[00:00:44] Speaker 00:
Thank you, and may it please the Court.

[00:00:47] Speaker 00:
I'm Stephanie Schuster, here on behalf of the appellant, Pearl Glover.

[00:00:51] Speaker 00:
The record in this case supports only one conclusion – that Ms.

[00:00:54] Speaker 00:
Glover is disabled and entitled to Social Security benefits.

[00:00:58] Speaker 00:
In concluding otherwise, the ALJ made two material errors, and each independently warrants reversal.

[00:01:04] Speaker 00:
First, the ALJ misread PA Shear's report as stating Ms.

[00:01:08] Speaker 00:
Glover can walk a mile without a cane, when in fact the report said the opposite, that Ms.

[00:01:13] Speaker 00:
Glover can walk a mile only with a cane.

[00:01:16] Speaker 00:
That mistake was dispositive of the ALJ's finding against Ms.

[00:01:19] Speaker 00:
Glover at step five of the analysis.

[00:01:22] Speaker 00:
Second, the ALJ misread the record as containing no evidence of either lumbar spinal stenosis or ineffective ambulation, when in fact the record shows unambiguous evidence of both.

[00:01:33] Speaker 00:
That mistake was disposed with the ALJ's adverse finding at step three.

[00:01:38] Speaker 00:
The SSA does not dispute these mistakes on appeal.

[00:01:43] Speaker 03:
So you're not making an argument about per se disability, or you are?

[00:01:46] Speaker 00:
We are under step three, Your Honor.

[00:01:49] Speaker 03:
What about the weakness problem?

[00:01:51] Speaker 00:
The weakness problem

[00:01:53] Speaker 03:
It's an independent requirement that there be a showing of weakness, right?

[00:01:57] Speaker 00:
Like weakness.

[00:01:58] Speaker 00:
Right.

[00:01:58] Speaker 00:
Pseudoclaudication is a requirement under listing 1.04C.

[00:02:01] Speaker 00:
Uh-huh.

[00:02:02] Speaker 00:
And that requires leg pain and or weakness while walking.

[00:02:06] Speaker 03:
Not and or.

[00:02:08] Speaker 03:
Pain and weakness.

[00:02:09] Speaker 00:
I think it's been defined as both, but she – I'm reading from the regulation.

[00:02:13] Speaker 00:
Okay.

[00:02:14] Speaker 03:
It says chronic, non-red, radicular pain, and weakness.

[00:02:17] Speaker 00:
Ah, I see, Your Honor.

[00:02:18] Speaker 00:
Well, a couple points on that.

[00:02:19] Speaker 03:
First, the ALJ – I don't mean that this is the most important thing, but I'd like to clear this argument.

[00:02:23] Speaker 00:
No problem.

[00:02:25] Speaker 00:
First, the ALJ did not rely upon the absence of weakness or pseudoclaudication in finding against Ms.

[00:02:30] Speaker 00:
Glover.

[00:02:30] Speaker 00:
He only stated in a single sentence

[00:02:32] Speaker 00:
that there was no evidence of stenosis or ineffective ambulation.

[00:02:36] Speaker 00:
Second, there is evidence in the record to show that she has leg weakness.

[00:02:40] Speaker 00:
Now, she had certain tests that showed she had full strength in response, but she had other tests that showed non-specific breakaway weakness, and there is repeated testimony in the record about her being unable to walk long distances without falling.

[00:02:54] Speaker 03:
So I take your point about the ALJ not relying on having the one sentence.

[00:02:59] Speaker 03:
I'm less clear on the other point.

[00:03:02] Speaker 03:
Yes, there may be some evidence on her part that there is weakness.

[00:03:06] Speaker 03:
On the other hand, there are two doctor's reports, one from 2015, one from 2013, both saying five out of five on strength.

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

[00:03:16] Speaker 03:
So it may be that there would be evidence to support a finding, but that's not our test, right?

[00:03:23] Speaker 00:
Sure.

[00:03:23] Speaker 03:
The question is whether there's evidence to support a finding that the ALJ did make, right?

[00:03:30] Speaker 00:
Correct.

[00:03:31] Speaker 00:
And the 2015 report that you mentioned, it's in the same report, that's from Dr. Marion.

[00:03:35] Speaker 00:
Yes.

[00:03:36] Speaker 00:
He also stated that she had the nonspecific breakaway weakness on manual testing and that she couldn't bear being up on her toes.

[00:03:45] Speaker 00:
In addition to saying that just in the manual test he was able to find five out of five full strength, but she still had signs of weakness in that same report.

[00:03:52] Speaker 02:
What is non-specific breakaway weakness, and is it defined in the record?

[00:03:56] Speaker 00:
It's not defined in the record.

[00:03:58] Speaker 00:
My understanding of it, Your Honor, is that it's when doing manual testing and trying to push on the arm or the leg that you can only get to a certain point, so you break away from it.

[00:04:12] Speaker 00:
But as Your Honor pointed out, that's not the reason the ALJ relied upon, and the agency doesn't dispute that on appeal.

[00:04:19] Speaker 00:
Instead, the agency speculates at both step five and step three that the ALJ could have reached the same results but for different reasons and reasons the ALJ didn't rely on.

[00:04:29] Speaker 00:
This court doesn't accept such post-hoc justifications for a denial of Social Security benefits.

[00:04:34] Speaker 00:
Following the Supreme Court's instruction in Chenery,

[00:04:37] Speaker 00:
This court affirms Social Security decisions, if at all, only when it can do so on the grounds articulated in the decision by the ALJ.

[00:04:43] Speaker 00:
The SSA concedes those grounds are erroneous here, and that alone requires reversal.

[00:04:50] Speaker 00:
Turning to the step five error, the ALJ concluded that Ms.

[00:04:53] Speaker 00:
Glover is able to both sit and stand for more than 30 minutes during an eight-hour workday, even though all of the evidence in the record about Ms.

[00:05:00] Speaker 00:
Glover's abilities to sit and stand show the opposite.

[00:05:04] Speaker 00:
Even Ms.

[00:05:04] Speaker 00:
Glover's primary medical provider, P.A.

[00:05:07] Speaker 00:
Shear, after treating Ms.

[00:05:08] Speaker 00:
Glover for eight months, concluded that Ms.

[00:05:10] Speaker 00:
Glover can either sit nor stand for more than 30 minutes during an eight-hour period.

[00:05:15] Speaker 00:
The ALJ credited the rest of P.A.

[00:05:17] Speaker 00:
Shear's assessments in her report, just not that one.

[00:05:20] Speaker 00:
The sole reason the ALJ disregarded that assessment was because he misread PA Shearer's report that Ms.

[00:05:25] Speaker 00:
Glover can walk a mile with the cane, as saying she can walk without one.

[00:05:29] Speaker 00:
That undisputed mistake requires reversal.

[00:05:31] Speaker 00:
The agency's own vocational expert testified at the hearing that there are no jobs available to a person who can't sit or stand for more than 30 minutes per workday.

[00:05:41] Speaker 02:
Ms.

[00:05:41] Speaker 02:
Schuster, did you say that the ALJ credited generally P.A.

[00:05:45] Speaker 02:
Shearer's report?

[00:05:46] Speaker 02:
I thought he didn't really credit it.

[00:05:48] Speaker 00:
He did.

[00:05:50] Speaker 00:
The only aspect of the report he appeared to discredit was the limitations on sitting, standing, and walking.

[00:05:57] Speaker 02:
Did he generally say there wasn't, you know, supporting analysis?

[00:06:01] Speaker 00:
He noted that there were – in the space for providing additional findings on the medical findings report, he noted that there were not additional findings appended, but that was not a reason he discredited any part of the report.

[00:06:13] Speaker 00:
Through his analysis, the only part he focused on and said, I can't credit, is the statement about her – Ms.

[00:06:19] Speaker 02:
Lover's limited ability to sit and stand.

[00:06:28] Speaker 02:
or do you have a response to the ALJ's determination that her eschewing physical therapy was also a factor undermining her claim of disability?

[00:06:41] Speaker 00:
To be able to use that decision against her to attend only one session of physical therapy rather than additional sessions, the ALJ was required under the regulations and case law to first find that Ms.

[00:06:52] Speaker 00:
Glover lacked a good reason for not attending more than one session, and he didn't make that finding.

[00:06:57] Speaker 00:
He didn't make that finding.

[00:06:58] Speaker 00:
He didn't explore at the hearing whether or not she had a good reason.

[00:07:01] Speaker 03:
But she gave, and that's the part I'm also not clear about.

[00:07:04] Speaker 03:
The ALJ's report makes clear that she did give reasons

[00:07:12] Speaker 03:
On page A54, Klayman stated that an orthopedist recommended physical therapy, but she was not satisfied with the services.

[00:07:23] Speaker 03:
And another one, Klayman went to a single therapy session and notified Dr. Yu that physical therapy was not effective.

[00:07:37] Speaker 03:
And then there's another place, I think, that is for the...

[00:07:42] Speaker 03:
Both of those are essentially she went once and she thought it wasn't effective.

[00:07:47] Speaker 03:
That's the reason she gave.

[00:07:49] Speaker 03:
That's not surprising that the LJ would think that one visit not effective is not enough reason to not keep going.

[00:07:59] Speaker 00:
Right, Your Honor.

[00:07:59] Speaker 00:
So she said it was not effective and she also reported to Dr. Marion in that 2015 report that not effective because it increased her pain.

[00:08:08] Speaker 00:
Either way, while the ALJ noted that in his summary of the evidence, he noted those statements that she made to various doctors, he did not find that neither of those were a good reason

[00:08:17] Speaker 00:
or that she lacked any other good reason.

[00:08:19] Speaker 00:
And he didn't explore the reason behind, what did she mean by not effective, what kind of increased pain did it cause at the hearing when he questioned her there.

[00:08:28] Speaker 00:
Instead, he just said, a bit hyperbolically, it is difficult if not impossible

[00:08:34] Speaker 00:
to believe that she would have a good reason.

[00:08:36] Speaker 00:
That's the most he said to it, and that's being generous to say he found lack of a good reason.

[00:08:41] Speaker 00:
And without that finding, he could not use Ms.

[00:08:45] Speaker 00:
Glover's decision to discredit her testimony.

[00:08:49] Speaker 03:
Even when she explains what the reason is and it seems obvious that a single visit is not going to be effective, and therefore the fact that it's not effective on one visit is not a reasonable reason?

[00:09:01] Speaker 00:
Yes, Your Honor, particularly because she said it was not effective.

[00:09:04] Speaker 00:
She also reported that it increased her pain.

[00:09:06] Speaker 00:
And because he didn't probe behind that, there could be a lot of reasons why a claimant doesn't go to a full course of physical therapy.

[00:09:14] Speaker 00:
The Seventh Circuit has recognized it could be too expensive.

[00:09:17] Speaker 00:
They don't have a way to get there.

[00:09:17] Speaker 03:
She didn't say any of those things.

[00:09:19] Speaker 03:
She said what her reason was.

[00:09:21] Speaker 00:
Well, she wasn't asked, right?

[00:09:22] Speaker 03:
Well, I don't know whether she was asked, but she told each of the doctors what her reason was.

[00:09:28] Speaker 00:
Sure, but she wasn't asked any more detail about that, and if it increased her pain, and that's another increased pain and lack of effectiveness, our grounds that the Seventh Circuit recognized in the Moon case are sufficient to be justifiable reasons.

[00:09:41] Speaker 03:
The Seventh Circuit said a single visit not effective was a reason?

[00:09:45] Speaker 00:
Yeah, it was two visits in that case, Your Honor, but they said... No other considerations in that case?

[00:09:51] Speaker 00:
Well, the point was the ALJ didn't probe behind to find out, and so they said these could be justifiable reasons.

[00:09:56] Speaker 00:
We don't know because the ALJ didn't ask.

[00:09:59] Speaker 00:
And he didn't do so here as well.

[00:10:02] Speaker 00:
But that aside, even if you find credibility problems with Ms.

[00:10:05] Speaker 00:
Glover's testimony, that still leaves P.A.

[00:10:07] Speaker 00:
Shear's report with an uncontested finding that she, that Ms.

[00:10:12] Speaker 00:
Glover can either sit nor stand for more than 30 minutes in an eight-hour day.

[00:10:18] Speaker 00:
And the agency has suggested some alternative grounds in an attempt to rehabilitate that decision.

[00:10:23] Speaker 00:
Even if it were proper for them to do so, there's still zero evidence in the record that Ms.

[00:10:27] Speaker 00:
Glover can sit or stand for longer than that.

[00:10:31] Speaker 02:
The evidence is earlier, right?

[00:10:33] Speaker 02:
There's evidence from 2011, 2012 that she has more abilities.

[00:10:39] Speaker 00:
I see my time's about to expire.

[00:10:40] Speaker 00:
Do you mind if I respond?

[00:10:41] Speaker 00:
That's fine.

[00:10:42] Speaker 00:
Okay.

[00:10:42] Speaker 00:
In 2011 and 2012, two agency doctors reviewed her medical file and opined that Ms.

[00:10:50] Speaker 00:
Glover was somehow able to sit and stand for a full six hours in an eight-hour workday.

[00:10:55] Speaker 00:
five days a week.

[00:10:57] Speaker 00:
Those conclusions are not themselves evidence.

[00:10:59] Speaker 00:
They're supposed to be based on evidence, and here they're not.

[00:11:02] Speaker 00:
There is nothing in the record to support the view that Ms.

[00:11:06] Speaker 00:
Glover can sit or stand for more than 30 minutes, much less six hours a day.

[00:11:09] Speaker 00:
And that's because they did not, in fact, physically see her or interview her?

[00:11:13] Speaker 00:
They didn't physically see her, they didn't examine her, but they also didn't explain specifically why they believe she was capable of sitting and standing for such prolonged periods of time during her work day, notwithstanding her contemporaneous report that she could only sit or stand for 30 minutes in an eight-hour period.

[00:11:30] Speaker 00:
If you have other questions, I'll reserve the rest of the time.

[00:11:32] Speaker 00:
Thank you.

[00:11:49] Speaker 01:
Good morning, Your Honors.

[00:11:50] Speaker 01:
Johnny Walker on behalf of the Commissioner for Social Security.

[00:11:52] Speaker 01:
May it please the Court.

[00:11:54] Speaker 01:
I want to start with the two errors that Council for Miss Glover identified.

[00:11:58] Speaker 01:
She first identified the reported error that the ALJ mistakenly commented that P.A.

[00:12:08] Speaker 01:
Shear

[00:12:08] Speaker 01:
had opined that this lover could walk a mile without a cane.

[00:12:12] Speaker 01:
Now, first of all, Appellants' Council characterizes that as the sole basis for the ALJ discrediting PA Shear's report.

[00:12:20] Speaker 01:
It is not.

[00:12:21] Speaker 01:
Part of the basis is obviously that PA Shear provided no support

[00:12:26] Speaker 01:
whatsoever for the opinions articulated in her support.

[00:12:30] Speaker 01:
There was an area at the end of the forum in which she was prompted to provide such findings and evidence for her conclusion.

[00:12:37] Speaker 03:
Where does the ALJ say that's the reason the ALJ is?

[00:12:41] Speaker 03:
Well, I think as Appellant's Counsel... Let me just take the question.

[00:12:44] Speaker 03:
Where is the place where the ALJ said that was the reason

[00:12:48] Speaker 03:
that the ALJ was discounting Scheer's report.

[00:12:51] Speaker 03:
I'm not saying it's not here, I just don't, didn't say it.

[00:12:53] Speaker 01:
Well, the ALJ does say, I believe the Pellants' Council acknowledged that the ALJ does note that P.A.

[00:12:59] Speaker 01:
Scheer's report is without any conclusions or evidence to support it.

[00:13:04] Speaker 01:
And she says the ALJ does not specifically identify that as a, quote, reason for his conclusion.

[00:13:09] Speaker 01:
But it is worth noting that the ALJ articulated that fact.

[00:13:13] Speaker 01:
and considered that fact in the section of his report dealing with Ms.

[00:13:18] Speaker 01:
Glover's residual functionality.

[00:13:20] Speaker 02:
I thought nobody concluded that there was no evidence to support it, because in fact, PSU was the treating physician, rather that there weren't reasons written.

[00:13:30] Speaker 02:
So that's different from the agency doctors who didn't actually meet her.

[00:13:36] Speaker 01:
Well, PSU is not a treating physician.

[00:13:38] Speaker 01:
She's a physician's assistant.

[00:13:39] Speaker 01:
She's a physician's assistant.

[00:13:40] Speaker 01:
I understand that.

[00:13:40] Speaker 02:
But she's the treating health practitioner.

[00:13:44] Speaker 01:
I will say it's not clear from the record the course of her treatment of Ms.

[00:13:47] Speaker 01:
Glover, and it's not clear from the record whether or not there was an actual examination conducted in connection with her filling out the assessment that Ms.

[00:13:55] Speaker 01:
Glover so heavily relies on.

[00:13:56] Speaker 01:
Now, the paper, the form that she provides... But nobody questioned it on that ground.

[00:14:00] Speaker 02:
The ALJ did not question it on that ground.

[00:14:02] Speaker 01:
The ALJ did question that it was not adequately supported by any findings from an examination.

[00:14:08] Speaker 01:
It didn't specifically identify it as a reason, but he articulated and considered that fact when opining on Ms.

[00:14:14] Speaker 01:
Glover's residual functional capacity.

[00:14:16] Speaker 01:
And he credited parts of the report.

[00:14:18] Speaker 01:
He credited parts of the report that were consistent with the remainder of the record, Your Honor, yes.

[00:14:28] Speaker 02:
What about the fact that Ms.

[00:14:33] Speaker 02:
Glover was given, I'm just looking for what it's called, she was given home health assistance with activities of daily living back in, was it 2013, a home health care, home health aid care plan in October of 2013.

[00:14:52] Speaker 02:
That would seem to suggest

[00:14:54] Speaker 02:
that she's got some difficulties doing for herself?

[00:14:58] Speaker 01:
It certainly suggests that she has some difficulties.

[00:15:00] Speaker 01:
I will note that that home health care aide only visited her once, I believe, a month or six months, and there's no evidence that it continued after October 2013.

[00:15:10] Speaker 01:
I mean, it certainly does indicate that she required some assistance at that time, but where

[00:15:18] Speaker 01:
Ms.

[00:15:19] Speaker 01:
Glover faults the ALJ in this instance is that the ALJ did not conclude that she must – that she is incapable of being upright for more than 30 minutes and that she must lie prostrate for six and a half hours out of an eight-hour work day.

[00:15:34] Speaker 01:
And I think that if that were the case, that the ALJ's conclusion that she is not that limited is certainly not contradicted by the fact that she had a home health aide visit her occasionally for the period of six months in 2013 and 2014.

[00:15:48] Speaker 03:
Do you want to go on to the paragraph C problem?

[00:15:56] Speaker 01:
Yes, this is the listing, I believe, Your Honor.

[00:15:58] Speaker 01:
And Your Honor noted that there are three requirements, essentially, in that listing.

[00:16:03] Speaker 01:
One is the requirement of what's called... I read the listing.

[00:16:08] Speaker 03:
My question is, as far as I could tell, there's only one sentence about this on A49.

[00:16:13] Speaker 03:
No actual explanation for the reason.

[00:16:17] Speaker 03:
Is that wrong?

[00:16:18] Speaker 01:
Well, addressing the sentence on A49 and the ALJ's opinion, Ms.

[00:16:24] Speaker 01:
Glover faults the ALJ.

[00:16:26] Speaker 01:
She says that the ALJ incorrectly concluded that there was no finding of lumbar stenosis.

[00:16:31] Speaker 01:
That's not quite what that sentence says.

[00:16:33] Speaker 01:
The sentence says that there was no finding of lumbar stenosis with accompanying ineffective ambulation.

[00:16:39] Speaker 03:
Can you tell me where we are on that page?

[00:16:42] Speaker 03:
Could you give it open now?

[00:16:43] Speaker 01:
Yes, you were referring to 849, correct?

[00:16:46] Speaker 03:
I'm referring to the sentence that says, the undersigned has also considered whether the paragraph C criteria are satisfied.

[00:16:52] Speaker 03:
In this case, the evidence fails to establish the presence of the paragraph C criteria.

[00:16:57] Speaker 01:
And I, Your Honor, am looking at page A48.

[00:17:00] Speaker 01:
This is under heading four, which discusses the listing.

[00:17:04] Speaker 01:
And it's the third paragraph up from the bottom.

[00:17:07] Speaker 01:
And what the ALJ says is that the evidence does not satisfy the criteria of 104, because it is devoid of evidence of nerve root compression, spinal arachnoiditis, and those are not disputed, or lumbar spinal stenosis with accompanying ineffective ambulation.

[00:17:23] Speaker 03:
And so is not a... I'm sorry.

[00:17:25] Speaker 03:
Are those paragraph C requirements?

[00:17:27] Speaker 01:
I believe that only the lumbar spinal stenosis is a paragraph C requirement.

[00:17:34] Speaker 01:
So lumbar spinal stenosis requires that it be accompanied by weakness, as Your Honor noted, by pseudo-calculation.

[00:17:43] Speaker 01:
I'm not going to get that word correctly.

[00:17:44] Speaker 01:
Pseudo-cladification.

[00:17:45] Speaker 01:
Thank you, Your Honor.

[00:17:46] Speaker 01:
Pseudo-cladification and by ineffective ambulation.

[00:17:52] Speaker 01:
Now, my colleague characterizes pseudo-cloudication as simply difficulty walking or weakness.

[00:18:01] Speaker 01:
That's not what it is.

[00:18:02] Speaker 01:
Judge Harvey has a footnote to this effect.

[00:18:06] Speaker 01:
It's actually, I gather, a pinching of the spinal nerve due to inflammation of the spine.

[00:18:13] Speaker 01:
So it's quite different from weakness.

[00:18:14] Speaker 01:
And it can be demonstrated by medical imaging and indeed the listing requires that it be demonstrated by medical imaging.

[00:18:24] Speaker 01:
Ms.

[00:18:24] Speaker 01:
Glover tries to get away from that by saying that it's simply pain and that it's symptomatic and can't be demonstrated by imaging when in fact it can and is required to be by the listing.

[00:18:32] Speaker 02:
The ALJ says nothing about the shortfall of necessary medical imaging to support that factor.

[00:18:39] Speaker 01:
That's correct, the ALJ notes the absence of accompanying ineffective ambulation.

[00:18:45] Speaker 02:
Whereas the evidence shows, in fact, that she could only walk with a cane, and now I'm forgetting which one, but one of the medical personnel mentioned her gait was the kind of gait of someone limping, to use the common sense term.

[00:19:06] Speaker 02:
indicating that she was in pain.

[00:19:08] Speaker 01:
That's correct.

[00:19:09] Speaker 01:
Much more is required, however, to meet the standard for ineffective ambulation that would require a finding of per se disability.

[00:19:16] Speaker 01:
As the appellate notes, the general definition supplied by the listing requires that ineffective ambulation be a form of

[00:19:24] Speaker 01:
require an assistive device that would require two hands, that is a walker.

[00:19:30] Speaker 03:
But it goes on to say that's not the only requirement.

[00:19:32] Speaker 01:
And it's not the only ruling.

[00:19:33] Speaker 01:
I acknowledge that that's not the only ruling.

[00:19:35] Speaker 01:
It is a general definition and it is certainly instructive and would certainly indicate that the use of a single cane is insufficient to meet the definition under the listing.

[00:19:44] Speaker 01:
But it does provide some other examples and the only

[00:19:50] Speaker 01:
instances in the record that Ms.

[00:19:53] Speaker 01:
Glover cites to support her meeting those examples are the notes by certain consultants that she entered their office using it by limping or laboriously, but that simply is not enough to deem Ms.

[00:20:10] Speaker 01:
Glover disabled per se and incapable of any form of work.

[00:20:13] Speaker 03:
The pseudo-autocation?

[00:20:16] Speaker 03:
Does the ALJ discuss that?

[00:20:18] Speaker 01:
The ALJ does not discuss that.

[00:20:19] Speaker 03:
Not mentioned at all, right?

[00:20:21] Speaker 01:
I don't believe so, Your Honor.

[00:20:22] Speaker 03:
So that – the lack of that isn't – we don't know whether that's a problem the ALJ found or not.

[00:20:28] Speaker 01:
We do know that he found a lack of ineffective ambulation.

[00:20:32] Speaker 01:
He did note that the record was devoid of that.

[00:20:36] Speaker 01:
And there certainly is not any indication of pseudo-cloudication, as Magistrate Judge Harvey noted.

[00:20:43] Speaker 01:
There also, as Your Honor noted, is a separate requirement for weakness.

[00:20:47] Speaker 01:
And any time – it's not just that Ms.

[00:20:49] Speaker 03:
Glover occasionally passed a strength test and patiently passed a – Her point was that that wasn't mentioned by the ALJ.

[00:20:56] Speaker 03:
Is that right also?

[00:20:57] Speaker 03:
Wasn't mentioned?

[00:20:57] Speaker 01:
It's not specifically mentioned under the part of the decision about the listing.

[00:21:03] Speaker 01:
The third independent requirement that must also be met and that has not been met, that she exhibit ineffective ambulation, is mentioned.

[00:21:13] Speaker 01:
I will note on the weakness points, as I was saying, that it's not just that Ms.

[00:21:17] Speaker 01:
Glover occasionally fails or occasionally passes a strength test.

[00:21:21] Speaker 01:
Every instance in the record in which she's administered a strength test, she's found to have full strength or five out of five strength.

[00:21:28] Speaker 01:
She's also found to have full range of motion every time she's administered such a test, and she passes a strength test without pain.

[00:21:33] Speaker 03:
And what about the point that opposing counsel mentioned in that same report, I think from Marion, about the

[00:21:41] Speaker 03:
pressing on it, I don't remember what the – sorry.

[00:21:44] Speaker 02:
Breakaway weakness.

[00:21:44] Speaker 01:
Breakaway weakness.

[00:21:45] Speaker 01:
Right.

[00:21:47] Speaker 01:
As the Palace Council noticed, it's not specified what the breakaway weakness is, what extremity, whether it's an arm or a leg, or at what point Ms.

[00:21:56] Speaker 01:
Glover broke away.

[00:21:57] Speaker 01:
What Ms.

[00:21:58] Speaker 01:
– or I'm sorry – what Mr. Marion does say is that Ms.

[00:22:03] Speaker 01:
Glover does have full strength and full range of motion based on an examination.

[00:22:11] Speaker 03:
Okay, thank you.

[00:22:12] Speaker 03:
I know she reserved the remainder of her time, but I noticed that she was five seconds over, but we'll give you two minutes.

[00:22:26] Speaker 00:
Thank you, Your Honor.

[00:22:28] Speaker 00:
Just a couple of quick points.

[00:22:30] Speaker 00:
First, on the question of ineffective ambulation, my colleague said that all that we cite is evidence of limping and walking slowly.

[00:22:39] Speaker 00:
That is not accurate.

[00:22:40] Speaker 00:
We cite a great deal of evidence showing that Ms.

[00:22:43] Speaker 00:
Glover can't ambulate effectively, starting first with how the agency defines ineffective ambulation.

[00:22:48] Speaker 00:
A person can ambulate effectively only if she can travel without companion assistance to and from a job, and only if she can otherwise sustain a reasonable walking pace to carry out daily activities.

[00:22:59] Speaker 00:
Ms.

[00:22:59] Speaker 00:
Glover can't travel without companion assistance at all.

[00:23:02] Speaker 00:
She barely leaves her house, and when she does, she never goes out alone.

[00:23:05] Speaker 00:
Global Healthcare assigned a nurse to accompany her to her doctor's appointments.

[00:23:09] Speaker 00:
And that alone is ineffective ambulation.

[00:23:12] Speaker 00:
Another example of ineffective ambulation is the inability to use public transportation.

[00:23:16] Speaker 00:
There's evidence of that in the record as well at A304, where Ms.

[00:23:20] Speaker 00:
Glover reported that she can't walk to and from the bus stop or metro station, let alone stand for as much time as it might take for the bus or train to come.

[00:23:29] Speaker 00:
That is also ineffective ambulation.

[00:23:31] Speaker 00:
Second, regarding the argument that there are no medical findings appended to P.A.

[00:23:38] Speaker 00:
Shear's report.

[00:23:39] Speaker 00:
That report was the result, as it states on its face, of a medical examination.

[00:23:44] Speaker 00:
More importantly, though, is that it came after Ms.

[00:23:47] Speaker 00:
Glover's years of treatment at Unity Healthcare, particularly, and eight months of treatment

[00:23:54] Speaker 00:
PH Shear as her primary care provider.

[00:23:57] Speaker 00:
And that range of treatment is sufficient if, sorry, apologies, if PH Shear had simply wrote on the line C-file, we wouldn't be having this conversation.

[00:24:10] Speaker 00:
So that supports the medical findings.

[00:24:20] Speaker 00:
Separately,

[00:24:22] Speaker 00:
Just to point out, pseudo-clawdication, as all of the courts that have looked at it, save the magistrate judge below, have found, is only a symptom.

[00:24:30] Speaker 00:
It is leg pain, and it can't be shown on medical imaging.

[00:24:33] Speaker 00:
And so courts do not require that.

[00:24:35] Speaker 00:
We cite that on the penultimate page of our reply brief.

[00:24:38] Speaker 00:
Thank you, Your Honors.

[00:24:39] Speaker 02:
I was just going to ask.

[00:24:42] Speaker 02:
She was seeking disability benefits based on mental health as well as physical health issues and didn't appeal based on the mental health.

[00:24:53] Speaker 02:
How does that figure in?

[00:24:54] Speaker 02:
I mean, if some of her condition, inability to

[00:24:59] Speaker 02:
go unassisted is affected by a baseline of depression and low functioning in terms of mental health.

[00:25:08] Speaker 02:
Just take her as we find her.

[00:25:10] Speaker 02:
How does that figure in if it does?

[00:25:12] Speaker 02:
It does.

[00:25:14] Speaker 00:
Did the ALJ take it into account?

[00:25:17] Speaker 00:
So when looking at the residual functional capacity to determine whether the claimant can perform additional jobs in the national economy,

[00:25:25] Speaker 00:
What you have to look at is sort of the combination of all impairments, severe and non-severe, even those that the ALJ found where she has, but they don't rise to the level severe at step two.

[00:25:35] Speaker 00:
And you look at the combination of those impairments to determine what she can do on a regular and continuing basis, 40-hour work week.

[00:25:44] Speaker 00:
So that does factor in.

[00:25:46] Speaker 00:
You don't discount the pain that's caused by depression.

[00:25:50] Speaker 02:
And as you read it to the ALJ,

[00:25:52] Speaker 02:
take that into account as a background level or?

[00:25:57] Speaker 00:
It's unclear, not in a way that specifically said this takes more, this takes less.

[00:26:03] Speaker 00:
We do point out that Dr. Marion had said that her background mental health issues do contribute to her musculoskeletal pain, and there's a lot of research to support that.

[00:26:15] Speaker 00:
The ALJ didn't specifically factor that in, but he also didn't factor it out, and that's why it wasn't the primary basis for our appeal.

[00:26:23] Speaker 03:
Okay, thank you very much.

[00:26:24] Speaker 03:
We'll take the matter under submission.