Wells’s mental RFC detailed in the medical opinions contained in the file, or whether further medical evidence was needed on this issue. The court also directed the ALJ to re-evaluate Wells’s alleged limitations on reaching and handling. The court rejected several other arguments.

Tenth Circuit: Social Security ALJ Properly Applied Medical-Improvement Standard in Finding Disability Ceased

The Tenth Circuit Court of Appeals published its opinion in Newbold v. Colvin on Thursday, June 13, 2013.

Tyla M. Newbold sought disability insurance benefits (DIB) and supplemental security income (SSI) based on “fibromyalgia, chronic fatigue, depression, anxiety[,] and chronic migraines.” She appealed from a magistrate judge’s order affirming the Commissioner’s decision to grant social security benefits from October 1, 2006, through November 1, 2007, and to deny benefits thereafter. The Commissioner determined Ms. Newbold had been disabled during this closed period due to physical and mental impairments, but that her disability ceased on November 2, 2007, when she experienced a medical improvement related to her ability to work.

Newbold argued that the ALJ improperly found medical-improvement based on symptom improvement alone in making his disability-cessation decision. The Tenth Circuit disagreed. “The Commissioner’s regulations, Shepherd’s application of those regulations, preexisting Tenth Circuit case law, and the POMS demonstrate that an ALJ may find medical improvement based on an improvement in signs, laboratory findings, and/or symptoms.”

The court also concluded that substantial evidence supported the ALJ’s decision to give Newbold’s treating rheumatologist’s opinion, after November 1, 2007, diminished weight as it was at odds with his own notes on that date showing improvement. The court affirmed the district court.

Tenth Circuit: Social Security Income Need Not be Included in Calculation of Projected Disposable Income in Chapter 13 Bankruptcy

The Tenth Circuit issued its opinion in Anderson vs. Cranmer on Tuesday, October 23, 2012.

In 2010, Cranmer filed a petition for relief under Chapter 13 of the Bankruptcy Code. In connection with the petition, he filed a Form 22C (Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income). As allowed, he did not include his Social Security income (SSI) on the Form. Cranmer also filed Schedules I & J. On Schedule I, which represents his monthly income, Cranmer included $1940 of Social Security income. On Schedule J, which represents his monthly expenses, Cranmer deducted a portion of that Social Security income as exempt social security funds. The Chapter 13 repayment plan Cranmer ultimately proposed, therefore, allowed him to keep a portion of his SSI rather than commit it to the repayment of creditors.

The Trustee objected to the plan. While the Trustee acknowledged SSI is excluded from the calculation of current monthly income (Form 22C) he argued SSI should be included in the calculation of projected disposable income, which is based on Schedules I and J. The bankruptcy court denied confirmation of the plan, concluding that SSI must be included in calculation and Cranmer’s failure to do so meant he did not propose his plan in good faith. Cranmer appealed and the district court reversed. The Trustee appealed to the Tenth Circuit.

The Bankruptcy Code does not define “projected disposable income.” The Trustee does not dispute SSI is expressly excluded from disposable income. Instead, he insists that it should be included in the calculation of projected disposable income. Although the term “projected disposable income” is not defined, it incorporates the term “disposable income,” which is defined and which expressly excludes SSI. The mere placement of the adjective “projected” in front of the words “disposable income” does not imbue the term “disposable income” with different substantive components. Thus, the plain language of the Bankruptcy Code demonstrates SSI is excluded from the projected disposable income calculation.

The Tenth Circuit concluded that Social Security income need not be included in the calculation of projected disposable income, and that Cranmer’s failure to include it is not grounds for finding he did not propose his plan in good faith.

The district court’s order is AFFIRMED.

Tenth Circuit: Commissioner’s Denial of Social Security Disability Benefits Affirmed

The Tenth Circuit issued its opinion in Pennie Keyes-Zachary v. Astrue on Tuesday, September 18, 2012.

Pennie Keyes-Zachary appealed the district court’s order affirming the Commissioner’s decision denying her application for Social Security disability benefits. Applying the Medical-Vocational Guidelines, the ALJ concluded that Ms. Keyes-Zachary was not disabled within the meaning of the Social Security Act. After a thorough analysis of the case history and medical records, the Tenth Circuit held that the ALJ’s factual findings were supported by substantial evidence, and AFFIRMED the Commissioner’s decision.

Colorado Court of Appeals: Governor Had Right to Opt-Out of Physician Supervision Requirement for Certified Registered Nurse Anesthetists

The Colorado Court of Appeals issued its opinion in Colorado Medical Society v. Hickenlooper, Governor of Colorado on July 19, 2012.

Dismissal for Failure to State a Claim—Social Security Act.

The Colorado Medical Society and Colorado Society of Anesthesiologists (collectively, Doctors) appealed the district court’s order dismissing their complaint for failure to state a claim against the Colorado Governor John Hickenlooper. The Colorado Association of Nurse Anesthetists, Colorado Nurses Association, and Colorado Hospital Association (collectively, Nurses) joined the Governor’s motion to dismiss. The order was affirmed.

Under the Social Security Act (Act), ambulatory surgical centers, hospitals, and critical access hospitals must fulfill certain conditions of participation to receive Medicare reimbursement. One condition is that certified registered nurse anesthetists (CRNAs) administering anesthesia must be supervised by a physician. However, states may opt out of the physician supervision requirement if “the State in which the [facility] is located submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State’s Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs.” The letter must attest that the Governor consulted the Boards and concluded the opt-out “is in the best interests of the State’s citizens” and “consistent with State law.”

Fifteen other states have opted out of physician supervision of nurses administering anesthesia. On July 19, 2010, former Governor Bill Ritter, Jr. requested advice from the Colorado Medical Board and the Colorado Board of Nursing about whether the opt-out was consistent with the law and in the best interests of Colorado’s citizens. In August, both recommended the opt-out. On September 27, 2010, Governor Ritter notified the Centers for Medicare and Medicaid Services about his consultation with the Boards and exercised the opt-out as to all critical access hospitals and thirteen rural general hospitals (later adding a fourteenth).

On September 28, 2010, the Doctors filed this action for declaratory relief, arguing the opt-out was inconsistent with Colorado law. The Nurses intervened and joined Governor Hickenlooper in a motion to dismiss. The district court granted the motion to dismiss, and the Doctors appealed.

The Court of Appeals first rejected an argument raised only by the Colorado Hospital Association: that the decision to opt out is “a decision committed to political branches and is not subject to judicial review.” The Court found no “textually demonstrable constitutional commitment” that expressly or impliedly vests the Governor with the sole discretion to determine whether CRNAs may administer anesthesia without physician supervision.

The Court rejected the Governor’s argument that the Doctors lacked standing to challenge the opt-out decision. The Court found the Doctors’ alleged injuries to their medical licenses and reputations sufficient to establish both tangible and intangible injuries concerning a legally protected interest (their medical licenses).

The Doctors argued it was error to dismiss their complaint, contending the Act requires physician supervision of CRNAs because (1) anesthesia is a medication; (2) medication is part of a medical plan; and (3) the administration of anesthesia is a “delegated medical function” subject to physician supervision. The Court disagreed, noting that the Act defines professional nursing as, in part, the performance of “delegated medical functions.” Such a function is defined, in part, as “an aspect of care that implements and is consistent with the medical plan as prescribed by a licensed or otherwise legally authorized physician.” Physician supervision is required when a nurse performs a delegated medical function. A CRNA, however, is an “advanced practice nurse,” which means a professional nurse “who obtains specialized education or training.”

The Court agreed with the district court that the Doctors’ argument cuts too broadly, because a CRNA never would administer any treatment unless implementing a medical plan. In addition, the Act’s definition of “practice of professional nursing” clearly recognizes many independent functions that are different from delegated medical functions. The Court concluded that CRNAs who administer anesthesia are conducting independent nursing functions within the scope, role, and population focus that the Nursing Board has approved for them. They are not conducting delegated medical functions and therefore do not require physician supervision. The order of dismissal was affirmed.

Summary and full case available here.