[00:00:01] Speaker 00:
and we'll call the next matter, I hope I'm getting this right, Marquat, Stone King, did I get that right?

[00:00:37] Speaker 01:
Good morning, Your Honors, opposing counsel.

[00:00:39] Speaker 01:
May it please the court?

[00:00:41] Speaker 01:
This case is about a claimant's testimony regarding the frequency and intensity of her migraine headaches.

[00:00:47] Speaker 01:
This is, of course, a Social Security claim.

[00:00:49] Speaker 01:
The judge found that the claimant does have a severe impairment of migraines.

[00:00:54] Speaker 01:
Appellant testified that she has an average of two migraines per week.

[00:00:59] Speaker 01:
She has access to an abortive medication, Sumitriptin, so when she has a migraine she takes that medication and about an hour and a half later the headache will subside, leaving behind some drowsiness and stomach ache.

[00:01:12] Speaker 01:
Of course, because of that, for that hour and a half until the medication kicks in, there's not much she can do other than lie down and wait for the headache to go away.

[00:01:21] Speaker 01:
So her medications are effective to a point, but by their very nature, they can't be taken until the migraine happens.

[00:01:30] Speaker 01:
Now, the ALJ did discuss her migraine testimony, but in essence, the judge agreed with everything she said.

[00:01:38] Speaker 01:
The ALJ explicitly found that a pellet has one to two migraines per week and that she's treated her migraines consistently with her prescription medication.

[00:01:46] Speaker 02:
Is that Imatrix, by the way?

[00:01:48] Speaker 02:
Is that what she's using?

[00:01:50] Speaker 01:
I have it down with Sumitriptin.

[00:01:51] Speaker 01:
I don't know if that's the same medication.

[00:01:53] Speaker 01:
I don't know either.

[00:01:54] Speaker 01:
I'm not as familiar with those medications as I'd like to be.

[00:01:59] Speaker 01:
The ALJ noted that appellants migraines are not intractable.

[00:02:03] Speaker 01:
An intractable migraine is one, by definition, that lasts 72 hours.

[00:02:07] Speaker 01:
So her testimony didn't say that they are intractable.

[00:02:09] Speaker 01:
There's no contradiction there.

[00:02:11] Speaker 01:
The ALJ noted that they respond to her abortive medication.

[00:02:14] Speaker 01:
Again, that's exactly what she testified to.

[00:02:17] Speaker 01:
And then the ALJ stated that her migraine headaches support limiting her to jobs where breaks are available every two hours.

[00:02:25] Speaker 01:
And that's really the point of contention here because there's just no path from a migraine that lasts an hour and a half to a break every two hours.

[00:02:37] Speaker 01:
There's no explanation for why a break every two hours would accommodate that problem.

[00:02:41] Speaker 03:
I'm puzzled.

[00:02:46] Speaker 03:
Your position now is that the ALJ didn't take this into account?

[00:02:52] Speaker 01:
Our position, ultimately, is that the RFC does not reflect this testimony, and that the ALJ did not give adequate reasons to reject that testimony.

[00:03:01] Speaker 01:
So he's got to do either one or the other.

[00:03:02] Speaker 03:
Did you raise that in your opening brief?

[00:03:05] Speaker 01:
I believe we did, yes.

[00:03:07] Speaker 03:
The testimony about having to lie down for an hour and a half?

[00:03:12] Speaker 03:
Well, we can check that.

[00:03:16] Speaker 01:
I'm sorry?

[00:03:17] Speaker 03:
We can check that.

[00:03:18] Speaker 03:
Of course.

[00:03:19] Speaker 03:
So is it ultimately, bottom line, do we have to say that that would be a disability?

[00:03:28] Speaker 01:
The court does not have to find that that would be disabling.

[00:03:31] Speaker 01:
The court could simply find that the ALJ didn't do enough to address it.

[00:03:34] Speaker 01:
And then the question would be whether there is enough in the record

[00:03:37] Speaker 01:
to establish that that would be disabling.

[00:03:40] Speaker 01:
If there definitely is, the court could remand for a directed payment.

[00:03:44] Speaker 01:
If it's unclear, the court could remand for further proceedings to fully address that testimony.

[00:03:49] Speaker 02:
Your theory, though, is that that symptom was not folded into framing the question to the vocational expert.

[00:03:57] Speaker 01:
Essentially, yes.

[00:03:59] Speaker 01:
There was a question to the vocational expert regarding time off task in a professional capacity.

[00:04:05] Speaker 01:
We do believe that an hour and a half, a few times a week, is going to involve too much time off task.

[00:04:11] Speaker 01:
But ultimately, whether that's enough as it is, is a secondary question.

[00:04:18] Speaker 03:
One of the things that we... Do we have to... Did she testify that she always gets these headaches when she's working?

[00:04:27] Speaker 01:
Well, she testified that she's still getting those headaches even though she's not working, so she obviously doesn't just get them while working.

[00:04:35] Speaker 01:
I don't believe she testified as to what time of day they occur, so there might be some question there perhaps.

[00:04:43] Speaker 01:
One of the things raised in the briefs was the question of whether the judge justifiably relied on the conservative treatment for her migraines as a reason to reject her testimony.

[00:04:54] Speaker 01:
In the first place, the judge actually didn't raise that point.

[00:04:57] Speaker 01:
He did say that her medications are effective, but that's consistent with her testimony.

[00:05:01] Speaker 01:
He did not frame the treatment as conservative.

[00:05:06] Speaker 01:
But even if we assume that that's sort of baked into his point, the case law on conservative treatment has this underpinning notion that conservative treatment is inconsistent with the allegations that are being made.

[00:05:22] Speaker 01:
And I don't think that can be reached here.

[00:05:25] Speaker 01:
The only more aggressive treatment available other than these abortive medications would be Botox.

[00:05:32] Speaker 01:
And in order to qualify for Botox, you have to have 15 migraine days per month.

[00:05:37] Speaker 01:
Per her allegations, Ms.

[00:05:39] Speaker 01:
Marquardt Stoneking has eight to nine migraines per month, about two per week.

[00:05:44] Speaker 01:
So that wouldn't qualify her for Botox, so she's doing everything she can.

[00:05:52] Speaker 01:
If there's nothing further, I'll hold my clock for rebuttal.

[00:05:55] Speaker 00:
very well in fact in rebuttal you could just confirm judge Schroeder's question about where in the brief that would be great good morning your honors Katherine Watson for the commissioner

[00:06:13] Speaker 04:
The ALJ here on CAR 27 specifically referenced Markhart-Stoneking's allegations of migraines.

[00:06:23] Speaker 04:
The ALJ specifically discussed how Markhart-Stoneking alleged that it took her about an hour, an hour and an hour and a half to respond to migraine medication.

[00:06:33] Speaker 04:
And as my counsel noted, which is correct, she's effectively alleging that during that time she was disabled.

[00:06:40] Speaker 04:
The ALJ disagreed.

[00:06:42] Speaker 04:
The ALJ specifically said in CAR 27 that Marquardt Stoneking's allegations regarding the severity of her impairments, which would include migraine headaches, are not fully reliable.

[00:06:55] Speaker 04:
And then on Car 28, the ALJ provided specific reasons as to why that under this court's precedent are sufficient to discount her testimony of debilitating migraine headaches.

[00:07:09] Speaker 04:
In other words, her testimony that she's effectively bedridden for about an hour, an hour and a half until her medication aborts her headache.

[00:07:19] Speaker 04:
So first, the Eldre noted that Margaret Stoneking treated her migraines consistently with a prescription medication.

[00:07:30] Speaker 04:
Now, I turn this court's attention to SMART.

[00:07:34] Speaker 04:
In that case, this court held that the ALJ there documented evidence of conservative treatment, and in that case it was ongoing pain medications as well as other measures following initial surgery to treat, in that case it was allegations of debilitating neck pain.

[00:07:53] Speaker 04:
Here, similarly, the ALJ documented evidence of conservative treatment.

[00:07:58] Speaker 04:
In this case, it was a single prescription medication.

[00:08:01] Speaker 04:
Now, the reason why this treatment is conservative, and I would note the ALJ didn't use the word conservative, but as in SMART, the ALJ documented evidence

[00:08:12] Speaker 04:
of conservative treatment.

[00:08:13] Speaker 04:
And this court has noted in various other contexts, magic words are not required.

[00:08:18] Speaker 04:
We have documented evidence of a conservative treatment here that the ALJ specifically relied on to discount her testimony.

[00:08:26] Speaker 04:
The reason why this treatment is conservative is because what the ALJ said, which is that she treated her migraines consistently with this medication.

[00:08:36] Speaker 04:
What does that mean?

[00:08:37] Speaker 04:
It means she never asked her doctors for a higher dosage.

[00:08:42] Speaker 04:
It means she never said, you know, it takes me an hour and a hour and a half, I'm bedridden, let me get another medication to relieve that pain for my migraines.

[00:08:51] Speaker 04:
It means she never switched medications.

[00:08:54] Speaker 04:
Instead, she treated her migraines consistently

[00:08:58] Speaker 04:
with a single medication without ever changing the dosage or the type of medication.

[00:09:04] Speaker 04:
I note she did so not only throughout the period at issue, but also even before the date that she alleged debilitating impairments.

[00:09:13] Speaker 02:
The ALJ also noted that this treatment... This medication that if it's taken on a regular basis helps to prevent the frequency of migraines.

[00:09:25] Speaker 02:
There's some suggestion in the record that maybe for financial reasons she wasn't able to consistently afford the medication.

[00:09:33] Speaker 02:
And so therefore she wasn't necessarily taking it proactively.

[00:09:38] Speaker 04:
My understanding was that this was an abortive medication.

[00:09:42] Speaker 04:
I'm not aware of any evidence in the record that she was unable to get more medications.

[00:09:49] Speaker 04:
I'd note that her primary allegations and what the medical record primarily focuses on was her knee pain.

[00:09:57] Speaker 04:
She also alleged debilitating back pain.

[00:10:00] Speaker 04:
And she had medications for those impairments as well.

[00:10:03] Speaker 04:
And I don't believe there's any evidence in the record that she was unable to obtain medications.

[00:10:09] Speaker 04:
I'd also note she did have unfortunate circumstances.

[00:10:12] Speaker 04:
She was effectively homeless, living in a forest for a period of time.

[00:10:16] Speaker 04:
And while those circumstances are certainly unfortunate, she specifically testified, and this is on CAR 27, that she said, yes, I can drive to a doctor when I need to.

[00:10:29] Speaker 04:
She said her car on car 62, she said her car was located 10 feet away from her.

[00:10:36] Speaker 04:
So there's no evidence that I'm aware of in the record that for any reason she was unable to obtain her treatment.

[00:10:43] Speaker 04:
But what the record does say is that the treatment that she had was conservative and that she never changed her treatment for her migraine headaches.

[00:10:53] Speaker 04:
DLJ also noted that treatment notes indicate that her migraine responded to this medication.

[00:11:00] Speaker 04:
Now I note that the treatment notes are very sparse.

[00:11:04] Speaker 04:
when it comes to her migraine headaches.

[00:11:05] Speaker 04:
So the LJ is looking at what the treatment record says.

[00:11:08] Speaker 04:
The LJ primarily focused his decision on what the treatment record focused on, which was her debilitating knee pain.

[00:11:15] Speaker 04:
In fact, on CAR 1526, on CAR 1531, when she informed her treatment providers that she was applying for disability benefits, she said she was doing so on the basis of her knee pain, not her migraines.

[00:11:30] Speaker 04:
So our treatment notes effectively simply state in somewhat rudimentary terms that this was effective migraines.

[00:11:38] Speaker 04:
They treat the migraines largely in passing reference.

[00:11:41] Speaker 04:
What they do indicate is that the abortive medication worked.

[00:11:46] Speaker 04:
And the ALJ also noted that in September of 2021, Margaret Stone King indicated that she had been out of her medication for a while.

[00:11:58] Speaker 04:
And as I noted elsewhere, there doesn't seem to be any reason for why she couldn't have gotten and got this medication.

[00:12:05] Speaker 04:
And I look to what the underlying medical records said here.

[00:12:08] Speaker 04:
So we have in November 2020 and in January 2021, 60 days later, she's requesting refills.

[00:12:16] Speaker 04:
We have then a complete absence of treatment from January 2021 to September 2021 when she again goes into request refills and note she's been in out of her migraine medication for a while.

[00:12:30] Speaker 04:
That's eight months with no treatment.

[00:12:32] Speaker 04:
She's alleging debilitating migraines.

[00:12:35] Speaker 04:
She said that she did not get those migraines until 2020.

[00:12:38] Speaker 04:
So we have an under two-year period where she's alleging debilitating migraines.

[00:12:43] Speaker 04:
And we have eight months in that period where she has no treatment.

[00:12:48] Speaker 04:
And within that eight months, say approximately six months, about a quarter of the period at issue, when one can infer she had no migraine medication.

[00:12:57] Speaker 04:
I turn this court's attention to Macri v. Chader.

[00:13:01] Speaker 04:
In that case, this court held that the ALJ reasonably discounted the claimant's allegations of debilitating pain when the claimant had not been taking pain medication for a portion of the relevant period.

[00:13:15] Speaker 04:
In that case, that portion was since October 1986.

[00:13:19] Speaker 04:
And the relevant period or the period at issue in that case ended in December of 1986.

[00:13:25] Speaker 04:
That's a two-month period.

[00:13:26] Speaker 04:
Here, if anything, we have a longer period.

[00:13:29] Speaker 04:
And the ALJ specifically relied on that as well when noting that she had indicated in September 2021 that she'd been out of medication for a while.

[00:13:38] Speaker 04:
So the fact that she seemed to willingly go without any sort of treatment

[00:13:43] Speaker 04:
any kind of pain medication, even abortive medication, when she's alleging that she's effectively bedridden with migraine headaches, was another reason for the ALJ to discount that testimony.

[00:13:58] Speaker 04:
It also notes that on CAR 29, the LJ considered other evidence when assessing the RFZ.

[00:14:06] Speaker 04:
So the LJ considered the only assessments of her functioning during the period at issue.

[00:14:11] Speaker 04:
There were no treatment providers that offered opinions.

[00:14:14] Speaker 04:
The state agency medical consultants considered her migraines and found that she could perform a range of medium work.

[00:14:21] Speaker 04:
And the LJ found those assessments largely persuasive.

[00:14:25] Speaker 04:
In fact, the LJ provided more limitations in the RFC to account for her knee impairment.

[00:14:31] Speaker 04:
The ALJ also considered third-party function reports.

[00:14:35] Speaker 04:
This was from her roommate as well as her father.

[00:14:38] Speaker 04:
These third-party function reports were issued in 2020.

[00:14:41] Speaker 04:
This was after she's alleging debilitating migraines.

[00:14:45] Speaker 04:
Yet neither her roommate nor her father, who saw her on a regular basis, even mentioned migraines in their function reports.

[00:14:54] Speaker 04:
The only impairment they really discussed was the main impairment she was alleging, the primary impairment focused in her treatment notes, which was her knee pain.

[00:15:03] Speaker 04:
And as EOJ noted, these third parties discussed how she could perform various activities.

[00:15:11] Speaker 04:
In fact, their treatment notes indicate, for example, Mr. Zechariah indicates she's reading, she's sewing, she's crocheting on a daily basis.

[00:15:19] Speaker 04:
They're not indicating that on days when she had migraines, she was bedridden.

[00:15:22] Speaker 04:
There's no mention of that.

[00:15:24] Speaker 04:
So the ALJ considered all the evidence when assessing the RFC and reasonably concluded that she could perform work consistent with the state agency consultant's findings, which that she could perform a range of medium work even with her migraine headaches.

[00:15:41] Speaker 04:
How old is she?

[00:15:43] Speaker 04:
She was 36 on her application date, which was in September 10, 2019.

[00:15:52] Speaker 03:
It's kind of a sad case.

[00:15:56] Speaker 03:
Is it really fair to hold it against her for not seeking treatment when she was homeless and living in other dire circumstances?

[00:16:06] Speaker 04:
Certainly it is a sad case, and she does have unfortunate circumstances, so I certainly understand the concern there.

[00:16:13] Speaker 04:
But I do believe that under our regulations, the question is, did she have a good reason not to seek treatment?

[00:16:21] Speaker 04:
I don't believe homelessness in itself is a good reason unless it prevents access.

[00:16:25] Speaker 04:
And here she specifically testified that she had access.

[00:16:30] Speaker 04:
So her own testimony refutes that.

[00:16:33] Speaker 04:
The LJ did ask her about that.

[00:16:36] Speaker 04:
The LJ asked her, where you're living, are you able to get to treatment?

[00:16:40] Speaker 04:
She said, yes, on car 47.

[00:16:44] Speaker 04:
Yes, I can drive to a doctor when needed.

[00:16:46] Speaker 04:
I believe she was asked more.

[00:16:48] Speaker 04:
This was by opposing counsel and questioning, how far away is your car?

[00:16:53] Speaker 04:
It's 10 feet away.

[00:16:56] Speaker 04:
So there's no evidence in the record that she didn't have access.

[00:16:59] Speaker 04:
Certainly her circumstances are unfortunate, but they did not prevent access based on her own testimony.

[00:17:07] Speaker 00:
All right, thank you, counsel.

[00:17:07] Speaker 04:
Thank you.

[00:17:15] Speaker 01:
Thank you again, Your Honors.

[00:17:16] Speaker 01:
A few things to cover.

[00:17:17] Speaker 01:
First of all, as to your point, Your Honor, the issue was raised, I believe, in the opening brief at page 9.

[00:17:24] Speaker 01:
We noted that the testimony was not directly addressed, and at pages 11 to 12 discussed the inadequacy of the RFC findings.

[00:17:31] Speaker 01:
So even if not expressly raised in that way, I think it's baked into the brief.

[00:17:36] Speaker 01:
So, first of all, I wanted to address this period of not treatment.

[00:17:42] Speaker 01:
I'll be candid, I don't know the details of how appellant gets her medications.

[00:17:47] Speaker 01:
I know my medications come to me by mail.

[00:17:50] Speaker 01:
I refill them every three months.

[00:17:52] Speaker 01:
I see my doctor about every year.

[00:17:54] Speaker 01:
So the fact that Ms.

[00:17:55] Speaker 01:
Marquardt Stoneking may have gone eight months between seeing her doctor doesn't mean she was without medication for that entire eight months.

[00:18:02] Speaker 01:
It might be five months.

[00:18:04] Speaker 01:
It might be two months.

[00:18:04] Speaker 01:
The record is silent as to exactly how long she had been without her medications.

[00:18:09] Speaker 01:
All she said to her doctor was, I've been out for a while.

[00:18:12] Speaker 01:
She might have run out maybe a couple weeks ago.

[00:18:14] Speaker 01:
We don't know.

[00:18:16] Speaker 01:
There's no reason to assume it was that entire eight months without medication.

[00:18:20] Speaker 01:
And even if there was, there's nothing in the record to say how bad her migraines were during that time.

[00:18:27] Speaker 01:
At worst, we could assume that after that eight months, she's had her medication consistently, and her testimony still is what it is.

[00:18:36] Speaker 01:
As to the conservative treatment case law, my colleague raised Smart Vicky Jakazi.

[00:18:44] Speaker 01:
In that case, the claimant had alleged a broken neck and crushed vertebrae, describing 10 out of 10 pain.

[00:18:50] Speaker 01:
had surgery to stabilize her neck immediately after the injury and other than that received only pain medication and physical therapy.

[00:18:57] Speaker 01:
I think that's a very different animal from a chronic illness like a migraine situation where there's really nothing you can do other than throw pills at it.

[00:19:07] Speaker 01:
The underpinnings of the SMART case are PARAVI-ASTRU, 481F3RD742 from 2007.

[00:19:15] Speaker 01:
In that case, the claimant had alleged bursitis-related knee pain, but there were numerous VA exams showing normal knee function, and he was treating it with over-the-counter medication.

[00:19:26] Speaker 01:
Again, a very different situation.

[00:19:38] Speaker 01:
Opposing counsel raised the issue that the state agency consultants considered Ms.

[00:19:43] Speaker 01:
Marquardt-Stoneking's migraines and did not offer any greater limitation.

[00:19:47] Speaker 01:
I don't think that's relevant.

[00:19:49] Speaker 01:
A claimant's testimony as to their symptoms is evidence that the judge has to consider, and the state agency consultants did not have the benefit of that testimony.

[00:19:58] Speaker 01:
Lastly, there was the issue of her activities of daily living.

[00:20:01] Speaker 01:
This is directly addressed in Ferguson v. O'Malley from a couple years ago.

[00:20:05] Speaker 01:
A person can both do these things while they are headache-free and not be able to do them while they have a headache.

[00:20:12] Speaker 01:
Unless they're alleging that they have headaches 24 hours a day, 7 days a week, there's no inconsistency there.

[00:20:17] Speaker 01:
Here, she's alleging about three hours out of the week that she's down with a headache, assuming two headaches per week, an hour and a half before her abortive medications kick in.

[00:20:27] Speaker 01:
That would still leave her 160 plus hours a week, minus however much time she spends sleeping, that she could do those activities of daily living.

[00:20:35] Speaker 01:
There's no reason to think that that's inconsistent.

[00:20:42] Speaker 00:
Thank you.

[00:20:42] Speaker 00:
Thank you, counsel.

[00:20:43] Speaker 00:
Thank you to both of you for your briefing and argument in this case.

[00:20:46] Speaker 00:
This matter is submitted.