[00:00:00] Speaker 01:
May it please the court?

[00:00:03] Speaker 01:
This is a very simple situation and basically my client has had PTSD because of her 30 concussions.

[00:00:13] Speaker 01:
She has a series of impairments which I could go on but the basic issue is that she never received, the ALJ did not even review the full record of her brain injury center and then the

[00:00:29] Speaker 01:
then the dismiss the case at step two, which is a de minimis finding and which comes under this court and the social security regulations have said only frivolous cases are dismissed at step two.

[00:00:48] Speaker 01:
So they're really Glandon versus Chikazi,

[00:00:52] Speaker 01:
covers this, I'm going to reserve any questions for everything for rebuttal because I really don't see any conflict here.

[00:01:04] Speaker 01:
The regulations cover this.

[00:01:07] Speaker 04:
One of your arguments, as I understand it, is that the ALJ erred in failing to consider the combined effects of the different impairments.

[00:01:19] Speaker 04:
But the ALJ said a number of times

[00:01:22] Speaker 04:
that he had considered them singly and in combination.

[00:01:25] Speaker 04:
So what more do you think that he had to say?

[00:01:28] Speaker 01:
So he should have gone on, he dismissed the case.

[00:01:33] Speaker 01:
He should have gone on and gone to step three and determined whether there was a functional disability because you could have disabilities but yet be able to work.

[00:01:43] Speaker 01:
So you go through that review and then you see if the medical vocational profiles cover it and then

[00:01:51] Speaker 01:
The commissioner has the burden of showing there's a competitive number of jobs that could be worked with these impairments.

[00:01:57] Speaker 01:
So if you cut it off saying, oh, frivolous, then you don't get the review of that.

[00:02:03] Speaker 01:
And so although we would like to think that maybe he addressed the combination, it doesn't matter because if you don't have an RFC, if you don't have a residual functional capacity and you don't do the whole analysis,

[00:02:20] Speaker 02:
You don't, the LGA doesn't, or the client... There's no basis for explaining why it's, she's, in combination, she's not disabled.

[00:02:30] Speaker 01:
If you don't go on to step three, is that... Well, right, because there's a mental issue.

[00:02:37] Speaker 01:
In 1985, the Disability Act made sure that the Commissioner didn't just walk over people with mental instability because that kind of functional is one kind and physical is another.

[00:02:49] Speaker 01:
And so there's a whole set of protections in the different statutes for different kinds of problems.

[00:02:55] Speaker 01:
For instance, mentally, my client doesn't have

[00:02:58] Speaker 01:
she's got memory gap because she's got a slow brain functioning because of all those concussions.

[00:03:04] Speaker 01:
And that would make a difference in whether she could work.

[00:03:08] Speaker 01:
So the residual functional capacity might be, if the ALJ had gone on, would say

[00:03:14] Speaker 01:
She could work jobs that required very little memory.

[00:03:19] Speaker 01:
And then the commissioner would have to come back and say, well, there are these jobs.

[00:03:23] Speaker 01:
There's all these jobs.

[00:03:25] Speaker 01:
Or there aren't jobs.

[00:03:26] Speaker 01:
So that's the... What was her prior work?

[00:03:29] Speaker 01:
She, she had a, she, I think she was a waitress.

[00:03:37] Speaker 01:
But her price.

[00:03:37] Speaker 02:
It says she was a merchandiser or something like that.

[00:03:39] Speaker 02:
I don't know what that is.

[00:03:40] Speaker 01:
Right.

[00:03:41] Speaker 01:
Well, merchandise I think that categories anybody who works in retail or, and we didn't even get that far as to what the, what the vocational expert would say she did work at.

[00:03:54] Speaker 01:
The problem was is that she,

[00:03:56] Speaker 01:
was in an abusive relationship.

[00:03:57] Speaker 01:
She had so many concussions and then she got in an accident on top of it.

[00:04:01] Speaker 01:
So she hasn't worked for a long time and it wouldn't only last five years count towards the past relevant work.

[00:04:11] Speaker 01:
So there really isn't... There isn't any.

[00:04:15] Speaker 01:
No past relevant work.

[00:04:16] Speaker 01:
And for her, she's very struggling.

[00:04:20] Speaker 01:
If you read the hearing, it's she's struggling to even understand what's being asked of her.

[00:04:25] Speaker 01:
So this appears to be, it's just a mistake.

[00:04:31] Speaker 01:
And I'd be glad to answer any, Glandon covers this, makes a beautiful discussion of exactly all the different regulations.

[00:04:41] Speaker 01:
Social Security's 8528 has,

[00:04:45] Speaker 01:
says that the combination of non-severe impairments is more than a de minimis.

[00:04:51] Speaker 01:
So that means that pretty much the only kind of case that you would just not even cover would be something where someone maybe

[00:05:02] Speaker 01:
They just thought they'd apply for Social Security, and they came in, and that's what happened.

[00:05:07] Speaker 01:
So that's my understanding.

[00:05:11] Speaker 04:
Can you address the, so the ALJ rejected Ms.

[00:05:16] Speaker 04:
Combest's subjective symptom testimony as inconsistent with the objective medical evidence, and you mentioned that in your brief, but

[00:05:27] Speaker 04:
It wasn't clear to me that there was really a developed argument that that aspect of the ALJ's decision was erroneous.

[00:05:33] Speaker 04:
So what's your view on that issue?

[00:05:37] Speaker 01:
The issue is always difficult because she's got brain trauma.

[00:05:39] Speaker 01:
But what she's saying is that I had brain trauma.

[00:05:43] Speaker 01:
I go to this to Dr. Cardenas.

[00:05:48] Speaker 01:
And what she's saying is in the record.

[00:05:51] Speaker 01:
But those records weren't even reviewed.

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So as far as her subjective statements, she's saying, I've been treated, I have these problems, and that is

[00:06:03] Speaker 01:
That's valid.

[00:06:05] Speaker 01:
And so for the ALJ to dismiss it and just say, well, she's not credible, he has to show, or she has to show, well, look, she said she has brain trauma here.

[00:06:15] Speaker 01:
But really, this doctor said she's been climbing mountains.

[00:06:20] Speaker 01:
But that didn't happen here.

[00:06:22] Speaker 01:
This isn't a very complex case.

[00:06:28] Speaker 04:
She has such problems and is it your view that you have preserved a challenge to that aspect of the ALJ's decision?

[00:06:37] Speaker 01:
Well, I did okay, so the ALJ Didn't do any analysis.

[00:06:42] Speaker 01:
He only did to step two so we're just left with somebody who you know like Brief writer who who put that in but his decision doesn't doesn't analyze any of that

[00:06:55] Speaker 04:
Right, I guess my point is that that's a critique of the ALJ's decision, but is that a critique that you have preserved for our and presented to us?

[00:07:06] Speaker 01:
Yes, subjective statements, but I really do feel that so far the fact that it stopped at step two is very important here.

[00:07:20] Speaker 04:
Do you want to reserve the rest of your time?

[00:07:22] Speaker 01:
Yes, thank you.

[00:07:25] Speaker 04:
Ms.

[00:07:27] Speaker 04:
Bond, welcome back.

[00:07:28] Speaker 00:
Thank you.

[00:07:29] Speaker 00:
Good morning.

[00:07:30] Speaker 00:
My name is Shea Bond on behalf of the Acting Commissioner of Social Security.

[00:07:35] Speaker 00:
We have a very different interpretation of this record from claimant, especially since she's leap, counsel today is leapfrogging past step two and talking about step three in RFC.

[00:07:45] Speaker 00:
We don't get there on this record.

[00:07:48] Speaker 00:
And there was ample evidence in this record and cited in the ALJ's decision explaining why the claimant did not meet the de minimis standard.

[00:07:57] Speaker 00:
We have seven medical sources treating, examining, and reviewing doctors who described her conditions as mild.

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They actively assessed no mental or physical limitations.

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Or they found specifically that she did not have any severe physical or mental impairments at step two.

[00:08:18] Speaker 00:
And the ALJ's decision is quite thorough.

[00:08:22] Speaker 00:
The ALJ goes through all of her impairments, and I would like to stress that I think contrary to my colleagues' representation, just the sheer number of diagnosed impairments doesn't get you past the threshold.

[00:08:35] Speaker 00:
It might show that you have medically determinable impairments, but those impairments either individually or collectively in combination must show that you have a condition that significantly limits your ability to do basic work activities, and we just don't have that on this record.

[00:08:50] Speaker 00:
And getting back to the thoroughness of the ALJ's decision, I disagree with my colleague that it's just unexplained.

[00:08:56] Speaker 00:
You have, again, very detailed analysis of what the evidence showed.

[00:09:00] Speaker 00:
You have pinpoint sites to different exhibits in the record.

[00:09:04] Speaker 00:
You have an analysis my colleague brought up about the brain injury.

[00:09:09] Speaker 00:
I mean, the ALJ discusses that and says there was the allegation

[00:09:13] Speaker 00:
But we have, you know, the consultative doctor who assessed with her with a mental status examination and said that she had no cognitive impairment.

[00:09:24] Speaker 00:
Dr. Cardenas at the Biro clinic, which is for concussions,

[00:09:29] Speaker 00:
evaluated the evidence, which included the EEG testing, the MRI testing, and his clinical evaluation of the claimant, and said it was only a mild condition.

[00:09:40] Speaker 00:
The fibromyalgia, Dr. Koonsman, who elicited the tender points, said that there was really no impact on her daily activities, and that was coming from claimant herself who said that, and then said that she had no limitations.

[00:09:53] Speaker 02:
She had fibromyalgia, and she had mild brain difficulties.

[00:09:59] Speaker 02:
So it's not as if there was nothing wrong with her.

[00:10:03] Speaker 02:
I don't see how that meets.

[00:10:05] Speaker 02:
How does that meet?

[00:10:07] Speaker 02:
Do you disagree that at step two it has to be virtually frivolous?

[00:10:13] Speaker 00:
Well, that is the standard that this court has said, and it's our position that in relation to the threshold requirements of step two, it would meet the frivolous standard.

[00:10:25] Speaker 00:
And again, it's not just the number of impairments that the claimant has, it's the impact they have on her ability to do the basic work activities.

[00:10:33] Speaker 00:
And yes, it's a mild cognitive impairment, and yes, she does have fibromyalgia.

[00:10:37] Speaker 00:
But the doctors who examined her or treated her either said she had no limitation or it was very mild.

[00:10:44] Speaker 00:
So we have seven medical professionals, again, who treated, examined, and reviewed this record and said that she did not have significant impairments.

[00:10:54] Speaker 00:
And that would pass the step two threshold.

[00:10:57] Speaker 00:
So the discussion today about what could have happened at step three or at the RFC level, that's premature because we just don't get past that threshold level.

[00:11:06] Speaker 00:
And I would also point out that it is our position that the claimant did not adequately preserve or challenge the ALJ's evaluation of her subjective statements that was not preserved.

[00:11:16] Speaker 00:
And the ALJ's decision, again, I disagree with my colleague, it's very detailed.

[00:11:21] Speaker 00:
It identifies the evidence in support of the conclusions here.

[00:11:25] Speaker 00:
And, you know, these step two cases are more rare, obviously.

[00:11:30] Speaker 00:
I agree.

[00:11:31] Speaker 00:
But to me, this is an example of a case.

[00:11:35] Speaker 00:
My colleague cites Glandon.

[00:11:37] Speaker 00:
But Glandon specifically states that a claim is properly denied at step two if there is unambiguous records showing only minimal limitations.

[00:11:44] Speaker 00:
And we have that record here.

[00:11:46] Speaker 02:
What's the strongest case where we've upheld a step two denial?

[00:11:52] Speaker 00:
Well, Ukolov has upheld us.

[00:11:56] Speaker 00:
But in that case, it's a bit different, because there really wasn't much objective evidence supporting the claimant's claim.

[00:12:03] Speaker 00:
We have Glandon, where the claimant there had, I think, four surgeries, like two spinal surgeries, had surgery on his wrist.

[00:12:11] Speaker 00:
He had necrosis, and he had a broken bone, and had to have a screw inserted.

[00:12:15] Speaker 00:
And then I think there were additional problems

[00:12:18] Speaker 00:
that he had and then the ALJ because he had been in prison and then when he came out he didn't have access to medical care.

[00:12:26] Speaker 00:
This court held that the ALJ had misinterpreted the record against him to say, well, you didn't seek medical care because your impairments weren't that severe.

[00:12:33] Speaker 00:
Really, it was he just didn't have access to care.

[00:12:36] Speaker 00:
So that's like on one end is Glandon and then the other end is Ukulov.

[00:12:39] Speaker 00:
I would say this falls in between.

[00:12:41] Speaker 00:
But this would be an example of a record where we still have, yes, there's evidence of impairment.

[00:12:47] Speaker 00:
And the ALJ absolutely found that.

[00:12:49] Speaker 00:
We have medical determinable impairments.

[00:12:52] Speaker 00:
But they just don't cross that step two threshold.

[00:12:55] Speaker 04:
Can I ask you to go back a moment to the subjective symptom testimony?

[00:13:00] Speaker 04:
I mean, so there is a section in her opening brief entitled, the ALJ did not provide clear and convincing reasons not to not find Ms.

[00:13:07] Speaker 04:
Combest credible.

[00:13:09] Speaker 04:
And then in that section, she says, Combest's subjective complaints are consistent with the objective medical evidence.

[00:13:17] Speaker 04:
So why is that not enough to preserve the argument?

[00:13:21] Speaker 00:
Because it's not actually challenging the details of the ALJ's decision.

[00:13:26] Speaker 00:
I mean, to me, that's more of an alternative opinion about what the record showed and just her view of what the ALJ should have reached a different conclusion.

[00:13:35] Speaker 00:
But it's not attacking any of the specific rationale.

[00:13:38] Speaker 00:
And so you have the ALJ, again, going through, again, very detailed paragraphs, not only addressing each impairment, but how they interact with one another, which goes to the combination of impairments at step two.

[00:13:49] Speaker 00:
And so the ALJ was pointing out,

[00:13:51] Speaker 00:
For example, the claimant had initially said that she, I think it was telling Dr. Webster that she had no brain injury, like she had no cognitive issues.

[00:14:00] Speaker 00:
And then later on, she's telling Dr. Cardenas, I was, you know, had 30 traumatic brain injuries and I was hit in the head and I lost like three liters of blood.

[00:14:09] Speaker 00:
I mean, it was just this very extreme different statements that she had presented to two different providers and that's something that the ALJ identified.

[00:14:19] Speaker 00:
So, counsel's not, my colleague is not,

[00:14:21] Speaker 00:
Grappling with those inconsistencies actually explaining.

[00:14:25] Speaker 00:
Why was it?

[00:14:26] Speaker 00:
Why wasn't the LJ entitled to identify as an as an inconsistency when she really is saying that I Feel that a lot of these problems were related to you know the fact that she had the brain injury um

[00:14:37] Speaker 00:
So, and then her activities were inconsistent.

[00:14:40] Speaker 00:
We have just what the objective evidence showed in terms of, say, what she's alleging about mental dysfunction.

[00:14:48] Speaker 00:
You know, the, again, the mental, many mental status examinations show that she didn't have any kind of cognitive problems.

[00:14:56] Speaker 00:
The ELJ points all of this out as running contrary to the allegations that she made.

[00:15:00] Speaker 00:
And so, counsel hasn't

[00:15:01] Speaker 00:
grappled with that sufficiently in the brief.

[00:15:08] Speaker 03:
But the question is did she preserve it?

[00:15:11] Speaker 03:
Your argument is the arguments that you made were insufficient, but she did raise it in the brief.

[00:15:19] Speaker 00:
I mean, it's raised briefly, but I think this court's precedent says that even a really deficiently raised argument can be deemed waived, because it's raised, but it's not sufficiently explained.

[00:15:30] Speaker 00:
So this court's precedent does attach a waiver element to that.

[00:15:34] Speaker 00:
So I think the court could find it's waived.

[00:15:38] Speaker 03:
So would you address the combination issue?

[00:15:40] Speaker 03:
The ALJ didn't discuss combination in a separate section.

[00:15:45] Speaker 03:
He said, or the ALJ said,

[00:15:48] Speaker 03:
I've considered all of these individually in a combination.

[00:15:53] Speaker 03:
Why is that enough?

[00:15:54] Speaker 00:
Well, it wasn't just one blanket statement.

[00:15:56] Speaker 00:
The ALJ talks about that throughout the decision.

[00:15:59] Speaker 00:
He says that throughout the decision.

[00:16:03] Speaker 00:
But again, if you look to certain pages of the ALJ's decision, it does talk about how these impairments do interact with one another.

[00:16:11] Speaker 00:
Let's see.

[00:16:14] Speaker 00:
You know, talking about, say, the major depressive disorder and post-traumatic stress disorder considered singly and in combination do not cause more than a minimal effect and then goes forth to explain.

[00:16:26] Speaker 00:
You know, talking about, I'm sorry, and that's on page 110 of the record.

[00:16:31] Speaker 00:
certified administrative record.

[00:16:34] Speaker 00:
I think the LJ talks about also the fibromyalgia in terms of other impairments as well because she was alleging other issues with her dexterity and being able to walk or stand.

[00:16:47] Speaker 00:
And the LJ talks about, this is on 107 of the record, talking about how she had the cellulitis, the sepsis, and acute kidney injury that didn't meet the 12-month duration requirement.

[00:17:00] Speaker 00:
in combination with the headaches and the migraines that she argued, and that's on 107.

[00:17:04] Speaker 00:
So I think this record, sorry, this ALJ's decision shows not only was the statement made that the ALJ was considering this in combination, but the ALJ actively considered the evidence and the impairments in combination in finding that she did not meet the threshold requirement at step two.

[00:17:23] Speaker 00:
Thank you very much.

[00:17:24] Speaker 00:
We ask that you affirm.

[00:17:31] Speaker 01:
Rebuttal?

[00:17:42] Speaker 01:
Your honors, I think the commissioner is confused as to the sequential steps.

[00:17:50] Speaker 01:
She's basically conceded that there are a combination of impairments.

[00:17:55] Speaker 01:
And the issue here would be a case that had no impairments should be waived.

[00:18:01] Speaker 01:
medically-determinal impairment or a non-severe impairment just means that it didn't meet the adult listing, okay?

[00:18:10] Speaker 01:
So, I mean, there's two, it's a very, as you realize, it's a very complicated structure that's supposed to pick up any kind of little problem.

[00:18:18] Speaker 01:
And this would be a good example because the real issue here is if you're going to deal with, without even the inability to stand, and as the commissioner has conceded,

[00:18:32] Speaker 01:
and problems with your hands being able to carry things.

[00:18:35] Speaker 01:
If you're just going to be dealing with your brain injury, that's going to be something you need to discuss because how could that person get to work and persist?

[00:18:44] Speaker 01:
One of the other issues here is that Dr. Karginis, his records were not reviewed by the ALJ.

[00:18:59] Speaker 01:
That's a brain injury.

[00:19:00] Speaker 01:
And to have some consultant examiner not review it and make an analysis that her memory is fine, she's got an EEG that says her brain is slow.

[00:19:11] Speaker 01:
It's objective.

[00:19:12] Speaker 01:
So as far as subjective statements, and we've put this in the record and also put her hearing in the record, she's trying very hard to explain what her situation is.

[00:19:22] Speaker 01:
And we can't count it against her that she's got brain trauma.

[00:19:27] Speaker 01:
Her issue is that she's having trouble.

[00:19:29] Speaker 01:
And Social Security is...

[00:19:32] Speaker 01:
is not, you know, completely lucrative thing.

[00:19:34] Speaker 01:
It's to take the people who can't work and give them some assistance so that they can go on.

[00:19:41] Speaker 01:
And I feel like the Commissioner's suggesting that, as in before, 1985, that the ALJ could just toss it out.

[00:19:49] Speaker 01:
This looks good.

[00:19:50] Speaker 01:
This looks good.

[00:19:51] Speaker 01:
The whole structure is to make sure that we cover everything consistently.

[00:19:56] Speaker 01:
And this is a kind of a blatant case, and I hope

[00:20:00] Speaker 01:
I'm open for any questions on any issue, but I feel it's pretty blatant.

[00:20:04] Speaker 01:
You're supposed to review the doctor's brain injury and the EEG.

[00:20:09] Speaker 01:
He did not, and it's not diminished.

[00:20:15] Speaker 04:
Thank you, counsel.

[00:20:16] Speaker 04:
We thank both counsel for their arguments and the cases submitted.