[00:00:01] Speaker 01:
Good morning.

[00:00:03] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:05] Speaker 01:
Raquel Busani for the Plaintiff Daily.

[00:00:08] Speaker 01:
The primary issue, as the briefs articulated, was whether the ALJ supported his decision with substantial evidence.

[00:00:14] Speaker 01:
As the Daily consents, he did not.

[00:00:16] Speaker 01:
However, I'd like to focus argument, unless Your Honors would prefer to ask other questions.

[00:00:24] Speaker 01:
But I'd like to focus on three issues that were presented in the briefings.

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one in particular, whether Daly is requesting a higher articulation standard for then clearing convincing for the rejection of subjective symptoms testimony.

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She is not.

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The second one, whether the commissioner conceded that the ALJ mischaracterized and cherry-picked

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evidence by not meaningfully rebutted in the briefs, including the district court briefs.

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We contend that he did.

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And the last, whether the germane reason standard for rejecting the third party evidence still applies in light of the 2017 regulations and we contend

[00:01:03] Speaker 01:
that it does.

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And I'd like to highlight that the reason why Daley contends that these articulation standards apply is because the purpose of these standards, as has been discussed by the Ninth Circuit, is to provide the reviewing courts with adequate information as to the reasons behind the ALJ's decision.

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And I'd like to add that

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These articulation standards also provide the claimants with enough information.

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When you have a decision by an ALJ that doesn't clearly articulate the reasons why certain evidence is rejected, you have more cases that end up in court.

[00:01:40] Speaker 01:
And maybe they end up in court without adequate reasons.

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But unless the plaintiff is aware of what evidence was rejected and why, they're going to want to seek review.

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on the first

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asking the ALJ to weigh evidence separately.

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There's no such request.

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In fact, the ALJ is required to consider evidence of fibromyalgia, which is her overarching condition.

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The ALJ is required to weigh that evidence and the symptoms of fibromyalgia in the totality of the record.

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So the fact that Daly also has a

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You know degenerate disc disease or arthritis of their hands should be considered in light of fibromyalgia which as the courts have recognized including the in the case of rebels fibromyalgia exacerbates other pain and other symptoms so the

[00:02:52] Speaker 01:
What Thaley is asking is not that the ALJ articulate any higher standard than the clear and convincing, but rather that the ALJ articulate clear and convincing reasons.

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We argue that he did not in this case.

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For example, we argue that he consistently mischaracterized and cherry-picked the evidence.

[00:03:13] Speaker 01:
I cite in the briefing various examples where... What does it mean to cherry-pick the evidence?

[00:03:19] Speaker 03:
what, 10,000 pages of record here?

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I mean, you can't ask him to go through every page of evidence, right?

[00:03:26] Speaker 01:
Right, and I completely agree.

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On our part, it's very difficult to go through all the records.

[00:03:33] Speaker 01:
Exactly.

[00:03:34] Speaker 03:
So what do you mean by chart picking the evidence then?

[00:03:36] Speaker 01:
When you're looking at one record, you should look at the entire record.

[00:03:39] Speaker 03:
But it's 10,000 pages.

[00:03:41] Speaker 01:
No, no.

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I don't mean the entire record.

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I'm talking about the visit note.

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So we have various doctor's visits.

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Let's say, for example, and I cite some examples in the briefing.

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If you have a doctor's visit dated, I don't know, October of 2020,

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You should look at that entire visit.

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You shouldn't just pick one page that might say, for example, the patient is not in distress, when the rest of the record explains that she's actually complaining of various pain symptoms, that she has

[00:04:14] Speaker 01:
Um, depression that, you know, I'm giving you, you know, just, yeah, but then that's not relevant.

[00:04:19] Speaker 03:
Like if, if he's analyzing the pain, for example, right.

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It's not relevant whether or not she's feeling depressed.

[00:04:25] Speaker 01:
Right.

[00:04:26] Speaker 03:
So why would he have to go through that evidence when he's talking about pain?

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But he's talking just about pain.

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I'm just giving you an example.

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And that's my point, though.

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You can't say he cherry-picked it, but he talked about the relevant facts.

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But he didn't, in fact.

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And again, I cite in my brief various examples where he cited to no distress.

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First of all, the

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The term no distress is a term of art in medicine.

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It doesn't mean that the person is not experiencing symptoms.

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It simply means that the person is not experiencing symptoms that, for example, require an emergency treatment.

[00:05:03] Speaker 03:
Do you agree that there's evidence in the record where she showed up to a doctor and she said she had no pain?

[00:05:10] Speaker 01:
I don't think there was any evidence in the record that says that she had no pain.

[00:05:16] Speaker 01:
There's evidence in the record where she apparently said she felt well.

[00:05:20] Speaker 03:
There were subjective... But there were times where the pain... We all agree that fibromyalgia waxes and wanes, right?

[00:05:28] Speaker 01:
Right, and yes.

[00:05:29] Speaker 03:
So there's evidence in the record where it waned, right?

[00:05:32] Speaker 01:
Right, right.

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We do not contest that her fibromyalgia

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waxes and wanes.

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She says herself that there's days when she feels better and there's days when she feels worse.

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But then she also said, this is my problem, she said my pain is 24-7, my pain never leaves.

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That's contradicted by the record.

[00:05:49] Speaker 01:
I don't believe it's contradicted by the record.

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Well, we just agree that there was times when her pain waned, right?

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But that doesn't mean that no pain exists.

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Pain is subjective.

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So just because it's not as bad one day doesn't mean it's not present.

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Well, I guess my point would be wouldn't that be basis enough for the ALJ to reject that testimony, though?

[00:06:12] Speaker 01:
Not in light of the fact that the records that he cites to that supposedly say that the pain is, he never says that there's no pain.

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He says that the patient was not in distress.

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Those records show complaints of pain or show complaints of fatigue.

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If he's talking about pain, but he never says, he doesn't say there's evidence of no pain in records.

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He implies based off of her statements or her doctor's writing that she felt well.

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But well, again, this is a subjective statement.

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Somebody feeling well one day, for example, a person that maybe has cancer, they might feel well one day, but they're still experiencing symptoms.

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So we're dealing with a condition that is well known to be subjective in nature, as far, I'm sorry, that has subjective symptoms in nature and that it cannot always be supported by... I guess my problem is there's reason to doubt the statement, though, that my pain is 24-7, my pain never leaves, it's on all the time.

[00:07:10] Speaker 01:
I disagree, respectfully.

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I don't think that the ALJ cited too sufficient evidence in the record that actually shows that she said, I don't have pain today.

[00:07:21] Speaker 01:
The fact that she said that she might have felt well, it does not mean that she did not experience pain.

[00:07:27] Speaker 01:
There's also, I mean, one of the other things that at least the Pellies... She also said she has zero functionality, right?

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Normal functionality.

[00:07:36] Speaker 01:
Again, you have to pay attention to the word zero functionality versus zero normal functionality.

[00:07:41] Speaker 01:
Again, pointing out the subjective nature of activities.

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For her, normal was, and she explains this in prior functional reports, before she became ill, she used to go out with friends.

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She used to go to concerts.

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She was a very active person.

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Despite of obesity and some other symptoms that existed, she was very active.

[00:08:02] Speaker 03:
I'm sorry, what's the distinction you're making, zero functionality versus zero what?

[00:08:06] Speaker 01:
Normal functionality.

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So a person that's expressing zero functionality, it would be reasonable to interpret as a person who's laying down 24-7 and can't do anything ever.

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A person who's experiencing zero normal functionality, it really depends on what normal is for that person.

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So it's subjective in nature.

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For me, my normal day is going to be very different than your normal day, which is very different than the normal day of a person who is perhaps a professional sports player.

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So normal functionality, it's subjective in nature.

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So those statements are not themselves proof that she was contradicting her statements.

[00:08:47] Speaker 03:
It's not proof, but it's evidence that supports ALJ's findings.

[00:08:51] Speaker 01:
I agree.

[00:08:51] Speaker 01:
I disagree.

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I'm sorry.

[00:08:55] Speaker 01:
No, I respectfully disagree on that point.

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I don't think it's sufficient evidence.

[00:09:00] Speaker 01:
And again, when you look at the rest of the record where he took, and again, the record is so, it's 10,000 pages.

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And I refer to various instances in the brief as where he mischaracterizes evidence.

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I noted

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Neither the appellees did not address any of these points in their briefings.

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That's one of the reasons why I'm saying that they conceded these points.

[00:09:25] Speaker 01:
If the ALJ would have at least considered, for example, her subjective testimony regarding the exercise,

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He makes big issue about the fact that she exercises.

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He says that she runs a mile.

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She explains in her testimony she's never run on land.

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Not that she doesn't run on land anymore, but that she never run on land.

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She used to water jog.

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She uses a treadmill to walk.

[00:09:47] Speaker 01:
This is exercise that her doctors have

[00:09:50] Speaker 01:
suggested she engage in.

[00:09:52] Speaker 01:
But we're talking about a person who became disabled in her late 40s.

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She is doing exercises that are... What do you think about the ALJ's point that that's evidence again that she's not disabled if the doctors are recommending that she exercise?

[00:10:05] Speaker 03:
Because if you're truly disabled, then they're going to not say to do that.

[00:10:09] Speaker 01:
No, there is no requirement in the case law that says that a person has to be completely bedridden to be disabled.

[00:10:16] Speaker 01:
Her doctors are telling her you should exercise as much as you can, as much as you can tolerate, because it

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It's helpful.

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And she has agreed that when she does exercises, it helps her.

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But it also fatigues her and says she can't do anything else the rest of the day.

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In her testimony, she explained that she does one activity per day.

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She bathes once every five days, essentially.

[00:10:38] Speaker 01:
If she's going to go do her water exercises, she's going to not do anything else that day.

[00:10:44] Speaker 01:
If she's going to go run errands and have lunch with her friend, which she does, which she tries to do once a week, if not once a month,

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then she's not going to do anything else.

[00:10:51] Speaker 01:
And that's including bathing.

[00:10:54] Speaker 01:
The fact that she said, and the appellees take a big issue with this, she says that she reclines seven hours a day between 8 to 5.

[00:11:01] Speaker 01:
There's nine hours between 8 to 5.

[00:11:03] Speaker 01:
That's perfectly consistent with her testimony that she can only do one activity per day.

[00:11:08] Speaker 01:
Two hours that she's active.

[00:11:10] Speaker 03:
What you're saying makes perfect sense.

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My problem is that what the ALJ also said makes perfect sense.

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And as judges, we're supposed to give deference to the ALJ.

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So I just don't know why we have to.

[00:11:20] Speaker 03:
We're compelled to take your inference versus ALJ's inference.

[00:11:23] Speaker 01:
The ALJ has to provide specific, clear, and convincing reasons.

[00:11:28] Speaker 01:
The only way that his reasons are clear and convincing is if the court ignores her testimony.

[00:11:35] Speaker 01:
He didn't even consider in his determination her subjective testimony, explaining, for example, that she doesn't run.

[00:11:44] Speaker 01:
For example, that she's only capable of activity for seven hours a day.

[00:11:48] Speaker 01:
He doesn't address any of those issues.

[00:11:49] Speaker 01:
He also doesn't address her supporting testimony from her parents.

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He ignores one letter completely.

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He does cite to the third party forums.

[00:12:00] Speaker 01:
But he doesn't provide your main reasons.

[00:12:03] Speaker 01:
It's one of the reasons that I think I'd like to reserve some time for rebuttal.

[00:12:08] Speaker 04:
And I'll give you some time.

[00:12:09] Speaker 04:
I do have a kind of a curveball question for you.

[00:12:11] Speaker 04:
This case has been around for a long time.

[00:12:13] Speaker 04:
Yes, it has.

[00:12:16] Speaker 04:
I'm curious what efforts there have been to mediate this case.

[00:12:21] Speaker 01:
So the first case, almost immediately we filed, and I'm saying the first case before the district court that was eventually remanded, we received an email from counsel right away saying, we'd like to resolve this, do a remand.

[00:12:39] Speaker 01:
We didn't have that experience.

[00:12:42] Speaker 01:
After the initial district, with the second district court filing, we did not receive any contact from counsel.

[00:12:51] Speaker 01:
And then once their decision was made,

[00:12:53] Speaker 01:
affirmed, we haven't had any contact.

[00:12:56] Speaker 01:
There haven't been any meaningful mediation.

[00:12:59] Speaker 04:
Okay, so there hasn't been really any mediation in this case at all?

[00:13:01] Speaker 04:
No, no.

[00:13:02] Speaker 04:
Would you be open to that in this case?

[00:13:04] Speaker 01:
I think our client would definitely be open to that.

[00:13:07] Speaker 01:
This is not necessarily in the record, but her primary concern is that she cannot pay for health care.

[00:13:12] Speaker 04:
And it's all about money.

[00:13:14] Speaker 04:
This is an all about money case that's been up and down and up and down.

[00:13:17] Speaker 04:
Okay, so you would be open to mediation if the court were to order it?

[00:13:20] Speaker 01:
If the court were to order it, that would work.

[00:13:28] Speaker 01:
I disagree that it's all about money.

[00:13:30] Speaker 01:
Again, Ms.

[00:13:31] Speaker 01:
Daley, again, this is not necessarily in the record.

[00:13:33] Speaker 01:
But as she has communicated to me, her primary concern is getting health care.

[00:13:39] Speaker 01:
She has had it.

[00:13:40] Speaker 01:
And you can see this reflected in the record.

[00:13:42] Speaker 01:
She's had to change doctors.

[00:13:43] Speaker 01:
And so her primary concern is Medicare coverage at some point.

[00:13:47] Speaker 04:
Which is money.

[00:13:49] Speaker 04:
So OK, I just want to make sure I understand that because, all right, fair enough.

[00:13:53] Speaker 04:
We'll give you some time for a bottle.

[00:13:54] Speaker 04:
OK, thank you.

[00:13:55] Speaker 04:
Thank you.

[00:14:06] Speaker 00:
Good morning, Your Honors.

[00:14:06] Speaker 00:
Elizabeth Fear for Frank Bisignano, the Commissioner of Social Security.

[00:14:11] Speaker 00:
This record is actually almost 11,000 pages, and we have no opinion of disability in this record, which is a very significant factor in the ALJ's analysis here, particularly when this claimant is alleging very extreme limitations such as zero functionality.

[00:14:30] Speaker 00:
And on page 1650, Your Honor, it does say zero functionality.

[00:14:33] Speaker 00:
It doesn't say normal.

[00:14:35] Speaker 00:
There's another page 6910 that does include normal, but the first one, 1650, just says zero percent functionality.

[00:14:44] Speaker 00:
So she's alleged that.

[00:14:45] Speaker 00:
She's alleged she can't lift more than two pounds.

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She's alleged reclines up to eight hours a day.

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She can only sit upright for 10 minutes at a time.

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She can't remember anything.

[00:14:56] Speaker 00:
And she can't do anything for more than three hours or she'll pass out.

[00:15:00] Speaker 00:
Given those extreme limitations and this massive record, you would expect at some point a doctor would issue an opinion that she has limitations that would be consistent with an inability to work, and that's not here.

[00:15:14] Speaker 00:
Instead, we have two state agency physicians who reviewed the record in 2018 in February and July, I believe.

[00:15:24] Speaker 00:
They found she could perform a range of light work.

[00:15:27] Speaker 00:
Um, and then because she had applied again, um, subsequent to the district court first remand, um, there's another, uh, state agency physician who finds in 2022 that she's still capable of light work.

[00:15:40] Speaker 00:
Then there's two, um, state agency physicians who look at her mental functioning and find one finds she doesn't have a severe impairment.

[00:15:47] Speaker 00:
And the other finds that she can, um, engage in simple activities the same way as the LJ fun in the RFC.

[00:15:53] Speaker 00:
The RFC is very detailed.

[00:15:56] Speaker 00:
From pages 2090 in the record through 2094, the ALJ goes through all the limitations in the RFC and how they're connected to her severe impairments.

[00:16:06] Speaker 00:
He also finds that her subjective allegations are not fully persuasive for various reasons.

[00:16:14] Speaker 00:
Her treatment history is stable throughout this.

[00:16:17] Speaker 00:
And a lot of times you have fibromyalgia cases, there's a lot of fluctuation in the treatment.

[00:16:21] Speaker 00:
Here it's relatively stable.

[00:16:24] Speaker 00:
You have inconsistencies, and I think Your Honor's pointed out, especially Judge Bumate, of the many inconsistencies in this record where she's saying she can't function and yet she is exercising.

[00:16:35] Speaker 00:
Her physicians not only didn't find any disability, they recommended exercise.

[00:16:40] Speaker 00:
If she was as limited medically as she's claiming, they wouldn't do that.

[00:16:46] Speaker 00:
Clement's activities, the ALJ relied on as inconsistent with their subjective allegations, and also the objective findings.

[00:16:54] Speaker 00:
For instance, as late as June 2022, and this is on page 6910 again, she has no atrophy or muscle wasting.

[00:17:04] Speaker 00:
This court has found in the past that that lack of atrophy and muscle wasting is

[00:17:11] Speaker 00:
a significant reason for an ALJ to find non-disability when a claimant is alleging the kind of extreme pain that she is here.

[00:17:18] Speaker 00:
So in terms of everything I just said, the ALJ's decision here is supported by substantial evidence.

[00:17:24] Speaker 00:
And I am happy to answer any other questions.

[00:17:27] Speaker 03:
Yeah, the one question I have is, how often does it happen that an ALJ will find disability if no doctor has opined on disability?

[00:17:35] Speaker 00:
You know, we don't usually see the cases where the ALJs find disability.

[00:17:40] Speaker 00:
I really can't speak to that.

[00:17:43] Speaker 03:
It's not precluded though, right?

[00:17:44] Speaker 03:
Correct.

[00:17:45] Speaker 02:
Correct.

[00:17:46] Speaker 00:
Yes.

[00:17:48] Speaker 02:
But when you talk about no opinion, do you mean there's no expert opinion presented in the context of this ALJ adjudication?

[00:17:59] Speaker 00:
I mean that this record doesn't contain, even though there's many treating sources, there's no- Why else would it contain such an opinion?

[00:18:09] Speaker 02:
I mean, I haven't, God knows I've seen enough of these cases, and it is true that in my observation, a claimant will ordinarily present opinion testimony favoring the claim, favoring a conclusion that the claimant was disabled, but I don't really see that in the

[00:18:28] Speaker 02:
background record.

[00:18:29] Speaker 02:
It's not like ordinarily physicians are opining on whether somebody is disabled, particularly under the social security standards.

[00:18:38] Speaker 02:
So basically what I think I'm hearing from you is that the presentation made by claimant here before the ALJ was missing this piece that ordinarily is found in most cases, but I'm not sure what else to draw from that.

[00:18:52] Speaker 00:
Well, Your Honor, I wouldn't say a piece is missing.

[00:18:55] Speaker 00:
And ALJ can find disability without that kind of evidence.

[00:18:58] Speaker 00:
But I would point to, there's three instances in this record where claimant asked a doctor for disability paperwork, and the doctors expressly said no.

[00:19:07] Speaker 00:
So that's on page 1611, and that's in July 2019.

[00:19:13] Speaker 00:
On page 1653, that was in May 2019, and on page 6385,

[00:19:19] Speaker 00:
which was in February, 2020.

[00:19:21] Speaker 02:
So I think that it won't be surprised that those references don't actually jump up and mean something to me.

[00:19:27] Speaker 02:
And what context was the request made for the, uh, the opinion of disability?

[00:19:32] Speaker 00:
Um, I, for the, um, July, 2019, the claimant was, um, wanting disability paperwork based on fibromyalgia and obstructive sleep apnea.

[00:19:43] Speaker 02:
So disability under what standard?

[00:19:47] Speaker 00:
Social Security.

[00:19:49] Speaker 00:
It's in the context of her application process.

[00:19:52] Speaker 00:
And so the fact that these doctors said no is indicative of the ALD.

[00:19:59] Speaker 03:
Are they her doctors or their state doctors?

[00:20:01] Speaker 00:
Yes, they're her doctors.

[00:20:02] Speaker 03:
And her doctors said no?

[00:20:03] Speaker 00:
Yes.

[00:20:04] Speaker 02:
So what was the page reference for the one you just talked about?

[00:20:07] Speaker 00:
1611.

[00:20:10] Speaker 00:
OK.

[00:20:15] Speaker 00:
And then if you need the other ones, I have those as well.

[00:20:18] Speaker 02:
I just wanted to get an idea what I was looking at.

[00:20:21] Speaker 00:
OK.

[00:20:24] Speaker 00:
So this ALG's decision is very detailed.

[00:20:27] Speaker 00:
You can tell he's familiar with the record.

[00:20:29] Speaker 00:
He's familiar with the treatment history.

[00:20:31] Speaker 00:
He might not have cited everything that he could have to support all of his findings.

[00:20:36] Speaker 00:
We have, in our brief on page 39, notes 6 through 10, have a lot of extra citations that support the findings, particularly when she's

[00:20:45] Speaker 00:
not complaining of myelogists, the doctors.

[00:20:49] Speaker 00:
Even when she's complaining of these extreme limitations, the doctors still find no acute distress.

[00:20:55] Speaker 00:
This court has, in several unpublished cases, one recently last month, has found that an ALJ can rely on the findings of no acute distress, particularly when the claimant is alleging such extreme limitations as she is here.

[00:21:12] Speaker 00:
If I may, the lay witness, go ahead.

[00:21:16] Speaker 02:
I'm looking at 1611.

[00:21:17] Speaker 02:
It made reference to notes did not feel comfortable filling out disability paperwork for sleep apnea.

[00:21:23] Speaker 02:
Discuss this with patient.

[00:21:25] Speaker 02:
Is that what you're referring to?

[00:21:27] Speaker 00:
Yes.

[00:21:27] Speaker 00:
And I believe it also has fibromyalgia on that same page.

[00:21:30] Speaker 02:
Well, it does, but it doesn't say anything about, she said, discuss with patient referral to occupational therapy to evaluate how functional she is for filling out disability form.

[00:21:42] Speaker 02:
but doesn't say that the doctor wasn't prepared to make such a referral or opinion.

[00:21:50] Speaker 02:
So I'm not sure how compelling that is as evidence.

[00:21:54] Speaker 02:
I mean, there does not appear to be a dispute.

[00:21:56] Speaker 02:
She was in fact diagnosed with fibromyalgia applying the, I've now forgotten the number of points, eight point or something under the social security rule.

[00:22:08] Speaker 02:
So the question is how,

[00:22:12] Speaker 02:
disabling the pain is during the waxing periods.

[00:22:20] Speaker 02:
And I'm not sure I understand why it is the ALJ can fairly rely upon things such as what she drives sometimes to demonstrate that in fact she doesn't have disabling pain at other times.

[00:22:38] Speaker 00:
Well, Your Honor, I don't think this record supports

[00:22:43] Speaker 00:
a contention that her symptoms wax and wane.

[00:22:47] Speaker 00:
For instance, she claims, as was brought up on my opponent's initial presentation, that she has repeatedly said that she has no good days.

[00:22:58] Speaker 00:
Page 140, she testified to that.

[00:23:01] Speaker 00:
Page 742, she says her days are always painful.

[00:23:03] Speaker 02:
So do you translate to me, that mean no bad days?

[00:23:07] Speaker 00:
I think that she's testifying her pain is always relatively the same.

[00:23:11] Speaker 00:
So I don't think this record supports a classic waxing and waning situation for fibromyalgia.

[00:23:17] Speaker 00:
And I think the ALJ has explained how the stability of her treatment supports that.

[00:23:23] Speaker 00:
She's alleging the extreme situation where she is 24-7 in such pain that she can't function, that she needs to

[00:23:36] Speaker 00:
You know recline for eight hours a day that she can't lift more than two pounds.

[00:23:40] Speaker 00:
That's That's inconsistent with what this record shows and the fact that doctors were not willing to fill out disability paperwork in light of that kind of extreme allegation is Persuasive evidence statement than the page.

[00:23:57] Speaker 02:
We looked at supports the doctor said he's feeling out disability paperwork, so I

[00:24:03] Speaker 02:
So where is that evidence that the doctor said no to filling out disability forms for fibromyalgia?

[00:24:12] Speaker 00:
Well, that is her main allegation of disability.

[00:24:16] Speaker 02:
So that one particular says... We just read 1611 and it didn't quite say that.

[00:24:21] Speaker 02:
So I'm looking for what page does quite say that.

[00:24:31] Speaker 00:
Okay, 1653.

[00:24:33] Speaker 00:
She's here today for an initial evaluation of her pain complaints that is related to fibromyalgia.

[00:24:41] Speaker 00:
And then that doctor says, I politely informed her that our practice does not fill out disability paperwork.

[00:24:51] Speaker 00:
She would like to continue with the workup today.

[00:24:53] Speaker 00:
That's page 1653.

[00:24:54] Speaker 02:
Well, wait, you just said the practice doesn't fill it out.

[00:24:59] Speaker 02:
That doesn't sound to me like a refusal because you're not disabled.

[00:25:03] Speaker 00:
Okay, and then page 6385.

[00:25:17] Speaker 00:
She's requesting our office to fill out disability paperwork.

[00:25:20] Speaker 00:
I asked her to bring a copy of paperwork for her next visit.

[00:25:23] Speaker 00:
Alternatively, she may email this to me.

[00:25:26] Speaker 00:
Inform the patient I will review her paperwork and determine if I am able to fill out such documentation.

[00:25:33] Speaker 00:
At this point, it wasn't

[00:25:38] Speaker 00:
Viable so I can understand your point.

[00:25:42] Speaker 02:
It doesn't say it wasn't viable.

[00:25:43] Speaker 02:
He's asked her to bring in the paperwork.

[00:25:46] Speaker 02:
I will grant that you can infer from that that she probably never did but it doesn't quite support the statements you've been giving me that

[00:25:56] Speaker 02:
Doctors won't fill them out.

[00:25:58] Speaker 00:
Well, they never did.

[00:25:59] Speaker 00:
They made a judgment she's not disabled.

[00:26:02] Speaker 00:
She continued to treat with these sources, and they never followed up and said, OK, now I've examined you many times, and I will fill out that paperwork.

[00:26:11] Speaker 00:
I think that's a valid inference from what I've been saying about those doctors' activities and actions in that case.

[00:26:18] Speaker 00:
So Your Honor, I would like to address the non-medical evidence.

[00:26:25] Speaker 00:
Judge Bumatea's concurrence in Hudnall states, we believe that the revised regulations have abrogated that germane reason standard.

[00:26:35] Speaker 00:
It is under the revised regulations, as is very clear in the Federal Register, it's discretionary whether an ALJ wants to discuss non-medical evidence such as the claimants' family members here.

[00:26:46] Speaker 00:
This ALJ did.

[00:26:48] Speaker 00:
And he provided reasons for not finding it persuasive, which is what the comparison between 1520 and the medical opinions and 1527 under the old standard, the way it addresses non-medical evidence that previously NALJ generally might have had to discuss it.

[00:27:06] Speaker 00:
But now they don't.

[00:27:07] Speaker 00:
They don't have any obligation.

[00:27:08] Speaker 03:
Is that still a live issue?

[00:27:09] Speaker 03:
No one has decided one way or the other?

[00:27:10] Speaker 00:
I just wanted to put that plug in there because your concurrence is

[00:27:15] Speaker 00:
Fantastic.

[00:27:16] Speaker 00:
So we would like that to become the law.

[00:27:21] Speaker 02:
But it was a concurrence, right?

[00:27:24] Speaker 00:
Yes.

[00:27:24] Speaker 00:
And it's unpublished.

[00:27:25] Speaker 00:
I understand.

[00:27:26] Speaker 00:
I understand.

[00:27:27] Speaker 00:
But the reasoning in it is valid in the comparison between 1520C sub D and 1527 sub F. So I am happy to answer any other questions.

[00:27:37] Speaker 04:
So I'm going to ask the same question I asked opposing counsel.

[00:27:40] Speaker 04:
This case has been around for a long, long time.

[00:27:43] Speaker 04:
Not that long.

[00:27:44] Speaker 04:
Well, I think five years was a testimony.

[00:27:47] Speaker 04:
We have seen lots longer than that.

[00:27:49] Speaker 04:
That doesn't mean it's not a long time.

[00:27:52] Speaker 04:
The fact that there are some that are even longer than this one doesn't mean this one hasn't been around.

[00:27:56] Speaker 04:
Five years is longer than the Civil War.

[00:27:58] Speaker 04:
So in terms of potential mediation in this case, I want to hear what the government's position is.

[00:28:04] Speaker 00:
Well, Your Honor, mediation for us is we either

[00:28:10] Speaker 00:
We are defending ALJ's decision because it's supported by substantial evidence, or we don't.

[00:28:14] Speaker 00:
And there's no in-between here.

[00:28:17] Speaker 00:
The first time we did find that the ALJ didn't adequately address fibromyalgia.

[00:28:21] Speaker 00:
This time around, he did.

[00:28:22] Speaker 00:
So we are not open to any compromise here.

[00:28:27] Speaker 00:
We want the court to uphold the ALJ's decision.

[00:28:30] Speaker 00:
Thank you.

[00:28:42] Speaker 01:
Just a few points to make.

[00:28:45] Speaker 01:
It's in the position that the appellee, the commissioners, and the ALJ simply do not understand fibromyalgia, and they're ignoring the cases on point with regard to how that evidence of fibromyalgia and related symptoms are to be considered.

[00:29:00] Speaker 01:
I'll note that, as counsel pointed out, there was no muscle or atrophy or muscle wasting.

[00:29:09] Speaker 01:
And that was one of the points highlighted by the ALJ as to why her disability was not supported.

[00:29:17] Speaker 01:
There's no requirement that, especially in the case of fibromyalgia, that a claimant show or suffer from muscle wasting.

[00:29:26] Speaker 01:
Muscle wasting is something that you see in conditions, perhaps, well, not in fibromyalgia necessarily.

[00:29:35] Speaker 01:
The fact that he said that there would be a secondary effect is just, in my opinion, in our opinion, a way to backdoor the objective evidence requirement.

[00:29:44] Speaker 01:
So, just as articulated in our briefs, the ALJ simply did not understand fibromyalgia.

[00:29:52] Speaker 03:
Can I ask, your client did try to seek one of her doctors to support a disability finding under fibromyalgia, right?

[00:30:03] Speaker 01:
For her disability overall, it's not necessarily for fibromyalgia.

[00:30:07] Speaker 03:
Why do you think no doctor has agreed to it?

[00:30:09] Speaker 01:
Well, that's not necessarily correct.

[00:30:12] Speaker 01:
I represented my client in her aristoclace as well, and she obtained forms supporting disability in that case.

[00:30:20] Speaker 01:
I don't know what happened with regard to why doctors... Is that in our record?

[00:30:25] Speaker 03:
Why is that not in our record?

[00:30:26] Speaker 01:
As far as the forms for... The ERISA?

[00:30:29] Speaker 01:
They were not, I guess.

[00:30:31] Speaker 01:
They didn't make it in if they're not in there.

[00:30:33] Speaker 01:
But actually, there is evidence in there, and I think they just simply disregarded it as far as her being awarded ERISA benefits.

[00:30:43] Speaker 01:
But as far as the forms.

[00:30:44] Speaker 03:
Different standard.

[00:30:45] Speaker 01:
Different standard, right.

[00:30:46] Speaker 01:
And we're not saying that because she was awarded benefits in ERISA that she's entitled to benefits here.

[00:30:51] Speaker 01:
What we're saying is that the ALJ simply did not consider the evidence in light of her fibromyalgia as the Ninth Circuit has articulated.

[00:30:58] Speaker 01:
And as the regulations require ALJs to consider, I think I ran out of time.

[00:31:04] Speaker 04:
Finish your point.

[00:31:05] Speaker 01:
OK.

[00:31:05] Speaker 01:
Yeah, I have a couple of points.

[00:31:10] Speaker 01:
testimony as having good or bad days.

[00:31:14] Speaker 01:
There is evidence in the record that she in her testimony that shows that she had waxing and waning symptoms.

[00:31:21] Speaker 01:
The fact that her first hearing versus her second hearing show expressed that her symptoms had

[00:31:27] Speaker 01:
Her first hearing, she said she had mostly bad days.

[00:31:30] Speaker 01:
In her second hearing, she said she had good and bad days.

[00:31:32] Speaker 01:
That's evidence of waxing and waning.

[00:31:34] Speaker 01:
Again, this is a fibro case.

[00:31:36] Speaker 01:
We did have points as to articulation standards.

[00:31:39] Speaker 01:
Unless the court wants us to go into those issues, then.

[00:31:42] Speaker 01:
I think the evidence in the record is pretty clear that the ALJ simply

[00:31:47] Speaker 01:
cherry pick the evidence mischaracterized not only the evidence but the testimony and did not support its decision with clear and convincing reasons or germane reasons for dismissing or rejecting third party evidence.

[00:32:01] Speaker 04:
Thank you very much counsel.

[00:32:02] Speaker 04:
Thanks to both of you for your briefing and argument in this case.

[00:32:04] Speaker 04:
This matter is submitted.