[00:00:00] Speaker 03:
Good morning everyone.

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Welcome to today's Ninth Circuit Arguments.

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I am Judge Sanchez and with me are Judge McEwen and Judge Paez.

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We are happy to have you.

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We have a few cases that have been submitted on the briefs.

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Gonzalez Rodriguez versus Bondi.

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Actually, that's the only case that made on the briefs and submission has been deferred in St.

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Clair versus County of Oconogon.

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And the first case we have is for argument is Daniel Walls versus Frank Bisognano.

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And, uh, council, you may begin.

[00:00:36] Speaker 00:
Thank you.

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May it please the court.

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My name is Etan Casalyanich and I'm representing Daniel Walls in this appeal.

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WALLS has been unable to work since October 2018 due to the combined functional effects of many severe impairments, including morbid obesity, chronic low back pain, diabetes, neuropathic pain, bilateral hip abnormalities, coronary artery disease with status post myocardial infarction, obstructive sleep apnea, hypertension, psoriasis, anxiety, and depression.

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The combined limitations from these impairments have prevented walls from performing any type of full-time competitive work.

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The ALJ aired here by improperly rejecting the medical opinions of two treating medical sources, ARNP Albertan and Dr. Novotny, and three examining medical sources, Dr. Singh, Dr. Ledesma, and Dr. Marks.

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all these medical sources opined that Walls is more limited than he was found to be by the ALJ, and the ALJ did not state any valid reason supported by substantial evidence for rejecting any of their opinions.

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Well, counsel, let me ask you this, because it seems as if the disagreement in this case is about

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something that isn't in the record one way or the other about the mobility limitations because there are several, I think the ALJ was pointing to many unremarkable findings in the record of mobility and bilateral movement and maybe

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a limp here and there, but nothing that would seem to suggest, at least in the ALJ's view, that Mr. Walls could not stand for more than 10 minutes at a time or sit for more than 30 minutes at a time.

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And so it's not that the records say he can do these things, it's just that they seem unremarkable.

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So what do we do with that on substantial evidence review?

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The biggest issue, I started with the medical evidence, which I think is a problem because the treating doctors who knew him explained why they felt he had the limitations that he had.

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And the ALJ's reasons for rejecting their opinions were not valid reasons for by substantial evidence.

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But the bigger issue, I think that's, I think, a very, very significant reversible error involves the ALJ's analysis of the issue you just brought up.

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The ALJ questioned Wall's integrity and his, I mean, basically accused him of malingering based in part on

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a report that he found on the internet that he misinterpreted.

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And so there are several different issues there.

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First, that an ALJ is required to base their opinions and their decisions on evidence in the record.

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If the ALJ wanted to rely on this additional evidence, he could have proffered it

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to Wall's attorney and stated that I proposed to add this to the record and here's why.

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And then his attorney could have responded and said, well, you're misreading it.

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But instead, it just showed up in the decision.

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And so the first problem is relying on evidence not in the record.

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The second problem is misinterpreting that evidence.

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And the third problem, which is the biggest one, is using that to conclude that Walls is a malingerer.

[00:04:23] Speaker 01:
Malingering is that that's a harsh term and you've got to have something behind it besides any of his population Mr. Janich did any of the doctors or his Providers did any of them accuse him of malingering or diagnose him as malingering or suggest that he was Exaggerating his conditions No Not to my knowledge and let me let me follow up on on judge Sanchez is

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question.

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You know, one of the things that struck me when I was reviewing this record was that the ALJ emphasizes his low back pain and then sort of points to the two doctors, Dr. Novotny and Dr. Geffen, who have different characterizations of that MRI of his lower back.

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And the ALJ seems to collapse that assessment of his low back pain with his neuropathy pain in his feet and his legs, which I guess comes from his diabetes, which is quite severe.

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The ALJ doesn't really seem, at least I couldn't find discussion in the ALJ's decision about that particular situation with his legs and the neuropathy and his feet, which really seems to, and then that seems to be based on objective evidence.

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His diabetes is nobody disputes that he has diabetes quite the numbers are quite terrible And so when he testifies that he you know it's painful when he walks And can't sit for a long time the ALJ doesn't seem to account for that am I right in the way I review the record

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I believe you are.

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One thing you did not mention in that, though, was also the hip pain, which is what Dr. Gevin found, was that he couldn't trace some of the back pain to, at least it was axial pain.

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He couldn't see that there was radiculopathy at that time.

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but he did do hip injections to see if that was helpful and it was helpful for three weeks.

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So I think the hip pain as well is something that the ALJ didn't take into account how

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hip pain and and malfunctioning hips Would impact a person's ability to to stand and sit if they weigh over 400 pounds And at times well over 400 pounds What do we agree?

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Let me ask you this the other thing the ALJ pointed to was his activities of day his daily activities and

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pointing to the fact that he would go fishing, go shopping, grocery shopping, mow the lawn.

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I can't remember what else he listed.

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But ALJ seemed to suggest that those activities seemed to suggest that he's exaggerating.

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What do I do with that?

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Well, that's a good point, and I did not represent Walsh at his hearing.

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It would have been nice, and this is part of why I believe the attorney in district court, as well as myself, concluded that this case should be rematted for a new hearing and not for the award of benefits, because I think that that is an unresolved question.

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How do you resolve that he reported to one of his doctors that he enjoyed fishing

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And he mowed.

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And then at the same time, in that very same treatment note, she reported that he was just doing terrible.

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He couldn't barely support himself from getting on the table.

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But I think that the fishing, there's no real—the ALJ never—

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brought this up at the hearing.

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Now it would have been nice if his attorney had noticed this and brought this up and said, well, it says in this report that you were fishing.

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Were you actually fishing?

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Well, I think back when I used to go fishing and you could sit down and cast your line and quite have a lovely day.

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Yeah, that's the thing.

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We don't know what the details are, and I think that's why this case should be met for a new hearing so that there could be further development of that issue.

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So I guess part of what the ALJ was relying on was these activities that Judge Pais was mentioning.

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that seem fairly different than the limitations that Nurse Albertine and Dr. Novotny say he can do.

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And then you have, I guess, an assertion at some point that he lifted a 500-pound boat and that he was not very compliant with his medication and other things.

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Why aren't those things sufficient on substantial evidence review in your mind?

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Why shouldn't the ALJ be credited with making those findings to indicate that the level of impairment that he's expressing isn't lining up with the facts?

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Well, because the ALJ didn't bother to ask him about these things and to get clarification and to develop the record by pointing out, well, it says here and it's like, yeah, I was an idiot.

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I pushed a boat and I got injured.

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And the activities overall do not, none of those activities are actually inconsistent with the opinions of RMP Albertan and Dr. Novotny because the need to lie down to relieve pain, the need to change positions, that's fully consistent with his limited activities.

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And I'm out of time.

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If you have any other questions, I'd be happy to answer them.

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We'll give you a little time on rebuttal.

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Thank you.

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Good morning, Your Honors.

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Good morning, Counsel.

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May it please the Court?

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My name is Michael Mullen, and I represent the Commissioner of Social Security in this matter.

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This case turns on the ALJ's reasonable evaluation of Appellant's subjective symptom complaints and the medical evidence, the medical opinion evidence.

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And although Appellant was limited to light work due to his obesity and other severe impairments, the alleged severity of his symptoms were at odds with the objective medical evidence, statements that were themselves inconsistent.

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His activities of daily living

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and limited noncompliant approach to treatment.

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The objective medical evidence cut against appellant's objective statements.

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Appellant alleged that he could sit and stand for only 10 minutes, again, kind of belying being able to sit and have a nice day fishing, for example, Your Honor.

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He's saying that he can only sit for 10 minutes even.

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And yet, he's also saying that he could walk for just 50 feet at a time and that he couldn't walk on his own without an unprescribed cane.

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This was simply not borne out in the record.

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There were almost no instances of appellant using a cane.

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And there were numerous and overwhelming notes throughout the record.

[00:12:11] Speaker 01:
I don't recall reading that he said he needed to use the cane all the time.

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I believe he did at page 57 of the record, Your Honor.

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I thought what he said was that if he didn't have somebody with him, that person he could lean on and have somebody, some way he could lean on something, then he would need a cane.

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Yeah, there were equivocations about that.

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I don't know if that's an equivocation, but that's what I understood the records.

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I didn't take the record to his testimony to be that he needed a cane every time he stepped out of the house or even in the house, but that there were times when he was out and about that he needed something to lean on, somebody to help him along if he was out too long.

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And so the cane provided that.

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I think that you know the one thing about the here's another thing about the king the cane that kind of bothered me which was that the LJ said that he When he went in to see his doctors for a medical report he appeared with a cane Now that's not quite to two doctors now.

[00:13:23] Speaker 01:
That's not quite correct.

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I

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Because one of those instances dealt with Dr. Geffen.

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And when he went to go see Dr. Geffen, it wasn't to obtain a medical evaluation, a medical disability report.

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That only happened on one occasion with Dr. Novotny.

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And the ALJ confuses that.

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It's like the ALJ confuses Dr.

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Dr. Geffen's situation with Dr. Novotny and that's not correct and you in your brief you say that well, that's just harmless air and that's I I would beg to differ with you on that because that's that testimony is important and

[00:14:06] Speaker 02:
I think the LJ's findings were a little bit more nuanced, and so I think what you had was the LJ identifying two instances of cane usage, the first June 2019 at page 300, and that was with Dr. Singh.

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The second was with Dr. Geffen at page 723.

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Yeah, but he didn't go see it, but the LJ says that on that occasion with Dr. Geffen, the reason why he put

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What the ALJ was suggesting, well, he was going to see a doctor who's going to evaluate his condition, do a report, and he shows up with a cane.

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And I think you're alluding... And he's suggesting by that that he's malingering.

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So I think that what you're alluding to is at page 1000 of the record where a appellant presented with an antelgic gait.

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And I think that's different from him presenting with a cane.

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So I think to some extent maybe the ALJ was discussing those

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three different medical opinions in the same breath but I think you can delineate that the ALJ was talking about cane usage with the first two and then talking about ontologic gait with respect to the the medical record of page 1000.

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Can you talk about the point of the ALJ confusing Dr. Geffen's evidence with Dr. Novotny because under our case law

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And I think under the regulations, if you have two competing medical opinions, the ALJ is tasked with deciding which one is more credible and explaining why.

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And that didn't happen here because the ALJ thought that what Dr. Geffen was saying about the MRI scans being not illuminating was what Dr. Novotny said and that Dr. Novotny was contradicting himself.

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So why is it harmless error in your view?

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Yeah, I think actually the district court did a really nice job of explaining that and saying that even though the ALJ misattributed that statement made by Dr. Geffen to Dr. Novotny, and by the way, that was understandable.

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There was a, Dr. Novotny was CC'd at the signature portion of that medical opinion, and I think that explains the ALJ's confusion on that point.

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But the district court did a really nice job of explaining that

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The inconsistency remains.

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You had Dr. Novotny relying on an MRI to support his opinion, and that MRI didn't support his opinion based on the ALJ's endorsement of the MRI interpretation that was actually done by Dr. Geffen.

[00:16:32] Speaker 01:
That's not the reasoning that the ALJ put forth.

[00:16:36] Speaker 01:
Well, I think that, for example, the ALJ was framing that as supportability when it probably related more to inconsistency because it was, again, being presented by... Let me ask you another question that I had a problem with when I reviewed this record, which as I suggested at the outset with counsel for the appellant.

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It appeared to me that the ALJ just collapses his analysis of the foot pain neuropathy

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and the lower extremity with the lower back pain.

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And he doesn't do a separate analysis of that.

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And there is no question here that diabetes was a severe condition in second prong or whatever it is.

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You know diabetes, there's a lot of evidence in there about what he suffered from was neuropathy or whatever it is, which can be very painful, extremely painful.

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And the doctor, I think it was Novotny, one of them, refers to his excessive weight, which makes it even more difficult for the guy to walk.

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Now, am I misunderstanding what the ALJ did there?

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Because there really is no analysis about the neuropathy.

[00:18:14] Speaker 02:
Well I think you have to read the ALJ's decision as a whole and so yes at step two the ALJ found that diabetes was a severe impairment as well as obesity and so the ALJ took those into account when formulating the residual functional capacity but again when you read the ALJ's decision as a whole I think the ALJ did provide analysis that spoke to diabetes and neuropathy and I can point to a couple different instances of that.

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The first is that the ALJ particularly in discussion of

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of nurse

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Albertan's opinion.

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The ALJ did a really nice job of actually explaining that there's no evidence of swelling here, which you would expect to see with diabetic neuropathy.

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Additionally, the ALJ pointed to the appellant's non-compliance with recommended treatment.

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The appellant was, at times, non-compliant with even his diabetes treatment.

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In fact, if you look to page 315, he was not taking diabetes medication.

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against medical advice.

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And that is itself an independent reason supported by substantial evidence for the ALJ to discount appellant subjective symptom statements.

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That also was inconsistent with Dr., I'm sorry, rather, Nurse Albertin's opinion, as well as Dr. Novotny's opinion.

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And so I think, again, when you read the ALJ's decision as a whole, the ALJ did touch on some of the concerns that you pointed to, Your Honor.

[00:19:42] Speaker 01:
Did the ALJ rely on the non-compliance with the diabetes?

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Is that discussed in the ALJ's opinion?

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Yes, Your Honor.

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At pages 27 and 31 of the decision, of the record, in the ALJ decision, the ALJ talked significantly about that non-compliance with treatment.

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And consistent with this court's precedent in Bonnell,

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That is a valid reason for an ALJ.

[00:20:07] Speaker 01:
I don't remember.

[00:20:08] Speaker 01:
I read the transcript a while ago, but did Mr. Walz offer an explanation as to why he stopped taking his medication, or whatever the complaint is?

[00:20:23] Speaker 01:
I don't recall.

[00:20:24] Speaker 02:
Yes, Your Honor.

[00:20:25] Speaker 02:
Actually, the record spoke for itself.

[00:20:26] Speaker 01:
You have multiple... No, I mean at the hearing.

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Did Mr. Walls testify as to why?

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Or was he asked?

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Why did you...?

[00:20:33] Speaker 02:
No, it's reflected in the medical record, I believe.

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So for example, at page 795 of the record, he says that, I don't take medication because I, quote, hate pills.

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And then similarly, he left a hospital against medical advice because they were going to restrict his eating.

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And again, if you look to this court's precedent in Molina,

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Yes, there might be good reasons for a person not to follow treatment advice, but having your food restricted and not liking to take pills are not good reasons to not follow medical advice in the face of alleged disabling, debilitating symptoms.

[00:21:12] Speaker 03:
Let me let me ask you the question that I started with your friend on the other side and that is I was trying to see in the record if there's something that speaks more directly to whether It supports or refutes the notion that mr. Walls can't stand for more than 10 minutes or sit for more than 30 minutes and I think the government's

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argument is mainly that you have all these doctors visits that say tandem gate and there's the absence of any mention of a mobility impairment is that but it doesn't say anything else one way or the other and so it doesn't necessarily directly disprove that you know that he can't do these things but it doesn't shed light on it otherwise and

[00:22:01] Speaker 03:
And if I'm right about this, is it the government's view that if these mobility impairments existed, you would think that it would have shown up somewhere in the record and so therefore the ALJ should be supported for that reason?

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Am I characterizing the government's position correctly or no?

[00:22:20] Speaker 02:
I think that's fair.

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And in fact, the ALJ is entitled to draw inferences from the record based on this court's precedent in McCree.

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And here you had, I believe discussed at page 31 of the record, you have the ALJ identifying numerous records of appellant basically demonstrating normal gait.

[00:22:38] Speaker 02:
And again, that's not consistent with someone who has debilitating mobility issues as a result of either their low back pain or their hip or maybe diabetic neuropathy.

[00:22:46] Speaker 02:
I mean, it spoke to all of that.

[00:22:47] Speaker 02:
Really the the consistent ability of appellant to demonstrate normal gait throughout much of the record is simply at odds with the alleged severity of a subjective symptom complaints and I Am out of time if you have any other questions your honor.

[00:23:01] Speaker 02:
I'd be happy to answer them No, no other questions.

[00:23:04] Speaker 03:
Thank you.

[00:23:05] Speaker 03:
Thank you Mr.. Units will put two minutes on the clock for you for rebuttal Thank you

[00:23:16] Speaker 00:
You know, with regard to that issue that.

[00:23:19] Speaker 00:
Involving the difficulty, the or the gate issue.

[00:23:26] Speaker 00:
Even AI and P. Albertan didn't talk about his gate.

[00:23:30] Speaker 00:
She talked about his endurance.

[00:23:31] Speaker 00:
She talked about he couldn't stand for more than 10 minutes because he would start to experience back pain.

[00:23:37] Speaker 00:
She would talk about his need to lie down during the day because he couldn't tolerate any position.

[00:23:45] Speaker 00:
The issue here with with regard to be able to walk into a medical office and walk out of the medical office isn't the issue.

[00:23:52] Speaker 00:
The issue is can he do it for any kind of length of time?

[00:23:57] Speaker 00:
So I don't think we're really disputing that he was able to walk into these offices and was not observed at many of these visits.

[00:24:04] Speaker 00:
He is gay was normal for a few minutes.

[00:24:06] Speaker 00:
That's not a very long walk, but to be able to do it to be on your feet for a full day to be able to perform light work is could not be done with the combination of parents, including that she pointed out that.

[00:24:21] Speaker 00:
One of the things you might mention was that he has to elevate his right leg throughout the day.

[00:24:27] Speaker 00:
His right ankle would swell after he stands for 60 minutes.

[00:24:30] Speaker 00:
Well, that's a lot of standing right there, but the point being that that was in 21.

[00:24:35] Speaker 00:
The other thing is that my opposing counsel mentioned his limitation to standing 10 minutes.

[00:24:45] Speaker 00:
There are time periods where his weight was up to 500 pounds and he could barely stand and walk at all.

[00:24:50] Speaker 00:
Then there were times where his weight got down some and he could walk a little bit more.

[00:24:55] Speaker 00:
That report from him was consistent with the reports from Dr. Novotny and nurse practitioner Albertin that he was at a time where he could only stand

[00:25:07] Speaker 00:
for 10 minutes or walk for 10 minutes because that was a bad period for him where it was hard and because of the neuropathic pain.

[00:25:16] Speaker 00:
The last thing I wanted to mention is with regard to the diabetes medication, he's really shown some very poor judgment in taking care of himself.

[00:25:25] Speaker 00:
That's pretty apparent from this record.

[00:25:27] Speaker 00:
He left the emergency room and then ended up having a heart attack not that long afterwards.

[00:25:34] Speaker 00:
He would be, if he were wise, if he were

[00:25:37] Speaker 00:
caring for himself properly, he would have been taking that medication.

[00:25:41] Speaker 00:
But his poor compliance is directly linked to his poor insight into the severity of his medical conditions.

[00:25:50] Speaker 00:
I don't think that should be held against him.

[00:25:52] Speaker 00:
Thank you.

[00:25:53] Speaker 01:
Did you have a question?

[00:25:55] Speaker 01:
No, he answered it.

[00:25:56] Speaker 03:
Okay.

[00:25:56] Speaker 03:
Council, thank you both for your helpful arguments.

[00:25:58] Speaker 03:
The matter will stand submitted.