Facts

Parties:

  • Appellant: [A.] , represented by attorney Dr. Pierre Heusser
  • Respondent: Disability Insurance Office of the Canton of Aargau

Facts:

  • [A.] received benefits from the disability insurance due to a congenital defect (adrenogenital syndrome and adrenal insufficiency) until the age of 20.
  • On March 20, 2017, she reported again to the disability insurance due to mental complaints.
  • The Disability Insurance Office arranged for a multidisciplinary assessment by the SMAB, which resulted in a report dated August 3, 2018.
  • The Disability Insurance Office denied a pension claim with a decision dated January 15, 2019.
  • [A.] submitted a medical report and a statement, which were not considered.
  • The insurance court of the canton of Aargau dismissed the appeal with a decision dated November 18, 2019.

Main issue:

  • Whether the cantonal court rightly confirmed the decision of the Disability Insurance Office that no pension claim exists.

Considerations

The appeal in public law matters can be raised due to a violation of the law according to Art. 95 FSCA. FSCA. The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 para. 1 FSCA). It can correct or supplement the lower court's findings of fact ex officio only if they are obviously incorrect or based on a violation of the law within the meaning of Art. 95 FSCA (Art. 105 para. 2 FSCA).

The issue is whether the cantonal court rightly confirmed the decision of January 15, 2019, according to which no pension claim exists. The cantonal court has correctly set out the material and evidentiary legal bases relevant to the assessment of the case in accordance with the law and case law. This concerns, in particular, the relevant bases regarding the function and evidentiary value of medical reports and expert opinions.

The appellant argues that her right to be heard was violated because the Disability Insurance Office issued its rejection decision of January 15, 2019 before the medical and personal statements announced in the preliminary decision procedure regarding the expert opinion of August 3, 2018 had arrived at the administration. By denying a violation of the right to be heard, the lower court itself violated federal law.

The administration issued a preliminary decision dated August 7, 2018, informing the insured that, based on the expert opinion of August 3, 2018, her usual occupation as a retail specialist was fully reasonable, so she had no claim to a disability pension. The insured lodged an "objection" against the preliminary decision through her legal representative. The Disability Insurance Office set a deadline until October 14, 2018 for the justification of the objection. It extended this deadline with the note "once" until November 14, 2018. On November 5, the insured submitted a 15-page submission with attachments to justify the objection.

With her appeal to the cantonal court, the appellant also submitted a medical report from Dr. med. [C.] and Dr. med. [B.] , specialist in psychiatry and psychotherapy FMH, from the practice [D. AG] , dated January 8, 2019, as well as an undated comment on the expert opinion of August 3, 2018 with attachments, written by herself. The respondent could express its opinion on this, but did not do so. The lower court considered these additional documents in its assessment. Thus, it is established that any violation of the right to be heard in the lower court proceedings would have been remedied. The lower court therefore rightly did not remit the case to the Disability Insurance Office for it to comment on the aforementioned submissions.

In substantive terms, the cantonal court considered that the decision of January 15, 2019 was based essentially on the multidisciplinary SMAB expert opinion of August 3, 2018. A remitted recurrent depressive disorder (ICD-10 F33.4), an adrenogenital syndrome with a currently sufficiently substituted 21-hydroxylase deficiency, and osteopenia had been diagnosed, none of which had any influence on work capacity. The expert opinion was to be accorded full evidentiary value. A psychiatric diagnosis with an influence on work capacity had been plausibly denied in view of the examination findings and the classificatory requirements. Thus, a structured evidentiary procedure was unnecessary. There was no health damage causing disability.

The appellant initially argues that the SMAB expert opinion should not have been relied upon because the expert opinion was not awarded in a consensus-oriented manner. By refusing to provide statistical information on the degrees of work capacity certified in all expert opinions of the psychiatric expert of the SMAB, Dr. med. [E.] , the insured was prevented from asserting a corresponding appearance of bias.

The Disability Insurance Office informed the insured by letter of April 10, 2018 that a medical assessment was necessary to clarify the claim for benefits and that this was planned at the SMAB. It also explained which additional questions would be put to the experts. Finally, it offered the appellant the opportunity to express her views on the planned assessment, the questionnaire, and - if known - the assessing specialists. The insured did not make use of this opportunity. Nor did she do so after the SMAB informed her by letter of May 15, 2018 about the specialists involved in the assessment. Contrary to the submissions in the appeal, the Disability Insurance Office met the requirements placed upon it with the information provided. The respondent sufficiently informed the insured by letter of April 10, 2018 about her rights regarding the expert opinion. It is not apparent what additional grounds of objection would have had to be raised, to what extent a conciliation procedure would have been necessary here, or what procedural rights would have been violated by the administration's approach. Contrary to the representation in the appeal, there is no comprehensive right of refusal or proposal regarding experts according to the case law presented.

The appellant argues that there might have been a ground for recusal in the sense of an appearance of bias. She could not examine this because no statistical information about the work of the expert Dr. med. [E.] had been provided to her. She overlooks the fact that case-independent, general-structural objections according to BGE 139 V 349 E. 5.2.2.1 p. 355 do not constitute grounds for recusal. Even in the event of a strong deviation in the evaluation of the frequency distribution of certified degrees of incapacity for work, it cannot be directly concluded that there is bias on the part of the experts involved in the preparation of the expert opinions. It would first have to be examined whether the deviation could be better explained by other factors. The evidentiary value of any expert tendency to recognize incapacity for work either sparingly or generously is to be assessed in the benefits procedure. In the present case, it is not apparent to what extent the knowledge of the degrees of incapacity for work certified by the psychiatric expert in other cases between 2015 and 2017 could prove a lack of result openness and thus call into question the evidentiary…