[00:00:00] Speaker 00:
Good morning, Your Honor.

[00:00:02] Speaker 00:
May it please the Court, my name is Amanda Tilley Beeler.

[00:00:06] Speaker 00:
I represent the Appellant Plaintiff, Kayleigh K. Gageby in this appeal arising from her August 26, 2015 application for Title II Social Security Disability Insurance benefits.

[00:00:19] Speaker 00:
I would like to reserve the last two minutes of my time for rebuttal.

[00:00:24] Speaker 04:
You may just keep an eye on your clock.

[00:00:27] Speaker 00:
Very good, Your Honor.

[00:00:27] Speaker 00:
Thank you.

[00:00:29] Speaker 00:
The crux of this case involves whether or not the ALJ accurately reflected the plaintiff's limitations and concentration persistence and pace in the RFC and whether the correct legal standards were applied.

[00:00:43] Speaker 00:
This gave rise to two different narrow issues that we brought before the circuit court today.

[00:00:49] Speaker 00:
The first being whether or not the judge violated the law of the case doctrine.

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based on what the district court had already determined was supported by substantial evidence.

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And then secondly, whether the evaluation of Dr. Campion's evaluation opinion somehow violated the law of mandate by failing to properly evaluate that, even though the district court ordered for specific and legitimate reasons to be given for evaluating that opinion.

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So first turning to the law of the case doctrine, the Ninth Circuit has indicated that generally the court is prohibited from considering an issue that's already been decided by that same court or a higher court in the same case.

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In this particular case, we would argue that the ALJ deviated from previous findings in the psychiatric review technique at step three of the sequential evaluation process

[00:01:52] Speaker 00:
where he found moderate limitations in 2018.

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The district court, Judge DeSoto, in his remand order in 2021, indicated that that finding was supported by substantial evidence.

[00:02:06] Speaker 00:
But then the ALJ came back in 2022 and lowered those limitations to only mild limitations, but essentially only gave the same explanation, provided new high

[00:02:19] Speaker 00:
highly probative evidence that would allow the court to understand why he was deviating from that previous decision of the district court.

[00:02:29] Speaker 04:
In the district court, you didn't invoke the law of the case doctrine, did you?

[00:02:34] Speaker 00:
In the district court, we made the argument, it was more of a logical bridge argument.

[00:02:40] Speaker 00:
We did argue that we felt that the ALJ erred in changing his mind on these limitations.

[00:02:49] Speaker 00:
We invoked, we didn't invoke the specific language of law of the case, but we did bring up, this is actually in the excerpt 28.1 page 17 is where we brought this up.

[00:03:02] Speaker 00:
So we brought up the fact that the ALJ made prior decisions, changed those decisions, but failed to create a logical bridge or give an explanation that would allow the court to understand why he made that decision.

[00:03:17] Speaker 04:
And you think that's enough to preserve the argument here?

[00:03:21] Speaker 00:
I believe it's enough because of the totality of the argument that that plaintiff is bringing.

[00:03:26] Speaker 00:
The totality of both arguments is that the ALJ erred in bringing forward a specific explanation of why there should be no limitations to account for concentration persistence and pace in the RFC.

[00:03:43] Speaker 00:
So even though we're bringing a more narrow issue here before the court, the overall arching issue is that the ALJ found that the plaintiff could do skilled work and denied her benefits based on that.

[00:03:59] Speaker 00:
However, throughout his both decisions, he's alleging that the plaintiff had limitations in the area of concentration, persistence, and pace.

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In both decisions, he even noted that she has issues with considerable stress.

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She's overwhelmed in noisy environments.

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It led her to retire from her job.

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She had not been given more training or time to adjust to the changes at her job.

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She may need additional time or she has difficulty maintaining pace in certain work environments because Dr. Choco had indicated she speaks slowly and hesitantly.

[00:04:43] Speaker 00:
Um, the ALJ found this in both, um, step three determinations, but then at step four found that there were essentially, uh, nothing other than noise, which, which doesn't make any sense, uh, specifically because the ALJ didn't, um, he accepted her subjective complaints about noisy environments causing her concentration issues.

[00:05:10] Speaker 00:
But somehow rejected everything else about her inability to complete tasks or the fact that she needed more time on her job to adjust to changes or that considerable stress on her prior job caused her concentration issues.

[00:05:27] Speaker 00:
He found that that earlier that that was credible, but then didn't put it in the RFC.

[00:05:32] Speaker 00:
All he talked about was noise later on.

[00:05:35] Speaker 00:
So that was the biggest issue.

[00:05:37] Speaker 02:
Excuse me, Counsel, this is Judge Schroeder.

[00:05:40] Speaker 02:
I wondered if I could ask you a question.

[00:05:45] Speaker 02:
I thought the ALJ also found that she had worked for eight years after the accident that allegedly created her a disability.

[00:05:54] Speaker 00:
Yes, Your Honor.

[00:05:56] Speaker 02:
That appears to be supported by the evidence, does it not?

[00:06:02] Speaker 00:
Your Honor, the alleged onset date in this case is not until 2015.

[00:06:06] Speaker 00:
So the fact that she was able to work prior to that is not at issue.

[00:06:10] Speaker 02:
Well, but what accounted, am I correct that what accounted for the problem was the accident some years earlier?

[00:06:19] Speaker 00:
Yes, he found organic brain syndrome to be a severe impairment.

[00:06:25] Speaker 00:
So if I can address that just a little bit further,

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plaintiff's condition worsened over time.

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The evidence indicates worsening over time.

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So even though she was able to work after her accident in 2015, there's evidence that the ALJ seemed to accept that she retired from her job because she had not been given more time or training to adjust to the changes at her job.

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She became under considerable stress and he seemed to accept that

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In both of his decisions at step three, he indicated that that was the reason she had to retire from that job.

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So that was part of one of our arguments about Dr. Campion's opinion is that we didn't feel that the ALJ specific or gave a legitimate reason.

[00:07:17] Speaker 00:
We didn't or we felt this wasn't legitimate.

[00:07:22] Speaker 03:
How significant for purposes of analysis the change from

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moderate to mild?

[00:07:33] Speaker 00:
The significance is that we don't know.

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The vocational expert was not given a hypothetical question that would allow for moderate limitations.

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So we don't know if that would affect the ability to do the skilled work that was found at step four of the sequential evaluation process.

[00:07:53] Speaker 00:
The problem with that being is because of her age and education and that skill level, if the vocational expert felt that she could not no longer handle the stress of skilled work or perform the skill level of her past work, she would be entitled to a directed finding of disability benefits under the medical vocational rules.

[00:08:15] Speaker 00:
So it's very significant in the sense here that the vocational expert hasn't been posed

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with a hypothetical question that would reflect an individual that was impaired in this area.

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The ALJ only put noise and then added the limitation that she could persist and maintain pace.

[00:08:38] Speaker 00:
Well, all unimpaired workers have to do that.

[00:08:41] Speaker 00:
There's no impairment or limitation there as far as impairment goes.

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And I will reserve the rest of my time for rebuttal.

[00:08:49] Speaker 04:
You may.

[00:08:49] Speaker 04:
Thank you.

[00:08:58] Speaker 04:
Ms.

[00:08:58] Speaker 01:
Bond.

[00:09:08] Speaker 01:
Good morning, Shay Bond on behalf of the Acting Commissioner of Social Security.

[00:09:12] Speaker 01:
I agree with my colleague here that the question is, is the RFC accommodating of this claimants' limitations given this record?

[00:09:21] Speaker 01:
And it's our position that it is.

[00:09:24] Speaker 01:
Regardless of the limitation at step three being a mild or a moderate limitation, the question is always, once you get past steps two and three, whether the RFC accommodates the claimants' limitations.

[00:09:35] Speaker 01:
And so here,

[00:09:36] Speaker 01:
It is quite clear from this record that the claimant attributed her difficulties with work, and it's the reason she left her job, was because the office configuration changed.

[00:09:47] Speaker 01:
She went from an office, like a private office space, to basically a cubicle farm.

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cacophony of noise from hearing her colleagues on the telephone, because that's how their jobs changed.

[00:09:59] Speaker 01:
They were more on the telephone.

[00:10:01] Speaker 01:
That it was very difficult for her to concentrate.

[00:10:04] Speaker 01:
She was getting flustered.

[00:10:05] Speaker 01:
She was having these difficulties due to the noise levels.

[00:10:10] Speaker 01:
And so the ALJ took that into consideration in formulating the RFC here, which limited the noise to only a moderate level.

[00:10:18] Speaker 01:
And that moderate level was described as just in an office environment just typing.

[00:10:22] Speaker 01:
So it's eliminating that higher level of noise that she found so difficult to work with.

[00:10:29] Speaker 01:
And regardless, again, of whether the ALJ was finding a mild or a moderate limitation to that earlier step, we are only really concerned with, do the RFC accommodate disclaimants limitations?

[00:10:40] Speaker 01:
And they do.

[00:10:41] Speaker 03:
And then what's the whole purpose of the mild versus

[00:10:47] Speaker 01:
Well, at the earlier steps of the sequential evaluation, that's a requirement to engage in the PRTF analysis.

[00:10:56] Speaker 01:
And then, of course, the district court on remand ordered the ALJ to reconsider the evidence based on Dr. Campion's opinion and to evaluate, again, whether the moderate limitation was appropriate.

[00:11:11] Speaker 01:
Here the ALJ found moderate limitation was inappropriate based on, as your honor had indicated, she had continued to work at a very high skilled level job for eight years after her head injury, the motorcycle accident.

[00:11:28] Speaker 01:
The ALJ also pointed out that more recently during the period at issue, she was engaging in activities that were inconsistent with having these very extreme concentration issues.

[00:11:40] Speaker 01:
Like she was still riding a motorcycle, although she went from two wheels to three wheels.

[00:11:44] Speaker 01:
She was attending the Sturges

[00:11:46] Speaker 01:
motorcycle rally.

[00:11:47] Speaker 01:
I think she had told Dr. Moser that she was riding 1,000 miles on her motorcycle.

[00:11:54] Speaker 01:
She was hitching her motorcycle to a trailer and driving that to the rally.

[00:11:59] Speaker 01:
She was also engaging in

[00:12:01] Speaker 01:
planning for travel and accounting.

[00:12:03] Speaker 01:
And so these are activities that would again be inconsistent with the level of concentration problems that either she was alleging or that Dr. Campion had proposed.

[00:12:15] Speaker 04:
But all of that had been true before, hadn't it?

[00:12:18] Speaker 01:
I'm sorry, could you repeat that?

[00:12:19] Speaker 04:
All of that was true before.

[00:12:21] Speaker 04:
for the ALJ's first decision.

[00:12:24] Speaker 04:
All of that evidence was before him.

[00:12:26] Speaker 01:
And correct.

[00:12:27] Speaker 01:
And so what had happened was that the ALJ in the first decision overlooked Dr. Campion's second opinion.

[00:12:34] Speaker 01:
Because Dr. Campion had issued two opinions, actually.

[00:12:37] Speaker 01:
Dr. Campion initially said that the claimant had no limitations whatsoever.

[00:12:40] Speaker 01:
And then based on some memory testing, I believe from Dr. Moser, said, oh, now she has a moderate limitation.

[00:12:48] Speaker 01:
So we do have a lot of the same evidence, but now it's under a different lens where the ALJ was tasked with evaluating Dr. Campion's opinion, but still found that that evidence, and I would point out that during the first ALJ decision, the ALJ had discounted Dr. Moser's opinion using almost identical reasons for now evaluating and discounting Dr. Campion's opinion, and the district court affirmed those reasons.

[00:13:16] Speaker 01:
So that is the same evidence, but now that it's being used to evaluate Dr. Campion's opinion, which the ALJ had overlooked the first time.

[00:13:24] Speaker 01:
So it's still relevant.

[00:13:26] Speaker 03:
So is that the reason why the ALJ switched from mild to moderate?

[00:13:32] Speaker 01:
From moderate to mild.

[00:13:33] Speaker 03:
From moderate to mild, I'm sorry.

[00:13:35] Speaker 01:
Well, yeah, and I would say it's because the, well, but there's also additional evidence that came into the record.

[00:13:41] Speaker 01:
We do have the evidence of, you know, again, claimants continued activities.

[00:13:46] Speaker 01:
And I think that with the ALJ looking at Dr. Campion's opinion and evaluating it, realized that the moderate limitation was not appropriate here.

[00:13:54] Speaker 03:
That's not what he said.

[00:13:55] Speaker 02:
He didn't explain that.

[00:13:56] Speaker 01:
Well, what I'm saying is that we have the ALJ evaluating Dr. Campion's opinion.

[00:14:02] Speaker 01:
And it's not in the step three portion of the decision.

[00:14:05] Speaker 01:
I will agree with that.

[00:14:07] Speaker 01:
But the ALJ gives a very thorough evaluation of Dr. Campion's opinion later on.

[00:14:12] Speaker 01:
And when this court is evaluating the ALJ's reasons and rationale, it looks to the entirety of the ALJ's decision.

[00:14:20] Speaker 01:
And so we have on page 1040 of the record, and that's the ALJ's 2022 decision,

[00:14:25] Speaker 01:
We have the paragraph really getting into detail why Dr. Campion's opinion is being discounted.

[00:14:31] Speaker 04:
So I'm looking at the first fall paragraph on that page which includes the statement that moderate limitations in concentration are not supported by the record as a whole, which is

[00:14:45] Speaker 04:
fine maybe on its own, but doesn't grapple with the fact that the ALJ on essentially the same facts had previously reached a different conclusion.

[00:14:55] Speaker 04:
And I don't know whether it's law of the case really or just the more general administrative law principle that you have to explain when you're changing your position, but it seems like the explanation for the change is missing there, isn't it?

[00:15:08] Speaker 01:
Well, but we have the decision that was vacated.

[00:15:10] Speaker 01:
So this isn't a situation, say, where the ALJ is tasked with explaining a medical improvement situation.

[00:15:17] Speaker 01:
We had a decision that was vacated by the district court and said, you have to address this opinion, this doctor's opinion on remand.

[00:15:24] Speaker 02:
But he didn't say that the change was on account of evaluating the Campion opinion, did he?

[00:15:31] Speaker 01:
Well, I think by the ALJ, again on page 1040, in saying that Dr. Campion had assessed the moderate limitation in concentration, persistence, and pace, and then saying I'm giving this opinion minimal weight, we are having an explanation here.

[00:15:46] Speaker 01:
And I think that would track back to then explaining why the ALJ did not assess a moderate limitation earlier.

[00:15:56] Speaker 01:
Getting back to my original point, even if the ALJ is assessing a mild or a moderate limitation at steps two and three, the question really is here whether the RFC accommodated the claimant's limitations.

[00:16:09] Speaker 01:
And here it is quite clear that the limitation that was triggering the diminution in concentration persistence and pace was the noise level that she was experiencing at her job.

[00:16:20] Speaker 01:
And the ALJ, by correcting that, by saying,

[00:16:23] Speaker 01:
I'm not going to have you working at a job that exposes you to these loud noises.

[00:16:26] Speaker 01:
You're not going to experience the limitations that you said you had or that Dr. Campion would say that she had.

[00:16:33] Speaker 01:
And that's really ultimately what this court should be looking to, is this RFC supported and it is.

[00:16:39] Speaker 01:
So regardless of how the ALJ is characterizing the limitation at an earlier step, the pertinent really question is whether this RFC is supported and it is.

[00:16:54] Speaker 01:
And I would just briefly just say that we believe that the law of the case issue was waived below, but even if the court were to address it, there was no violation of law of the case.

[00:17:05] Speaker 01:
ALJ did exactly what the district court ordered her to do, which was to reevaluate the moderate limitation and then the RFC, whatever RFC limitations were flowing from this record.

[00:17:17] Speaker 03:
Do you agree with counsel's argument that in the district court they at least laid the factual predicate for the argument?

[00:17:24] Speaker 01:
I would say they described it, to me it felt more like just a garden variety disagreement with how the ALJ evaluated the evidence on remand.

[00:17:33] Speaker 01:
So they didn't like the reasons that were given for rejecting.

[00:17:36] Speaker 01:
Dr. Campion's opinion.

[00:17:37] Speaker 01:
And so that was absolutely preserved, and we can argue about that.

[00:17:42] Speaker 01:
But it was certainly not raised as law of the case.

[00:17:45] Speaker 01:
And I think a good example of why it wasn't was because the district court didn't address law of the case at all or the rule of mandate below, because the district court had no reason to address that issue.

[00:17:56] Speaker 01:
It wasn't properly raised.

[00:17:58] Speaker 03:
I guess the words, law, the case, because the words of the law and case were not part of the argument in the district court.

[00:18:05] Speaker 01:
Those words, its way... Yeah, I mean, that's a very specific, I think, type of argument to make.

[00:18:10] Speaker 01:
And so that should have been raised below, but it wasn't.

[00:18:13] Speaker 02:
But what it means is, to me, in the context of this case, it means the ALJ changed his or her mind about the nature of the

[00:18:27] Speaker 02:
impairment and didn't explain why.

[00:18:33] Speaker 01:
Well, but I think the plaintiff's argument was that was arguing that the step three finding was set in stone and could not be changed.

[00:18:39] Speaker 01:
That's I think was what they're trying to argue here, but they did not argue really that below.

[00:18:44] Speaker 01:
It was we don't think that the ALJ explained herself appropriately enough to make the

[00:18:51] Speaker 01:
to have made the change.

[00:18:53] Speaker 01:
That's different than a lot of the case issue.

[00:18:54] Speaker 01:
That's supposed to say that the ALJ is not permitted to make a change in an earlier step of the sequential evaluation, and that's just not what happened here.

[00:19:03] Speaker 01:
That's not what the district court ordered.

[00:19:06] Speaker 01:
The district court ordered for a re-evaluation based on Dr. Camping's opinion, which this ALJ complied with, and then gave explanations for why

[00:19:15] Speaker 01:
that opinion was not accepted and then gave explanations for why this RFC addressed the claimant's concentration persistence and pace issues based on the exposure to noise levels.

[00:19:29] Speaker 01:
And ultimately, that should be the determining factor here.

[00:19:31] Speaker 04:
Thank you, counsel.

[00:19:35] Speaker 00:
Thank you.

[00:19:37] Speaker 00:
Mr. Butler.

[00:19:37] Speaker 00:
Yes.

[00:19:38] Speaker 00:
Just in rebuttal, Your Honor.

[00:19:40] Speaker 00:
Thank you.

[00:19:40] Speaker 00:
And I wanted to touch back on the law of the case doctrine just briefly.

[00:19:45] Speaker 00:
We did not argue that the step three findings were set in stone.

[00:19:50] Speaker 00:
I believe it's the Johnson case that indicated that if the ALJ is gonna deviate from those findings, they must present highly probative evidence to do so.

[00:19:59] Speaker 00:
That was not done here.

[00:20:02] Speaker 00:
The ALJ basically just relied on the exact same evidence, came to two different conclusions, and she indicated that it was based just on the noise issue.

[00:20:12] Speaker 00:
However, the record reflects

[00:20:15] Speaker 00:
that plaintiffs condition worsened significantly.

[00:20:18] Speaker 00:
There was a hospitalization that she had where she was making homicidal threats to a judge, threats toward family members and friends.

[00:20:29] Speaker 00:
She had delusional thoughts.

[00:20:31] Speaker 00:
Her examinations were hyperverbal and tangential speech with thought processes that were agitated and labile moods.

[00:20:39] Speaker 00:
She appeared manic with flight of ideas.

[00:20:41] Speaker 00:
She was overly goal-oriented.

[00:20:43] Speaker 00:
The ALJ characterized all these as normal, but these were not normal findings.

[00:20:50] Speaker 00:
And so we would argue that it makes no sense that the ALJ would actually diminish the amount of limitation that she had in concentration, persistence, and pace when it was clear from the record that over the period of time, her condition actually worsened.

[00:21:07] Speaker 00:
And then just to touch on the daily activities,

[00:21:10] Speaker 00:
She mentioned several things about riding a motorcycle or going to a convention or rally, but that doesn't indicate what an individual can do on a regular and continuing basis, eight hours a day, five days a week, which is what the ALJ is required to do.

[00:21:28] Speaker 00:
Thank you for your time, Your Honor.

[00:21:30] Speaker 04:
Thank you.

[00:21:31] Speaker 04:
We thank both counsel for their arguments and the cases submitted.