[00:00:38] Speaker 04:
It's an excuse being hard.

[00:00:42] Speaker 04:
Just turn the page.

[00:00:47] Speaker 04:
Turn the page.

[00:00:54] Speaker ?:
Turn the page.

[00:00:56] Speaker 04:
Sorry it'll just take me a minute to get my right turn.

[00:01:05] Speaker 04:
Get the papers before me tonight.

[00:01:22] Speaker 04:
Let's see.

[00:01:24] Speaker 04:
The next one.

[00:01:27] Speaker 04:
The next case on the argument docket is, is it Galvat?

[00:01:45] Speaker 04:
Is it?

[00:01:52] Speaker 04:
No.

[00:01:53] Speaker 04:
Gov, as we do that.

[00:01:57] Speaker 04:
Bring that closer.

[00:02:01] Speaker ?:
I'll put that there.

[00:02:03] Speaker 04:
Put that on the left side.

[00:02:05] Speaker 04:
Just one page.

[00:02:10] Speaker 04:
All right.

[00:02:10] Speaker 04:
Go ahead.

[00:02:10] Speaker 04:
A bell can proceed.

[00:02:17] Speaker 05:
Good morning.

[00:02:17] Speaker 05:
I'm Sonia Carson.

[00:02:18] Speaker 05:
I'm representing the government.

[00:02:20] Speaker 03:
Could you adjust the mic?

[00:02:21] Speaker 03:
You're speaking very softly.

[00:02:24] Speaker 05:
Good morning.

[00:02:25] Speaker 05:
I'm Sonia Carson.

[00:02:26] Speaker 05:
I'm representing the government in this case.

[00:02:28] Speaker 05:
I understand that the court has allotted 15 minutes per side for argument, and I'd like to reserve five minutes for rebuttal, if I may.

[00:02:35] Speaker 04:
Five minutes out of your 10?

[00:02:39] Speaker 05:
Pardon me.

[00:02:40] Speaker 05:
It is set for 10.

[00:02:41] Speaker 05:
It is set for 10.

[00:02:42] Speaker 05:
Then in that case, three minutes, please.

[00:02:44] Speaker 04:
OK.

[00:02:47] Speaker 05:
Good morning.

[00:02:48] Speaker 04:
Please proceed.

[00:02:49] Speaker 05:
Lydia Galvez, in this case, received everything that the Supreme Court in Lucia and this court in Cody required.

[00:02:56] Speaker 05:
A new hearing before a new ALJ who, no one disputes, was properly appointed and had not previously been involved in her case.

[00:03:04] Speaker 05:
That should be the end of the matter.

[00:03:05] Speaker 01:
And I think that... Why would that be the end of the matter after Cody, where we said we're really looking for was there a fresh look?

[00:03:11] Speaker 01:
Did somebody take a fresh look?

[00:03:13] Speaker 01:
And I think the government's position is if there's a new hearing with a new ALJ, we're good.

[00:03:19] Speaker 01:
Why is that sufficient?

[00:03:21] Speaker 05:
I heard two questions, and so let me take the last one first.

[00:03:24] Speaker 05:
The government's position here is that when a properly appointed decision-maker states that he or she is making a decision de novo pursuant to the instructions to which that decision-maker is always subject, that the presumption of regularity would give us no reason to look behind that decision to conclude... Presumption is one thing, but what you just said I took to... Maybe I'm listening or reading your brief too literally.

[00:03:47] Speaker 01:
The presumption is one thing, but I think what you're arguing in your brief is that as long as we've got a new ALJ and a new hearing, our analysis should end.

[00:03:56] Speaker 01:
That's different.

[00:03:58] Speaker 05:
Well, here we have an accusation that despite the proper appointment, that as a matter of the appointments clause, there continues to be an error because ALJ Myers found useful some of the language that also appeared in ALJ Kennedy's decision.

[00:04:12] Speaker 05:
And so here, just as in Cody,

[00:04:14] Speaker 05:
The government is responding to an argument from the other side, and I think that's critical to understanding the court's discussion in Cody of linguistic similarity.

[00:04:22] Speaker 01:
Well, I think that, again, I'm one of three, but it seems that both of the extreme positions here are the wrong answer, and the district courts are struggling with this.

[00:04:32] Speaker 01:
Where's the sweet spot?

[00:04:34] Speaker 01:
What does Cody mean?

[00:04:35] Speaker 01:
What's it take to show that there's an independent fresh look?

[00:04:38] Speaker 01:
And so what do you think that the answer should be?

[00:04:41] Speaker 05:
Well, my first answer is that Cody is distinguishable, because Cody involved two decisions by the same person.

[00:04:48] Speaker 01:
I appreciate that.

[00:04:49] Speaker 01:
But post Cody, what should the answer be?

[00:04:53] Speaker 01:
Is it really the case?

[00:04:54] Speaker 01:
And I've been pretty clear about conveying skepticism, that it's enough to just say, OK, now we've got a new ALJ, and now we've got a new hearing.

[00:05:02] Speaker 01:
Because that could be an entirely repurposed opinion.

[00:05:07] Speaker 01:
And I think the government's position would allow that.

[00:05:10] Speaker 05:
So the government's position is, as a matter of the appointments clause, the question whether the remedy in Lucia and Cody has been received, the opinion could indeed resemble exactly the prior opinion.

[00:05:22] Speaker 05:
But the question is whether, when that opinion is challenged, there is reason to think that the new ALJ who is properly appointed has evinced the kind of closed mind that could preclude categorically de novo review.

[00:05:35] Speaker 05:
And that's simply not what we have here.

[00:05:36] Speaker 01:
That's exactly what I'm trying to get you to focus on.

[00:05:39] Speaker 01:
What is it that we should be looking at?

[00:05:40] Speaker 01:
I think Judge Talman is going to ask this question.

[00:05:42] Speaker 03:
I guess this question really for both of you.

[00:05:45] Speaker 03:
I don't understand how this is any different from a district judge reviewing a report and recommendation from a magistrate judge and saying, I've reviewed the report and recommendation and I affirm it.

[00:05:57] Speaker 03:
We don't require the district judge to add additional language that explains how the district judge did his or her homework.

[00:06:06] Speaker 03:
Maybe this is the presumption of regularity.

[00:06:09] Speaker 03:
We assume that what the district judge says, I gave it an independent look.

[00:06:13] Speaker 03:
That's exactly what the district judge did.

[00:06:15] Speaker 03:
So how is this different, if it is different?

[00:06:18] Speaker 05:
The government's position is that it is not different.

[00:06:20] Speaker 05:
And the reason that I'm talking about the passages, for example, where A.L.

[00:06:24] Speaker 05:
de Meyer says, I find that the impairments are non-severe, is because there has been a question raised as to whether or not this truly was a de novo review.

[00:06:34] Speaker 01:
And the reason for that question, right, is about 40 percent of it, about eight pages, really is

[00:06:39] Speaker 01:
Almost verbatim.

[00:06:41] Speaker 01:
So if you could engage in that, that would be helpful.

[00:06:44] Speaker 05:
Sure.

[00:06:44] Speaker 05:
On the literal question whether or not if we applied CODI as establishing an independent test requiring some degree of dissimilarity in the opinions, which I think again is a matter of the appointments clause.

[00:06:57] Speaker 05:
is clearly incorrect and well beyond the facts of Cody.

[00:07:01] Speaker 05:
What we have here is an opinion that shared 1,431 words out of an 11,000 word opinion.

[00:07:07] Speaker 05:
I haven't counted how many are he or she or that or this.

[00:07:12] Speaker 03:
The point, I think... Does it matter whether... It's not going to be a word count test, right?

[00:07:16] Speaker 03:
If it focused on the procedural history of the case, would that make a difference?

[00:07:21] Speaker 05:
So according to Ms.

[00:07:22] Speaker 05:
Galvez, it makes all the difference.

[00:07:25] Speaker 05:
The only part of the... On the government's position.

[00:07:29] Speaker 05:
The government's position is, as Judge Tallman has articulated it, with the addition, to your point, that

[00:07:37] Speaker 05:
in the event that the independent nature of the new different person, ALJ's judgment, is questioned, that at least here, there can be no doubt under any reading of Cody that independent judgment is in fact what ALJ Myers brought to this case.

[00:07:55] Speaker 05:
And you can see that in his statement.

[00:07:57] Speaker 05:
You can see that also in his discussion.

[00:07:59] Speaker 05:
I think Ms.

[00:08:00] Speaker 05:
Galvez rightly concedes that there's no problem and certainly no appointments clause problem.

[00:08:06] Speaker 05:
with an ALJ finding useful material that appeared in a factual background or a procedural summary.

[00:08:11] Speaker 01:
What you're doing is you're restating your conclusion.

[00:08:13] Speaker 01:
And I'm not telling you that I disagree with your conclusion, but I am trying to suggest quite overtly, I think.

[00:08:19] Speaker 01:
that not all the district court judges understand Cody the way you do.

[00:08:24] Speaker 01:
And our job is to try to provide guidance if we can and to try to be helpful.

[00:08:28] Speaker 01:
So it seems to me, for example, to follow up on Judge Tallman's point, that repurposed, that's my word, but repurposed passages that go to the history of the case or the procedural history or the medical history, facts that haven't changed

[00:08:45] Speaker 01:
should not give me cause for pause about whether this person got a new fresh look.

[00:08:50] Speaker 01:
I think that's undisputed.

[00:08:51] Speaker 01:
Ms.

[00:08:51] Speaker 01:
Galvez herself takes that point.

[00:08:54] Speaker 01:
And if you don't want to engage and try to help me flesh out, I'm not going to go any further.

[00:08:59] Speaker 01:
But I did want to give you every opportunity to provide input on what the new test should be.

[00:09:04] Speaker 05:
The test should be, and the government's position is that the extent and limit of Cody is that Cody applies only in circumstances where there is not a literal new human who has been properly appointed deciding the case if this court were to... But your argument is that if we look at the opinion in its totality as opposed to concentrating on the 1,100 words or whatever it is out of the sum total,

[00:09:29] Speaker 03:
that we should take comfort in the fact that the second administrative law judge gave it a full and independent review.

[00:09:36] Speaker 05:
Our position is that because the second ALJ said that he was giving it a independent view and because he is instructed, as a matter of the HALEX and as a matter of the appeals council in this case, to conduct an independent review, that the remainder of the opinion is not relevant to the analysis.

[00:09:53] Speaker 03:
Counsel, that was a soft pitch question.

[00:09:55] Speaker 03:
I'm suggesting to you that if you read the whole opinion, however many pages it is, what, 16, 17 pages long, and just focus on the part that

[00:10:06] Speaker 03:
the claimant is focusing on, you're missing the forest for the trees.

[00:10:10] Speaker 03:
You gotta look at the whole opinion and then say at the end of the opinion, am I satisfied that the second ALJ gave it an independent look?

[00:10:18] Speaker 03:
And I think your answer has to be yes.

[00:10:20] Speaker 05:
Well, the government would certainly not object to a reversal on that basis.

[00:10:26] Speaker 05:
And as to the similarities or dissimilarities in the opinion, I can give the court even more comfort.

[00:10:32] Speaker 05:
For example, A.L.J.

[00:10:33] Speaker 05:
Kennedy found that the claimant's lifting restriction was 20 pounds.

[00:10:39] Speaker 05:
A.L.J.

[00:10:39] Speaker 05:
Myers found that it was 10 pounds.

[00:10:41] Speaker 05:
A.L.J.

[00:10:41] Speaker 05:
Kennedy found that the residual function analysis capacity included occasional kneeling.

[00:10:47] Speaker 05:
A.L.J.

[00:10:47] Speaker 05:
Myers said no kneeling.

[00:10:49] Speaker 05:
A.L.J.

[00:10:49] Speaker 05:
Kennedy said no concentrated exposure to hazards.

[00:10:52] Speaker 05:
A.L.J.

[00:10:53] Speaker 05:
Myers said no hazardous conditions.

[00:10:54] Speaker 01:
So there's meaningful differences that reflect that, you know, as we were trying to, a couple of us trying to explain, it's not just a matter of reciting historical facts, but there's different analysis here.

[00:11:05] Speaker 05:
There is different analysis, but I want to caution the court about the import of adopting the reading of Cody that would be, in our sense, the more extreme as we've said in our brief version.

[00:11:19] Speaker 05:
Right now, the universe of cases that potentially presents a Lucia or Cody problem is closed.

[00:11:28] Speaker 05:
And if the rule is that a disappointed litigant can look at his or her decision and sort of feel as a gestalt matter that it's too similar and infer from that similarity that the presumption of regularity should be discarded and that the literal words of the ALJ's opinion are worth nothing,

[00:11:48] Speaker 04:
Council, could you pause please?

[00:11:50] Speaker 04:
Yes.

[00:11:50] Speaker 04:
Originally you wanted to reserve three minutes.

[00:11:55] Speaker 04:
You're down to 55 seconds.

[00:11:59] Speaker 04:
I mean, I'll give you an extra two minutes, but you should either stop now or conclude your time and I'll add that.

[00:12:10] Speaker 05:
Thank you.

[00:12:12] Speaker 05:
Judge Gould, I'll just finish my sentence.

[00:12:14] Speaker 05:
If the rule is that someone who feels that the next decision they got is just too much like the last one that they got, and that as a matter of the appointments clause, that's a colorable challenge, we are in a universe of cases that is far beyond what Cody or LaChia ever contemplated.

[00:12:33] Speaker 03:
Basically, you're arguing there's no end to it.

[00:12:35] Speaker 05:
Yes.

[00:12:38] Speaker 05:
Thank you.

[00:12:39] Speaker 02:
Thank you counsel I'm James tree attorney for miss Galvez.

[00:12:51] Speaker 03:
She's had her disability case going for 15 years now I was just gonna say how many times have we been around the block on this?

[00:12:57] Speaker 02:
So many so many decisions from so many different places How much process does she need yeah?

[00:13:05] Speaker 02:
The interesting thing to me is that what Judge Shea, he picked up on this, I think, at the federal court, was that the most important issue here is the medical opinion evaluation.

[00:13:17] Speaker 02:
Now, that's the key to the case because in Kennedy I, which was the first ailed institution, it was found he didn't properly evaluate the medical evidence.

[00:13:29] Speaker 02:
and that he needed to evaluate the medical evidence, including Dr. Ider and Dr. Heisey's opinion.

[00:13:35] Speaker 01:
Yes, I appreciate that, but why does that matter here?

[00:13:37] Speaker 01:
We started over with a new ALJ.

[00:13:39] Speaker 02:
The reason that it matters is because in Kennedy II, they found that Kennedy violated the law of the case.

[00:13:47] Speaker 02:
He didn't do what the district court ordered and evaluate the medical evidence.

[00:13:51] Speaker 01:
I appreciate that too, but I'm still wondering about why it matters once ALJ Myers takes over.

[00:13:56] Speaker 02:
that matters is in Meyer 1, the same thing happened.

[00:14:00] Speaker 02:
He didn't evaluate, he violated the law of case, he didn't evaluate the medical opinions.

[00:14:05] Speaker 02:
So when we get to Meyer 2 and what we're talking about in this case, and Judge Shea said that

[00:14:15] Speaker 02:
He failed to properly assess the medical opinions.

[00:14:18] Speaker 02:
That's the key of the case.

[00:14:20] Speaker 02:
And that's what he, when he looked at those medical opinions, that's the copy and paste.

[00:14:27] Speaker 02:
You can look at things and there's some differences.

[00:14:30] Speaker 01:
Well, it's not.

[00:14:30] Speaker 01:
There's a different residual functional capacity.

[00:14:33] Speaker 01:
There's a different weighing of a couple of the expert opinions.

[00:14:37] Speaker 02:
Yeah, there's some differences.

[00:14:39] Speaker 02:
But the key of this case is evaluation of the medical opinions.

[00:14:42] Speaker 03:
But I thought part of the second ALJ's concern was her activities of daily living and the fact that she was working part-time in order to supplement her income.

[00:14:55] Speaker 03:
Those are pretty damaging pieces of evidence to contravene what she's saying to the doctors when she goes to solicit their opinions.

[00:15:06] Speaker 03:
She hadn't misrepresented to the doctors what she was doing.

[00:15:11] Speaker 03:
I understand.

[00:15:12] Speaker 03:
I'm not suggesting that she was lying.

[00:15:14] Speaker 03:
All I'm suggesting is that the second ALJ looked at what is, in my experience, a pretty active claimant.

[00:15:24] Speaker 03:
by virtue of some of the employment that she had during the period she claims that she was disabled.

[00:15:30] Speaker 03:
And the ALJ concluded that she wasn't as limited in her activities as she was telling her doctors.

[00:15:38] Speaker 03:
She didn't work at all in 2011 up through this.

[00:15:42] Speaker 02:
Through that i'm actually referring to the period much more recently than that i think around the two thousand nineteen two thousand seventeen to nineteen time frame didn't she work part-time as a home care Yeah, in the home taking care of elderly people that well somebody in the home that where she could take breaks whenever she needed it below substantial gainful activity so that's really to me is a non-issue in this case because it

[00:16:10] Speaker 02:
Because what we're looking at in this case is, was this decision tainted?

[00:16:16] Speaker 02:
in the evaluation of the medical evidence testimony and a medical evidence opinion.

[00:16:20] Speaker 03:
But she doesn't deny those activities, right?

[00:16:23] Speaker 03:
I mean, in my experience, it's unusual to have any work history during the period of disability.

[00:16:32] Speaker 02:
I've had thousands of cases where my clients have worked part-time, and I encourage them to do it.

[00:16:36] Speaker 02:
Particularly at home, health care is a good one because they can take breaks as they need it.

[00:16:41] Speaker 02:
And if they work above SGA, then we can ask for a closed period.

[00:16:44] Speaker 02:
If they work below SGA, we can ask for continuing benefits.

[00:16:47] Speaker 03:
Sure.

[00:16:48] Speaker 02:
And so I think it's a good thing that somebody tries to do that.

[00:16:51] Speaker 03:
Of course, she had... I'm not faulting her for doing it.

[00:16:53] Speaker 03:
I'm just suggesting that if we're reviewing this for substantial evidence, as I think we must, then it's hard for me to fault the ALJ for saying, oh, I'm not sure that she's as disabled as what she's claiming.

[00:17:08] Speaker 02:
So Judge Shea didn't get to the issue of the subjective.

[00:17:12] Speaker 02:
Right.

[00:17:12] Speaker 03:
I realize he never reached the merits because he basically decided the case on the basis of the Appointments Clause violation.

[00:17:19] Speaker 01:
So can we follow up on the Appointments Clause violation because I'm pretty concerned about.

[00:17:25] Speaker 01:
issuing an opinion that would suggest a bunch of busy work to just change some words around, for me it is quite significant if, so what has been repurposed?

[00:17:35] Speaker 01:
If we're talking about historical facts or anything historical, one wouldn't expect that's going to change.

[00:17:41] Speaker 01:
So that's a lot less meaningful to me than, you know, really looking at whether there's different reasoning or conclusions that are reached, as I think I've indicated.

[00:17:53] Speaker 01:
So the extremes on either end are problematic, in my views.

[00:17:57] Speaker 01:
The district court here said the ALJ erred by relying on portions of a decision tainted by an appointments clause violation.

[00:18:05] Speaker 01:
I think you heard opposing counsel's argument about making sure this universe is finite.

[00:18:12] Speaker 01:
That's her concern.

[00:18:13] Speaker 01:
And it shouldn't be enough that somebody is dissatisfied with their opinion.

[00:18:16] Speaker 01:
We've got Cody, and Cody talks about, and the Sixth Circuit case in Jones Brothers is really looking more, I think, at a more granular level and asking whether we've really got a fresh read

[00:18:28] Speaker 01:
That, to me, cries out for a test that directs courts to look at the totality of the circumstances and a bunch of factors.

[00:18:37] Speaker 01:
I don't know if you agree with anything that I just said.

[00:18:40] Speaker 01:
But if that's where I'm headed, I'd like you to tell me why I shouldn't be going there and what kinds of factors should be considered.

[00:18:46] Speaker 02:
Well, I'd like to just say, first off, if the test was simply that you need a different ALJ properly appointed, we would lose.

[00:18:54] Speaker 02:
Right.

[00:18:55] Speaker 02:
But that's not the test.

[00:18:55] Speaker 02:
That's not the issue, though.

[00:18:57] Speaker 01:
We're looking for a fresh look after Cody.

[00:18:58] Speaker 01:
A fresh look, a de novo hearing, and Cody at page 96... But your client had a couple de novo hearings in this case.

[00:19:06] Speaker 02:
We had a couple of hearings.

[00:19:08] Speaker 02:
We should have had a de novo hearing, but it wasn't because they adopted so much of the decision from Kennedy.

[00:19:14] Speaker 01:
The hearing itself, she had new hearings.

[00:19:17] Speaker 01:
Depending on how you count, she had two or two and a half with ALJ Myers.

[00:19:21] Speaker 01:
One of them, she didn't appear, and so then they did some work and then continued.

[00:19:25] Speaker 01:
So she's got a new ALJ that's uncontested.

[00:19:27] Speaker 01:
She's got a couple of new hearings.

[00:19:29] Speaker 01:
She had an opportunity to present new evidence.

[00:19:32] Speaker 01:
This ALJ came to a different RFC

[00:19:36] Speaker 01:
and weighed some of the medical testimony differently, why shouldn't I conclude this is enough and this is a fresh look?

[00:19:43] Speaker 02:
Because Cody says at page 962, I quote, Lucia requires an adjudication untainted by an appointments clause violation.

[00:19:53] Speaker 01:
Right, and the district clerk considered this to be tainted as I started, you know, and he considered it to be tainted because there's maybe 40% of it is recycled.

[00:20:04] Speaker 01:
Not verbatim, but I'm going to say repurposed.

[00:20:07] Speaker 01:
Much of that is historical.

[00:20:09] Speaker 01:
Why wasn't that enough?

[00:20:11] Speaker 02:
The district court focused in on the medical opinions and said that's where he took the stuff from Kennedy was on the medical evidence.

[00:20:24] Speaker 01:
One thing to recite what the experts said, that didn't change what the experts said, but it's another thing right to have adopted the reasoning or the balancing or weighing and that's not verbatim, that's new.

[00:20:35] Speaker 01:
So why isn't that meaningful?

[00:20:37] Speaker 02:
It isn't, in my opinion, because Dr. Hesse, who was the treating physician, had said he didn't understand why she had all this pain.

[00:20:47] Speaker 02:
He didn't see it objectively.

[00:20:49] Speaker 02:
Dr. Hesse then referred her to a rheumatologist in our community, Dr. Wendy Eider.

[00:20:55] Speaker 02:
Dr. Eider then performed tender points and gave an affirmative diagnosis of fibromyalgia.

[00:21:02] Speaker 02:
That then confirmed

[00:21:04] Speaker 02:
the pain that she had throughout her body and gave an objective balance for it.

[00:21:10] Speaker 02:
But Meyer still adopted Kennedy's decision pre

[00:21:15] Speaker 02:
Dr. Eider, that Dr. Hesse was misplaced because he wasn't sure what was the cause of this pain.

[00:21:26] Speaker 03:
If we reverse and send it back, then presumably the district court could send that back down to the agency to

[00:21:37] Speaker 03:
look at the merits.

[00:21:39] Speaker 02:
Most surely, the way I read Judge Shea's opinion is that that would happen because he, matter of fact, he said, medical opinions, plaintiff established consequential error on the medical opinion issue.

[00:21:52] Speaker 02:
So he actually reached the issue on medical opinions.

[00:21:55] Speaker 02:
He did reach the merits.

[00:21:57] Speaker 02:
It was tied to the Appointment Clause via the tainting of the Appointment Clause.

[00:22:01] Speaker 03:
To me, those are two separate questions.

[00:22:02] Speaker 03:
Maybe your argument, I guess, is they're interrelated.

[00:22:05] Speaker 03:
But what's your answer to the question that I asked your opponent with regard to a magistrate judge issuing a report and recommendation that a district court adopts in full and saying, I've given it an independent view, but I agree?

[00:22:19] Speaker 02:
Yeah.

[00:22:20] Speaker 02:
So my distinction is if that magistrate judge was properly appointed, that's great.

[00:22:26] Speaker 02:
If the magistrate judge wasn't properly appointed and wasn't a proper magistrate judge, then it would be clear error.

[00:22:35] Speaker 03:
You're turning this test into almost a, we weigh how much of the language is verbatim and decide if it exceeds 35%, then it's tainted 40%, but if the 40% is history,

[00:22:53] Speaker 03:
and procedure in the long haul, what difference does it make?

[00:22:56] Speaker 03:
If we're satisfied after, I think what I'm really saying is why can't we just give it a totality of the circumstances review if at the end of reading the opinion we're satisfied that it was given a reasoned and independent look, that's good enough.

[00:23:12] Speaker 02:
Yeah, and I think that's what Judge Shay did.

[00:23:14] Speaker 02:
He did that.

[00:23:15] Speaker 02:
I'm not so sure.

[00:23:16] Speaker 03:
I think he was

[00:23:18] Speaker 03:
influenced by the fact that there was so much verbatim adoption of language that frankly I don't think needs to be boiler or could be boilerplate without tainting the second review.

[00:23:33] Speaker 02:
The way I read Judge Shea was that the reason that that was so important because it was on the ultimate critical issue

[00:23:40] Speaker 02:
of evaluating the medical evidence of Dr. Hesse and Dr. Ider, which had been remanded on three times on that very issue previously.

[00:23:50] Speaker 02:
And so he combined those.

[00:23:53] Speaker 02:
He said there was error in evaluating the medical opinion, and that tainted this decision.

[00:24:00] Speaker 02:
And so, yeah, I mean, I'm sure that if this is remanded back to Judge Shea to say, hey, there's no appointment clause thing, evaluate on the merits, he's going to remand it back to evaluate the subjective.

[00:24:14] Speaker 02:
evidence in the medical case.

[00:24:16] Speaker 03:
As Judge Christin pointed out, we need to write an opinion that basically tells district judges in Judge Shea's position the first time around, this is how you evaluate an appointments clause challenge where you have a second properly appointed administrative law judge take a new look at the case.

[00:24:37] Speaker 02:
What I would suggest is that you use the language from Cody and Lucia that requires an adjudication that's untainted by an appointment's clause.

[00:24:48] Speaker 01:
But, counsel, they had that.

[00:24:49] Speaker 01:
Judge Shea had that, and that wasn't... I mean, they're still looking... I think he did that.

[00:24:53] Speaker 01:
Well, our district courts, from our perspective, our district court judges are still sort of dividing into a couple different camps.

[00:25:01] Speaker 01:
If you have anything else in response to Judge Talman's question, now would be the time about how we could be helpful to the judge.

[00:25:06] Speaker 03:
Help us write the opinion.

[00:25:08] Speaker 04:
Let me also say you're over your time by more than two minutes.

[00:25:17] Speaker 02:
What I saw here when I looked at this just recently is the disadvantage is Judge Shea had the briefing on the merits.

[00:25:23] Speaker 02:
You don't have the briefing on the merits.

[00:25:26] Speaker 02:
And that's the difference, because there's clear error in here, to my opinion, on the evaluation that Judge Myers did of the medical evidence.

[00:25:37] Speaker 02:
Judge Shea saw that, and then he made a determination.

[00:25:41] Speaker 02:
You took your medical evidence from Judge Kennedy's decision.

[00:25:45] Speaker 02:
That tainted your decision.

[00:25:47] Speaker 02:
And he also said there was there was error in evaluation of the medical evidence.

[00:25:53] Speaker 03:
So if you had that briefing, I think it would it would fill the gap you're having with your answer, though, is that it assumes that there has to be a complete rewrite of the decision in order to avoid any conclusion that there's a taint.

[00:26:08] Speaker 03:
And I'm not sure that the law requires that.

[00:26:12] Speaker 03:
To cure an appointment clause violation and the resulting quote-unquote taint.

[00:26:19] Speaker 02:
Social Security's agency policy and Social Security ruling 19-1P is that the decision needs to be an independent decision.

[00:26:32] Speaker 03:
But that begs the question of how you show that it was independent.

[00:26:36] Speaker 03:
That's what we're struggling with.

[00:26:39] Speaker 02:
It would be nice if Social Security just redacted the decision and not let the next ALJ see it.

[00:26:47] Speaker 02:
They would remove all doubt.

[00:26:49] Speaker 03:
So now we put blinders on the next ALJ.

[00:26:52] Speaker 01:
And of course, that would require a circuit split with a sixth circuit.

[00:26:55] Speaker 03:
So that would be tough.

[00:26:56] Speaker 03:
I don't think we're going that route.

[00:26:58] Speaker 02:
The Cody ordered a review untouched by the improper ALJ's decision.

[00:27:05] Speaker 03:
So there's no there's no anecdote for this poison.

[00:27:09] Speaker 02:
I think it's a fact, it's a fact issue.

[00:27:13] Speaker 02:
Is there too much, is it too, is it too much to the merits?

[00:27:17] Speaker 02:
The stuff that was adopted from the improper decision from, and see that's the whole thing is the constitutional design.

[00:27:24] Speaker 02:
The courts, Lucia.

[00:27:26] Speaker 03:
Under that test, the district judge could never adopt a report and recommendation of a magistrate judge without writing a whole new opinion in order to prove that it was an independent review.

[00:27:35] Speaker 03:
And I know I think our district course would be really upset with us if we told them that's now their standard Yeah, and it shouldn't be because the magistrate judge is properly appointed and and Lucia said but if the second decision-maker is properly appointed Why doesn't that cure the problem?

[00:27:53] Speaker 02:
Because he his decision was tainted by the first decision-maker who wasn't properly appointed and

[00:27:58] Speaker 03:
So this is we're going to carve out an area of the law that is unique to Social Security cases with the second decision maker has to have blinders on and cannot know what the first decision maker said.

[00:28:11] Speaker 03:
Only if we excise all that from the record.

[00:28:15] Speaker 02:
Only if that first decision maker was improperly appointed.

[00:28:18] Speaker 01:
That's that's a circuit split.

[00:28:20] Speaker 02:
Yeah.

[00:28:20] Speaker 01:
You're inviting us to enter into a circuit split with the Sixth Circuit in Jones Brothers.

[00:28:25] Speaker 01:
That's all I'm going to say, because Judge Gould is trying valiantly to get us to stop.

[00:28:28] Speaker 02:
Get me down.

[00:28:31] Speaker 02:
Thank you, Mr. Drew.

[00:28:32] Speaker 02:
Thank you.

[00:28:33] Speaker 04:
Thank you, counsel.

[00:28:35] Speaker 04:
OK, we'll have for butler.

[00:28:42] Speaker 05:
I have three quick points on rebuttal.

[00:28:44] Speaker 05:
First of all, in terms of the similarity in words, again, we're talking about 1,431 words from a decision that was more than 11,000 words.

[00:28:55] Speaker 05:
Judge Tallman, I think your example from the district court is instructive, and I'd also note the examples we cited in our brief.

[00:29:00] Speaker 05:
where this court has determined that it, quote, cannot improve on the reasoning of the district court and adopts the decision in full.

[00:29:07] Speaker 05:
There's no doubt that that is still a decision of this court.

[00:29:09] Speaker 05:
That's reviewable on bonk or on cert, not by appeal.

[00:29:12] Speaker 03:
District judges love it when we do that, just adopt their decision below as the decision of our court.

[00:29:19] Speaker 05:
Well, if there were doubt as to the independence of the decision maker, which is my second point.

[00:29:23] Speaker 03:
Not from this panel, no doubt.

[00:29:26] Speaker 05:
I would encourage the court to consider two crucial parts.

[00:29:30] Speaker 05:
One, there is nothing in ALJ Myers's decision saying that he deferred to the reasoning or even to the summation of the record of ALJ Kennedy.

[00:29:42] Speaker 05:
It was not the fact that it had previously been decided by another decision maker that was the utility of reproducing some of the language from the opinion.

[00:29:53] Speaker 05:
And again, the figure that I gave to the court as far as the reproduced words, we're not distinguishing among historical sources, common words, et cetera.

[00:30:03] Speaker 05:
You are not, you think we ought not do that?

[00:30:06] Speaker 05:
I'm saying when we look at the independence of a decision and we ask how much of it has been copied, the court made the point that historical material does not raise concerns.

[00:30:19] Speaker 05:
And my interest is only to clarify that when we say there is 1,431 words that are the same, we are not distinguishing between historical and other matters.

[00:30:30] Speaker 00:
I understood all that.

[00:30:31] Speaker 00:
My question was, should we?

[00:30:33] Speaker 05:
If the court believes that Cody establishes the test it does, then yes, it should.

[00:30:39] Speaker 05:
And as far as doubt of the independence, if that question is raised, I think there can be no doubt here that A.L.J.

[00:30:47] Speaker 05:
Myers examined the record.

[00:30:51] Speaker 05:
For example, on the issue of medical

[00:30:53] Speaker 05:
expert testimony.

[00:30:55] Speaker 05:
I would point to the treatment of the testimony of Nurse McClure.

[00:30:58] Speaker 05:
ALJ Kennedy gave significant weight to that opinion.

[00:31:02] Speaker 05:
ALJ Myers gave, quote, some weight to parts of the opinion and, quote, no weight to other parts of the opinion, including on the basis that it was being provided by an RN rather than a doctor.

[00:31:13] Speaker 05:
And so here no matter how the case is decided you simply cannot conclude that what we have is a continuing Appointments clause violation on the part of ALJ Myers whom none dispute was properly appointed.

[00:31:25] Speaker 04:
Thank you counsel.

[00:31:26] Speaker 04:
Thank you So that case shall be submitted on the briefs and the court will adjourn for the day