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Case number 20-5263, Maria A. Saunders, a ballot, versus Andrew Saul, Commissioner, SSA.

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Ms.

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Banna for the ballot, Mr. Walker for the appellee.

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Good morning, Ms.

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Banna.

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We'll hear from you.

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Thank you, Sarah.

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May it please the court?

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My name is Tina Bana.

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Today, I beg for justice for benefits for Mrs. Maria Saunders.

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We're before you today because the Social Security Administration faced with insolvency has lost sight of its mission.

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The agency believes it must save the trust fund by denying meritorious disability claims, appropriations,

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of the job of Congress, but Congress has given this agency the job of ensuring that Americans who have paid this insurance, their disability insurance, receive that income if they in fact become disabled.

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And Ms.

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Saunders has.

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And we also need to point out at the beginning that

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The Social Security Act is a remedial statute.

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Consequently, the benefit of that out belongs always to the claimant.

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Under the Social Security Act, a claimant only needs to show 12 months of disability.

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And Ms.

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Saunders has done that on the basis of the well-supported opinions of her treating physicians.

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Further, she showed that by November 2017, her clinical findings met the requirements for automatic disability under then listing 1.04.

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Further.

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Counsel, can I ask you a question about the treating physician opinions?

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with respect to the, to Dr. Williams, I guess was really kind of her primary care physician.

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Is that right?

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Um, a number of times he saw her perhaps four or five times during the course of that 12 month period after her fall.

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And each time he seems to say, you know, she has, you know, certain symptoms.

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And then he'll say at the end,

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she can return to work in six weeks or she can return to work on X date.

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Is that the equivalent of an opinion that he's saying that he believes that her symptoms will subside by that time such that she will be able to do her job?

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Is that the way that those opinions should be interpreted?

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I think that they are best interpreted, because those opinions came in the context of workers' compensation, best interpreted as, I believe that, yes, that is an opinion.

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I believe that she will have improved enough in six weeks, but I'm going to check.

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You'll notice that each time they saw her before the next period ran out, I'm sorry, the period of the

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opinion so that what they're doing is extending it.

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Okay well that did confuse me because I thought that that there were instances where he gave such an opinion but he doesn't see her again until after that time period had

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had passed.

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So like when he saw her on January 29th, he says she should be unable to work at all until February the 17th.

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But he does not see her again before February 17th.

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He doesn't see her again till April the 2nd.

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Right.

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So I guess I'm just trying to understand what your view is of how

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the ALJ should have interpreted those opinions.

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Those are workers compensation opinions are.

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I don't want to say this is my opinion until you hear from me again.

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It's the way those work because the.

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Workers Compensation Board in District of Columbia

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continues to move forward, to move benefits forward and to continue to pay until they decide not to.

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So it's sort of checking in with the doctor, the doctor is checking in with the workers' compensation board.

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The workers' compensation board at the same time is also checking with other doctors.

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You saw Dr. Brokaw, you saw

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The doctor who I believe is Dr. Concepcion.

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But it's a rolling, we'll be in touch kind of opinion.

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All right.

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I didn't want to divert you from your argument, but I was trying to understand just how those opinions should be interpreted.

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You can proceed.

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I hope that helps.

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Yes, I was also concerned in terms of interpretations that perhaps I had not been entirely clear.

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When the ALJ found that Mrs. Saunders could return to what she called past relevant work as generally performed, she was really using some other job for the dictionary of occupational titles.

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that did not involve the major tasks Ms.

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Saunders had, Ms.

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Saunders' actual work, and she couldn't do that.

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Social Security Rule 8261 specifically states the dictionary cannot be relied on for jobs it doesn't list.

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And as the expert himself said at hearing, it could only come sort of close.

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And Council, I take it that

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there was nothing in introduced in the record of like, um, like a job description that the employer had for, you know, hiring somebody into this position.

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Um, there was nothing like that, that was ever introduced in the record.

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There's Ms.

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Saunders testimony.

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Yes.

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That's typically what's used.

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Okay.

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Unless there's reason to doubt it.

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Um,

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So the bus monitor job is not her job.

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We know that.

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The social security ruling 00-04P requires the ALJ to use the actual exertional level of the occupation.

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There are cases, and the agency has cited some, where the ALJ can carve out tasks.

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if they are peculiar to an individual's specific job, such as a secretary who's also expected to care for the boss's very active toddlers.

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That's not generally part of a secretary's job.

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So that can be carved out.

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In this case, however, Mrs. Saunders' job as she actually performed it was generally

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performed exactly the same way in the national economy.

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I think the lead case there is probably Deloach and it specifically holds that the past relevant work used by the ALJ, past relevant work as generally performed must include the actual tasks of the job

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Deloitte is interesting here too, because it also holds that a climate may overcome any rebuttable presumption created by the dictionary by showing that the actual job was never contemplated by the compilers of the dictionary in 1991.

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Mrs. Saunders' job was not created until 2006 under the transportation regulations.

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of the Individuals with Disabilities Education Act.

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Now you argue that there was another job classification that was more like a... Child care attendant, Sarah.

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Yeah, that that was really kind of a more relevant job description.

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Yes, and it follows the 004P.

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You have to use the

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correct exertional level and it follows 8261 the major tasks have to be reflected.

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The child care attendant position that came from the vocational specialist at the state agency reflects both taking care of handicapped children and

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getting them onto buses, helping them move around.

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That's very close.

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So that job could be used.

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But of course the ALJ didn't mention it.

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The vocational specialist first said that the bus attendant was the closest, but then you say on reconsideration,

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He said that the child care attendant was the closest.

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Not exactly.

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It's two different people.

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Two different stages.

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At the first stage, at the initial stage, there is a set of doctors and a vocational specialist.

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And then

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that both of those decisions are reviewed on reconsideration and it's on reconsideration that you see the vocational specialist say bus attendant, the child care attendant and the medical doctor there is Dr. Hampel.

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But it's just two different stages.

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Just like the next thing that would happen is it would go to an ILJ and there would be a vocational expert.

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All right, any questions from the panel?

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Yeah.

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All right, we'll give you a couple of minutes on rebuttal.

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Let's hear for counsel for the commissioner, Mr. Walker.

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Thank you, Your Honours, and may it please the Court, Johnnie Walker, on behalf of the Commissioner for Social Security.

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I would like to clarify some of the discussion that was just underway regarding at what point during the proceedings the various opinions or possible entries in the dictionary of occupational titles were introduced.

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So my friend has

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highlighted the child care attendant that was introduced not by a vocational expert by Dr. Hemphill in considering the reconsideration of Ms.

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Saunders denied claims relatively early in the proceedings.

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Later in the proceedings when there was actually the hearing before the ALJ,

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the vocational expert, the qualified vocational expert, only introduced one possible dictionary of occupational titles entry, and that was the bus attendant position.

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It's also worth noting that Dr. Hemphill not only highlighted that childcare attendant

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title, but also a bus monitor title.

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And as we've explained in our brief, we think to the extent that we're going to ignore what the actual qualified vocational experts said and the substantial evidence that that gave the ALJ

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to reach her conclusion, which the Supreme Court has recognized in the B stake decision.

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But Dr. Hempel, early in the proceedings, in addition to the childcare position, also described the bus monitor position, which actually we would submit much more closely describes the duties that Ms.

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Saunders actually performed.

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Riding on a bus, maintaining discipline on the bus, assisting children on and off the bus.

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The childcare attendant position that Ms.

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Saunders has highlighted involves

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duties far outside.

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What the record shows Miss Saunders actually what does the record show helping kids on and off the bus means?

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Well, we know that Miss Saunders testified that one of her duties were to assist wheelchair students door to door and operating the lift to get that wheelchair on the bus and that she would occasionally have to lift

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wheelchair.

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And it was because of that that the ALJ determined that her position as she actually performed it was heavy duty.

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So to get a wheelchair from door to door, these aren't all motorized wheelchairs, right?

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She had to push wheelchairs, might have to get them up over a curb.

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Yes, you're right.

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And this is part of why sort of the

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Entry in the DOT that the vocational expert testified about at the hearing was a light duty position.

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Um, and what the ALJ determined was that the position as Ms.

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Saunders actually performed it was a heavy duty position because of precisely the sort of work that your honor just highlighted.

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The question is what I'm trying to get at though, is how can you do that if you can't lift more than 10 pounds?

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or even or push more than lift, lift 10 to 20 pounds occasionally.

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And they said, push no more than that as well.

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I mean, I've had to push people around on wheelchairs.

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And even if you've got children, how can you do that safely so that you don't endanger the child if, if that's all you're capable of?

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Well, Your Honor, you cannot.

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And that's what the ALJ found, that Ms.

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Saunders could not perform the duties of her job as she actually performed it, which was at the heavy level.

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But there are two parts to this question.

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One is whether or not Ms.

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Saunders could have performed the job as she actually performed it.

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And the other question is whether or not she could have performed that type of job as it's generally performed in the economy.

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And the bus attendant position that the vocational expert identified at the hearing as it's generally performed in the economy is at the light duty.

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And the ALJ determined based on the medical evidence that Ms.

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Saunders could perform work at a light duty level.

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And what bus attendant jobs are there for people who wouldn't have to push somebody around?

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I mean, what bus attendant jobs are there in the economy for somebody who can only lift 10 to 20 pounds or push 10 to 20 pounds?

[00:16:06] Speaker 03:
Well, I mean, that's precisely what the, I mean, there's no obligation to identify a specific position or a specific available positions.

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The question is just whether or not this type of work is generally performed in the economy.

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And what we had at the hearing was a highly qualified qualifications unchallenged vocational expert who testified that the miss Saunders is position fits within the entry for the bus attendant position and that those position the direction dictionary of occupational titles established that that position is performed in the national economy.

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at the light level and therefore could have been performed by Miss Saunders.

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So for that reason, Miss Saunders was able to perform the duties of her prior position as it's generally performed, even if not as she generally performed it.

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And it's important to note that, you know, this is not something that the ALJ came to on her own.

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There was a qualified occupational expert who testified at the hearing.

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And as the Supreme Court said two years ago in the B stake position decision, the testimony of a qualified occupational expert at an ALG hearing is precisely the type of substantial evidence that an ALJ is entitled to rely upon.

[00:17:20] Speaker 01:
I understand all that, but I don't know of any position like that.

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that anyone could be hired for.

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And I haven't heard you tell me where you think anybody could find such a job.

[00:17:34] Speaker 01:
Well, you're right.

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I mean, that's not part of the showing that's required.

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I mean, what the Dictionary of Occupational Titles establishes is that that is the general duties of this occupation, as it's generally performed, and that Ms.

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Saunders can perform it.

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And if that's shown, then she's not disabled.

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Mr. Walker, can I ask you a question?

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The ALJ here, a lot of the reasoning and the opinion discusses whether a disability existed as of the time of the hearing.

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And I'm wondering if it was error for the ALJ not to make a specific determination about whether a disability existed at the one year mark.

[00:18:18] Speaker 03:
Um, it was not I mean what Miss Saunders was requesting was a continuous disability and there's also ample evidence in the record that we've highlighted that there was no disability at the one year record at J a 81 to 82 or physician clear search return to work within days.

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Dr bro call examined her.

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and determined that she had no restrictions necessary since May 2014.

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So where someone seeks a continuous disability, the agency doesn't have to show that the disability existed at the one-year mark?

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Is that correct?

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That's the required showing, but the ALJ here was, I mean, the required showing is 12 continuous months of disability, but certainly there's no obligation on the ALJ to specifically analyze that.

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She's considering the application package that Ms.

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Saunders has submitted, which is for continuing disability.

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But she does examine, she certainly examines medical records throughout the entire course of, since Ms.

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Saunders has fallen in January, 2014, up through the hearing.

[00:19:27] Speaker 01:
Um, I have a question about, um, Dr. Um, I guess it's Dr. Lieberman or Lieberman gave, um, an opinion on, I guess he saw her on December 31st, 2014.

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This is at JA 204.

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November, I believe your honor.

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Um,

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Yeah, it's a little confusing.

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I'm just going by the date at the top of the document, but you could very well be right.

[00:20:05] Speaker 01:
And he says that I think she most likely has post-traumatic myofascial pain syndrome, which has become chronic.

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She is completely disabled because she cannot walk, stand or sit for more than a brief period of time.

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in this condition is due to her fall in January 2014.

[00:20:31] Speaker 01:
I did not see this opinion discussed at all in the ALJ opinion.

[00:20:36] Speaker 01:
Did I miss that?

[00:20:38] Speaker 03:
Well, Your Honor, what the ALJ does, the ALJ discusses the opinion of each one of these doctors.

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There's no requirement for the ALJ to discuss each individual document in which an opinion appears.

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So with respect to

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Dr. Lieberman, the ALJ does discuss the final medical record in the record, which would be the November 2014 entry, discusses that Dr. Lieberman misses that.

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At JA7, she does discuss the November 2017 determination that she's permanently disabled.

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She explains how she's weighing Dr. Lieberman's conclusion and why she determines to give it no weight.

[00:21:28] Speaker 01:
That's a different, I guess that's a different opinion.

[00:21:33] Speaker 01:
I mean, I take your point, but I think that's a different opinion than JA204.

[00:21:45] Speaker 03:
I believe it's the opinion from the same record.

[00:21:47] Speaker 03:
I mean, she notes that that he does apply that she's it's from the November 2017 visit she notes that he has an opinion that she's permanently disabled.

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She acknowledges that he's treating source that finds the opinion vague and and and gives it no way for that reason.

[00:22:01] Speaker 03:
So the LJ certainly discusses.

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And I mean, there's at the end of the day, your honor.

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I mean, there are

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there are a number of different, a diverse array of opinions in this record.

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Some from Ms.

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Saunders is treating physicians that are contradicted.

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For example, Dr. Williams, who fills out a disability certificate in September, 2017, saying that Ms.

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Saunders can hardly lift or carry objects and can hardly stand for even an hour.

[00:22:32] Speaker 03:
But three months before that, she sees Ms.

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Saunders and notes that she is

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Three months before that, examines Ms.

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Saunders made findings that she had a normal gait, full strength, normal tone in her arms and legs, no distress, full range of motion without pain.

[00:22:53] Speaker 03:
And during two visits prior to that, two months apart, he made similar findings and specifically documented that she had, quote, no back pain.

[00:23:00] Speaker 03:
Those are at JA 297, 288, and 294.

[00:23:05] Speaker 03:
So there was a number of different opinions in this record, some finding some of which are consistent with the finding of disability, some of which are a finding of that Miss Saunders could work with no restrictions.

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And the ALJ here reasonably cut a middle path through those and found that Miss Saunders could work with life duties.

[00:23:25] Speaker 03:
So if there are no further questions, please affirm.

[00:23:35] Speaker 01:
Um, I guess Council, I'm trying to understand your point about JA7 and you're saying that that addressed what I was talking about as far as Dr. Lieberman's opinion from 2014 that's at JA204.

[00:23:59] Speaker 01:
Right, Your Honor.

[00:23:59] Speaker 01:
What the ALJ mentions

[00:24:02] Speaker 01:
at JA7 from Dr. Lieberman was an opinion offered by him in November 2017.

[00:24:09] Speaker 03:
Your honor, the point that I'm trying to make is that Dr. Lieberman, I mean, he saw Ms.

[00:24:14] Speaker 03:
Saunders regularly and he largely repeats the same opinion each time that he sees her.

[00:24:20] Speaker 03:
The ALJ is not required to address each individual visit and each individual time that a medical provider articulates an opinion.

[00:24:29] Speaker 03:
What the ALJ has judiciously done here is to take the most recent medical record as of the time of the hearing, which expresses

[00:24:38] Speaker 03:
Dr. Lieberman's opinion that Ms.

[00:24:42] Speaker 03:
Saunders has been totally disabled since the time of her accident in January 2014.

[00:24:47] Speaker 03:
So Dr. Lieberman's opinion is considered.

[00:24:50] Speaker 03:
I mean, the mere fact that every medical record is not mentioned in this decision does not mean it was not considered.

[00:24:55] Speaker 03:
The opinion is what has been considered and the ALJ has explained why she provided it the way that she did.

[00:25:05] Speaker 03:
I note that there's a similar application with respect to Ms.

[00:25:10] Speaker 03:
Saunders' argument that some of the opinions of Dr. Williams has been ignored.

[00:25:16] Speaker 03:
I mean, Your Honor noted that Dr. Williams would provide these successive notes, you know, excusing Ms.

[00:25:23] Speaker 03:
Saunders from work for periods of a time.

[00:25:26] Speaker 03:
And now the ALJ doesn't have to consider each one of those notes.

[00:25:28] Speaker 03:
The ALJ looked at a letter that Dr. Williams provided towards the end of his closer to the hearing, saying that his opinion is that Ms.

[00:25:35] Speaker 03:
Saunders was permanently disabled during that entire extended period of time.

[00:25:39] Speaker 03:
So each individual document doesn't have to be considered the opinions or what should be considered in the ALJ.

[00:25:44] Speaker 01:
All right.

[00:25:48] Speaker 01:
Any other questions?

[00:25:51] Speaker 01:
No.

[00:25:52] Speaker 01:
All right.

[00:25:53] Speaker 01:
Thank you.

[00:25:56] Speaker 01:
Ms.

[00:25:56] Speaker 01:
Banna, I think you were out of time, but we'll give you two minutes on rebuttal.

[00:26:01] Speaker 00:
Okay, fine.

[00:26:02] Speaker 00:
Thank you.

[00:26:03] Speaker 00:
First of all, much of what Mr. Walker had to say was, as usual, post hoc.

[00:26:09] Speaker 00:
I would like to address specifically, yes, there is a requirement, ma'am, that the judge actually look at

[00:26:18] Speaker 00:
consider or articulate if there's a serious question about a 12 month duration and you will find it in What's referenced in the program's operations manual system?

[00:26:33] Speaker 00:
at DI 25505.030, but it's also referencing Social Security ruling 8252 also

[00:26:49] Speaker 00:
There's so many mistakes.

[00:26:51] Speaker 00:
Okay, major mistake number two was that he's, Mr. Walker says that the judge does not have to address every opinion.

[00:27:04] Speaker 00:
The judge must address every opinion that

[00:27:10] Speaker 00:
conflicts with the judge's conclusion.

[00:27:13] Speaker 00:
That is in Social Security ruling 96-8P, near the end, but it's repeated several other places.

[00:27:21] Speaker 00:
That's the most prominent one.

[00:27:24] Speaker 00:
Of course, they can be grouped, but you have to be careful when you're grouping because you're talking about 2014, you're talking over there, 2017 over here, and the different timeframes, different symptoms.

[00:27:41] Speaker 00:
The expert qualifications.

[00:27:46] Speaker 00:
Yes, Mystic says that experts are experts.

[00:27:50] Speaker 00:
Mystic doesn't say that they're infallible.

[00:27:52] Speaker 00:
Thank goodness.

[00:27:54] Speaker 00:
And he made a mistake.

[00:27:55] Speaker 00:
He just forgot.

[00:27:57] Speaker 00:
And yes, sir, they do.

[00:28:01] Speaker 00:
They have to help children who are walking on double braces in fall.

[00:28:06] Speaker 00:
These are special needs children.

[00:28:10] Speaker 00:
Light.

[00:28:12] Speaker 00:
Mr. Walker's confused about light work.

[00:28:21] Speaker 00:
The judge could not find this work was light.

[00:28:25] Speaker 00:
First of all, because she's using a dictionary of occupational titles job that is not, obviously not Ms.

[00:28:31] Speaker 00:
Saunders job.

[00:28:33] Speaker 00:
Second of all, under 004P,

[00:28:41] Speaker 00:
It specifically says you cannot take an occupation and say medium and then call it light, which is exactly what happened here.

[00:28:55] Speaker 00:
Occupations are funny.

[00:28:58] Speaker 00:
If the dictionary of occupational titles, if you look at those

[00:29:02] Speaker 00:
The first three digits of those ridiculously long numbers, those denote the occupation.

[00:29:10] Speaker 00:
In this case, the childcare attendant that you asked about is the first three digits of 355.

[00:29:17] Speaker 00:
That means health attendant.

[00:29:22] Speaker 00:
The job designation for the bus monitor is 372, which is for security guards.

[00:29:32] Speaker 01:
All right.

[00:29:33] Speaker 00:
All right.

[00:29:35] Speaker 01:
I think we have your argument.

[00:29:36] Speaker 01:
We will take the case under submission.

[00:29:39] Speaker 01:
Thank you.