[00:00:01] Speaker 01: Case number 23-5186, Kaitlyn E. O'Hare, a balance versus Martin O'Malley, commissioner of social security. [00:00:10] Speaker 01: Ms. [00:00:10] Speaker 01: Bena for the balance, Mr. Littman for the appellee. [00:00:22] Speaker 04: Good morning. [00:00:23] Speaker 04: My name is Christine Bena. [00:00:25] Speaker 04: I'm here today representing Kaitlyn O'Hare, [00:00:29] Speaker 04: We want to emphasize just two points quickly. [00:00:33] Speaker 04: We're asking you to find Ms. [00:00:35] Speaker 04: O'Hara disabled, but we're not asking you to weigh evidence. [00:00:40] Speaker 04: You won't, so I don't. [00:00:44] Speaker 04: With controlling physician's orders and opinions and uncontradicted sworn testimony, Ms. [00:00:52] Speaker 04: O'Hara established her disability as of December 8, 2012 by law. [00:00:58] Speaker 04: It's uncontested that she [00:01:00] Speaker 04: collapsed at work on December 8, and that there were uncontested doctor's orders and an unsuccessful work attempt until about mid-March of 2013. [00:01:11] Speaker 05: Well, you said there were uncontested doctor's orders, but I think the order you're referring to said until further consultation, a few days. [00:01:22] Speaker 04: I'm referring to the very first ones when she went to the hospital. [00:01:29] Speaker 04: She was in and out, and they just wrote, she's in and out. [00:01:34] Speaker 04: I'm not talking about the ones that are contested later. [00:01:40] Speaker 05: But you say in your brief that she was ordered to stay in bed for an extended period, but I don't see the order saying that. [00:01:48] Speaker 05: You don't see, I'm sorry? [00:01:49] Speaker 05: I do not see an order so directing her. [00:01:53] Speaker 04: Oh. [00:01:56] Speaker 04: No, no, no. [00:01:58] Speaker 04: There's not an order directing her. [00:02:02] Speaker 04: The only thing that is in paper. [00:02:04] Speaker 05: Well, you say in your brief on page three of the reply brief that she was disabled from March 2013 until May of 2014 under doctor's orders because her primary care physician ordered her to stay on partial bed rest for 14 months. [00:02:25] Speaker 05: But the cited document from Dr. David ordered her until further medical evaluation can be completed, which does not support an order to stay on bed rest for 14 months. [00:02:39] Speaker 04: Yes, ma'am. [00:02:40] Speaker 04: That's entirely correct. [00:02:42] Speaker 04: There are a series of communications with her employer. [00:02:57] Speaker 04: And I'm afraid in the official record, they are not in order. [00:03:03] Speaker 04: But it's back and forth. [00:03:08] Speaker 04: She's still on bed rest and her doctor is communicating. [00:03:14] Speaker 04: But it doesn't matter very much how long that went on because about two weeks later after she was put on partial bed rest, [00:03:26] Speaker 04: by Dr. David, her primary care physician. [00:03:31] Speaker 04: She saw a cardiologist and the cardiologist, according to her, I'm sorry. [00:03:43] Speaker 04: Her cardiologist advised her to elevate her legs to relieve the blood pooling that was going on in her feet. [00:03:53] Speaker 04: And that was her uncontradicted testimony [00:03:57] Speaker 04: His notes for that date also reflect a discussion of therapeutic options for which this would have been one. [00:04:06] Speaker 04: The other, of course, would obviously have been the compression stockings. [00:04:11] Speaker 04: But his orders were never rescinded. [00:04:17] Speaker 05: Which doctor are you referring to and what page are you referring to? [00:04:23] Speaker 04: I believe it is Joint Appendix 292. [00:04:27] Speaker 04: ECF 179 at seven. [00:04:31] Speaker 04: I don't know which doctor that is, I'm afraid. [00:04:38] Speaker 04: I believe that's one where there's also present an intern or something. [00:04:52] Speaker 04: And I believe it's at 292. [00:04:59] Speaker 05: You said you had two points. [00:05:03] Speaker 04: Oh, he just talks about discussed therapeutic options. [00:05:08] Speaker 04: He doesn't list them. [00:05:11] Speaker 04: But this is compression stockings and elevating your feet above heart height are standard advice for people with postural orthostatic hypertension. [00:05:28] Speaker 04: And she has to come up. [00:05:30] Speaker 04: I'm sorry. [00:05:31] Speaker 02: Absolutely, yes. [00:05:32] Speaker 02: So I think one of the key things you relied on for the argument that she needed to elevate her legs is Dr. Solomon's final note. [00:05:41] Speaker 02: Yes. [00:05:42] Speaker 02: And what the ALJ says is, first, he's very careful in that final, sorry, not his treatment note, but the medical source statement. [00:05:52] Speaker 02: He's careful to note that this is per the patient. [00:05:55] Speaker 02: And second, he says, it seems to be contradictory [00:05:59] Speaker 02: to Dr. Solomon's own earlier last treatment note in November 2015. [00:06:05] Speaker 02: Why are those two points incorrect? [00:06:14] Speaker 04: I always have trouble with his ideas of contradiction because, as you just stated, they're months apart or weeks [00:06:28] Speaker 04: people don't, sick people don't stay the same, especially when it's one where her posture changes her blood pressure. [00:06:38] Speaker 02: Absolutely appreciate that. [00:06:40] Speaker 02: And I think what the ALJ was saying is the last treatment note from Dr. Solomon is in November 2015, and that's the last time that he had seen her. [00:06:50] Speaker 02: And it doesn't say anything specifically that she doesn't need to elevate her legs, but it is otherwise a very positive report on her status. [00:07:01] Speaker 02: And that if he did not then see her again, and his final note says she needs to elevate her legs, [00:07:09] Speaker 02: per patient that the ALJ had some reason to not give that full weight. [00:07:16] Speaker 02: And the question before us is why is that an unreasonable conclusion? [00:07:23] Speaker 04: A couple of reasons. [00:07:29] Speaker 04: First of all, he's a treating specialist, as you know. [00:07:34] Speaker 04: And that means that he [00:07:39] Speaker 04: and he has been in communication with her on and off all along. [00:07:47] Speaker 04: So he already gets under rule 1527C, he gets three points, if you will. [00:07:57] Speaker 04: Of course, she changes, her condition changes, condition changes, and at that time she had improved. [00:08:10] Speaker 04: Then again, she relapses. [00:08:13] Speaker 04: She does improve periodically throughout this period, of course, but she also relapsed every time. [00:08:21] Speaker 04: And in fact, in here, she relapsed to the point that she needed home health aid. [00:08:27] Speaker 05: You refer to a doctor, a treatment record showing that somebody had directed, I think it was Dr. Salin, but somebody had directed her to elevate her legs. [00:08:44] Speaker 05: I don't recall seeing that. [00:08:45] Speaker 05: What page are you looking at? [00:08:47] Speaker 04: That is the only place that will appear in the record in clear [00:08:55] Speaker 04: terms, the way you're talking about it, Your Honor, is at the very end. [00:09:00] Speaker 05: Can you give me a page? [00:09:01] Speaker 04: There's just a lot of... When they're doing the... I'm not sure they ever actually say it. [00:09:09] Speaker 04: They say she needs to elevate her. [00:09:12] Speaker 04: He says she needs... He who? [00:09:15] Speaker 04: Dr. Solomon? [00:09:16] Speaker 04: Dr. Solomon. [00:09:18] Speaker 04: Same doctor. [00:09:21] Speaker 04: He says that she needs to elevate her legs when symptomatic. [00:09:28] Speaker 02: Yes, this is on page 618 and 619 of the joint appendix, and that's the document I was asking about. [00:09:34] Speaker 02: Exactly. [00:09:35] Speaker 02: In particular, the ALJ pointed out every time he says that she needs to elevate her legs, he's careful to say her patient. [00:09:45] Speaker 04: Right. [00:09:45] Speaker 04: And one of the important things serious that he actually noticed in there [00:09:50] Speaker 04: that it's clinically supported by her tachycardia and tilt table testing. [00:10:01] Speaker 04: But in addition, he also got emails from her two or three times a month because her blood pressure fluctuated so dramatically. [00:10:19] Speaker 02: Thank you. [00:10:24] Speaker 05: Thank you. [00:10:25] Speaker 05: Did you save any time for rebuttal? [00:10:28] Speaker 04: I did. [00:10:28] Speaker 04: Five minutes. [00:10:32] Speaker 05: Okay. [00:10:33] Speaker 05: Now we'll hear from Mr. Lippman. [00:10:52] Speaker 00: Thank you, Your Honors. [00:10:53] Speaker 00: Jared Lippman for the United States of America. [00:10:55] Speaker 00: May it please the Court. [00:10:57] Speaker 00: I want to start by confirming a few things that the Court pointed out. [00:11:03] Speaker 00: First, Judge Pollard, you're correct. [00:11:04] Speaker 00: There's no order directing [00:11:06] Speaker 00: the plaintiff to stay in bed for 14 months. [00:11:09] Speaker 00: All we have is the March 2013 opinion submitted by Dr. David, which actually suggests a period of bed rest for maybe two to 12 weeks. [00:11:20] Speaker 00: And that was because she wasn't treated at that time. [00:11:23] Speaker 00: What the record showed is once she was treated with that medication, her symptoms began to dissipate and her problems began to lift. [00:11:31] Speaker 00: So you're right, there is no document about her having to stay in bed for 14 months. [00:11:37] Speaker 00: Secondly, Judge Garcia, you're correct. [00:11:41] Speaker 00: Dr. Solomon's opinion was overtly perpatient. [00:11:46] Speaker 00: Dr. Solomon indicated right on the face of that when those limitations were perpatient. [00:11:51] Speaker 00: So you're exactly correct there, that those were subjective self-complaints. [00:11:55] Speaker 05: So I have a question about that, because most of the diagnostic work that I think doctors do is based on information reported by [00:12:07] Speaker 05: Obviously, lab tests and physical examinations and scans are incredibly powerful diagnostic tools, but a lot of information that is relied on by doctors is patient self-report. [00:12:23] Speaker 05: Can you help me out in understanding why dismissing something as self-report is not deeply problematic? [00:12:33] Speaker 00: A few things. [00:12:33] Speaker 00: First of all, it wasn't dismissed purely on that basis. [00:12:37] Speaker 00: ALJ correctly pointed out where Dr. Solomon made notations that the limitations were per patient. [00:12:43] Speaker 00: And under the regulations, ALJ can discount medical opinions for two reasons. [00:12:49] Speaker 00: One, if there's no supporting laboratory or diagnostic testing, [00:12:53] Speaker 00: or if it's inconsistent with the evidence of record. [00:12:56] Speaker 00: So yes, of course, what you report to your doctor is relevant. [00:13:01] Speaker 00: I mean, it does mean something. [00:13:03] Speaker 00: But in terms of giving a medical opinion controlling weight, it has to meet certain standards to be entitled to that controlling weight. [00:13:11] Speaker 05: So here, is it that it's inconsistent with lab tests or that it's contradicted? [00:13:15] Speaker 00: There is, with respect to the elevation of legs, for example, that was one of the notations that were per patient. [00:13:22] Speaker 00: What the ALJ pointed out is there's nothing in the treatment record, one where plaintiff reported that she needed to elevate her legs. [00:13:30] Speaker 00: In all of that time when she was going to her doctor, she never reported that to Solomon. [00:13:34] Speaker 00: She reported that to Dr. Solomon at the time. [00:13:36] Speaker 05: Who was a treatment doctor. [00:13:37] Speaker 00: We indicated that in the statement, but nothing in the treatment records. [00:13:41] Speaker 00: So she never told during the portion of the treatment evidence, she never said, [00:13:47] Speaker 00: Doctors, I need to elevate my legs because I have swelling. [00:13:50] Speaker 00: That makes them feel better. [00:13:54] Speaker 00: What we do have is her doctors were saying, because of your symptoms, you should wear compression stockings. [00:13:59] Speaker 00: That should be sufficient, that conservative treatment. [00:14:02] Speaker 00: And it's proved out that it was. [00:14:04] Speaker 00: We don't have anything from her doctors in the treatment record saying, if you experience swelling in your legs, [00:14:11] Speaker 00: You know to elevate to elevate that they told her to wear compression stockings you can go exercise and do yoga is the message that they were her argument is that that's not actually contradictory evidence it's just evidence that doesn't speak to the question. [00:14:25] Speaker 02: And so it seems to me that you need us to think it's reasonable to read treatment note. [00:14:32] Speaker 02: that just doesn't mention one way or the other a need to elevate your legs as contradictory to Solomon's later statements. [00:14:41] Speaker 02: And so what's the argument that we should do that? [00:14:44] Speaker 00: I mean, I think it's certainly, you know, everything has to be factored in. [00:14:48] Speaker 00: The judge is looking at this entire record and hear the fact that it was never reported [00:14:53] Speaker 00: to her doctors that she needed to elevate her legs and second that her doctors never instructed her to elevate her legs something that the lj can consider when looking at that medical statement you know further down the line saying her patient she needs to elevate her legs you'd expect to see that [00:15:09] Speaker 00: you know, in the record. [00:15:11] Speaker 00: And Dr. Salmon, it wasn't just the perpatient notations. [00:15:15] Speaker 00: The ALJ also spoke about Dr. Salmon only saw a plaintiff four times over the course of several years. [00:15:21] Speaker 00: That's not the type of longitudinal treatment evidence that sometimes you would see that really underlies the treating physician rule. [00:15:28] Speaker 00: So four times over the course of a couple years. [00:15:31] Speaker 05: But she was in contact with him in between quite frequently by email. [00:15:38] Speaker 00: I think those emails came towards the latter portion of the disability period and were in, I think, late 2015 and 2016. [00:15:47] Speaker 00: But the in-person examinations, [00:15:50] Speaker 00: which is a big portion of this, we're talking about a cardiologist. [00:15:54] Speaker 00: So testing, of course, is an important component of that. [00:15:57] Speaker 00: Dr. Solomon saw her only four times. [00:15:59] Speaker 00: So that's another piece of this. [00:16:02] Speaker 00: It's in addition to a lot of the notations being per patient. [00:16:07] Speaker 00: Only saw her four times. [00:16:09] Speaker 00: And the ALJ didn't stop there. [00:16:11] Speaker 00: The ALJ pointed out [00:16:12] Speaker 00: And Judge Garcia, you mentioned this in the last treatment note from Dr. Solomon, which was only five months prior to the statement. [00:16:20] Speaker 00: Dr. Solomon did do an examination and did make notations saying that point have dramatically improved on her medication. [00:16:27] Speaker 00: She was doing very well from a cardiac standpoint. [00:16:30] Speaker 00: She had no chest discomfort, no shortness of breath on exertion, no palpitations, no fainting and no swelling. [00:16:38] Speaker 00: And that's on page 736 of the joint appendix. [00:16:40] Speaker 05: Your brief acknowledged that Ms. [00:16:43] Speaker 05: O'Hare was, quote, almost completely immobile, close quote, for a year and a half. [00:16:52] Speaker 05: And then you proceed to say that her symptoms began to respond. [00:16:56] Speaker 05: But how does beginning to respond, that her symptoms begin to respond, undermine her having been on bed rest for a year and a half? [00:17:05] Speaker 00: I don't believe that we conceded that she was on bed rest for a year and a half. [00:17:10] Speaker 00: I think that was a contention of plaintiff. [00:17:13] Speaker 00: She was most certainly not on bed rest for a year and a half. [00:17:16] Speaker 00: What we had the timeline was in December 2012 is when she had that first incident at work and she went to the hospital. [00:17:24] Speaker 00: In March 2013, she made an attempt to return to work. [00:17:28] Speaker 00: That attempt was unsuccessful. [00:17:29] Speaker 00: That was light, semi-skilled work. [00:17:32] Speaker 00: She was working at a boutique in Bloomingdale's. [00:17:35] Speaker 05: So you talk about Dr. Solomon's report that she had been almost completely immobile. [00:17:40] Speaker 05: But then she had stopped fainting. [00:17:42] Speaker 05: You say the ALJ doesn't credit this. [00:17:45] Speaker 05: To the contrary, the ALJ treatment note reflects that her symptoms began to respond to medication. [00:17:53] Speaker 05: Oh, I see. [00:17:53] Speaker 05: And you say in 2013, [00:17:56] Speaker 05: How do we know how, I mean, beginning to respond can be slight, it can be moderate, it can be obviating all symptoms. [00:18:05] Speaker 05: Beginning to respond is, I mean, I had a bunch of questions, I guess, about the use of something being controlled, something being improved, responding. [00:18:18] Speaker 05: It seems like every time there's any improvement, one way of reading the ALJ is that that meant it was better. [00:18:26] Speaker 05: It was better not in the relative sense. [00:18:28] Speaker 05: It was resolved. [00:18:31] Speaker 05: Any light that you can throw on that? [00:18:37] Speaker 00: I understand your point, Judge Pollard. [00:18:39] Speaker 00: But when I read the ALJ's decision, I don't think the ALJ discussed improvement in a vacuum. [00:18:45] Speaker 00: If you look at the ALJ's decision, for example, on page 50 of the Joint Appendix, this is part of the ALJ's decision. [00:18:52] Speaker 00: What the ALJ said was plaintiff's pots improved dramatically. [00:18:56] Speaker 00: In a vacuum, that doesn't tell you much. [00:18:58] Speaker 00: What does that mean? [00:18:59] Speaker 00: But the ALJ does not stop there. [00:19:01] Speaker 00: The ALJ says, plaintiff's pots improved dramatically on floreneph and mitrogen. [00:19:06] Speaker 00: And then the ALJ went on to say, although not back to baseline, she had stopped fainting. [00:19:12] Speaker 00: So the ALJ always added context to when he said that plaintiff was improving, similar with respect to plaintiff's headaches. [00:19:19] Speaker 00: This is on page 51 of the joint appendix, also the ALJ's decision. [00:19:23] Speaker 00: The ALJ said that on medication, plaintiff's headaches were well controlled. [00:19:27] Speaker 00: I think you're right, Judge Bard, in a vacuum that doesn't give you much, necessarily much information. [00:19:32] Speaker 00: But then what the ALJ went on to explain, the plaintiff experienced only one episode [00:19:37] Speaker 00: of her headaches over the course of several months. [00:19:40] Speaker 00: So always adding some context to what those words mean. [00:19:43] Speaker 05: One of the things that I find difficult about this case is there does seem to be some amount of over claiming. [00:19:48] Speaker 05: And then the ALJ is responding to that. [00:19:50] Speaker 05: For example, in the headache paragraph that you're talking about, the medical evidence does not support her allegations regarding intensity persistence and limiting effect. [00:20:03] Speaker 05: you know, it's under control, but then she sometimes is fluctuating. [00:20:12] Speaker 05: So, you know, the medical record does not support her, but it seemed like she was still, like it's unclear that the medical, the treating physicians seem to be saying she's still got some pretty substantial impairments to contend with. [00:20:29] Speaker 05: And so taking it down from her, [00:20:32] Speaker 05: level of report, I'm just not sure what to make of that. [00:20:36] Speaker 05: And that's how I read the ALJ to be using that as a benchmark and saying it was less than that. [00:20:45] Speaker 00: What the ALJ does, one of the components of the ALJ's decision is they need to look at the plaintiff's subjective complaints. [00:20:52] Speaker 00: And then they need to compare that to the medical evidence and the rest of the record to see whether [00:20:57] Speaker 00: It lines up with their allegations as to the persistence of the problems, as to the severity of the problems, and as to the degree of her problems. [00:21:05] Speaker 00: And that's exactly what the ALJ did here. [00:21:07] Speaker 00: And we need to remember, it wasn't that the ALJ said, you know, no, no, Ms. [00:21:13] Speaker 00: O'Hare, you're fine. [00:21:14] Speaker 00: You can go back, you know, to go work, you know, a medium job or heavy job. [00:21:19] Speaker 00: We're talking about a functional capacity of light work [00:21:23] Speaker 00: and the ALJ identified sedentary unskilled jobs with a sit-stand option. [00:21:28] Speaker 00: That's the lowest level of work available under their commissioner's regulations. [00:21:32] Speaker 00: So the ALJ didn't say, no, you don't have problems. [00:21:36] Speaker 00: The point was, evidence doesn't support your allegations that you're making. [00:21:42] Speaker 00: And the medical evidence supports a functional capacity of finding of sedentary and light work. [00:21:51] Speaker 02: If we hypothetically thought that NLJ's decision was only reasonable as to the sedentary work finding, would we still be denying, affirming? [00:22:02] Speaker 02: Yes, Your Honor, you would affirm that in that circumstance. [00:22:08] Speaker 03: Anything else, Judge Rodgers? [00:22:10] Speaker 03: Yes, I just have one question. [00:22:12] Speaker 03: You know, counsel, in the opening brief, there is an attempt to summarize [00:22:21] Speaker 03: And basically, and it was reflected in the oral argument today, is this is a woman who's 27 years old and yet she has conditions that suggest she's impaired to a far greater extent than would a healthy 27-year-old person. [00:22:49] Speaker 03: So what's happening? [00:22:51] Speaker 03: So her record says she has these problems. [00:22:55] Speaker 03: There are multiple problems. [00:22:57] Speaker 03: And when they all gang up on each other, she's impaired. [00:23:03] Speaker 03: But with medication that helps some, she improves in that area. [00:23:11] Speaker 03: Likewise, with these stockings, some exercise, she might improve in some other areas. [00:23:19] Speaker 03: But then the record shows [00:23:21] Speaker 03: She has relapses where these conditions come back. [00:23:27] Speaker 03: So the way I read this record and what the ALJ is saying is this is a person who throughout her life is going to have these episodic occurrences that will in effect, and I'm not using this in a technical sense, disable her. [00:23:52] Speaker 03: from working productively except in the most sedentary, non-demanding jobs. [00:24:08] Speaker 03: And that's enough under the law and regulations to find that she is disabled for purposes of medical insurance coverage. [00:24:21] Speaker 03: Is that basically the position in this case? [00:24:27] Speaker 00: Yes, Your Honor. [00:24:28] Speaker 00: A couple of points I want to make here. [00:24:31] Speaker 00: First, you don't have to be pain free or symptom free in order to be able to return to work on a regular basis, particularly here where we're talking about sedentary work. [00:24:42] Speaker 00: There's a lot of people who go to work on a daily basis that are experiencing some level of symptoms. [00:24:47] Speaker 00: The ALJ's point here was that the symptoms when treated, which they were in medication, did not reach the point [00:24:56] Speaker 00: of disability. [00:24:56] Speaker 00: Remember, this is a pretty strict standard here. [00:25:00] Speaker 00: It's someone who, for a period of 12 consecutive months, not just can't return to her past relevant work, but can return to any job available in the national economy. [00:25:10] Speaker 00: And that's the decision that the ALJ made. [00:25:13] Speaker 00: One other point I want to make, Judge Rogers, [00:25:17] Speaker 00: is the ALJ didn't ignore or disregard that at times symptoms return. [00:25:22] Speaker 00: The ALJ addressed that head on. [00:25:24] Speaker 00: And if you look at page 50 of the appendix, the ALJ says, although the claimant reported increased symptoms at times, her symptoms improved quickly with medication adjustments. [00:25:35] Speaker 00: So what the record shows is that point would be stabilized at her medication. [00:25:41] Speaker 00: At some time, she came back and reported, hey, I had a spike in my symptoms, doctor. [00:25:46] Speaker 00: What should I do? [00:25:47] Speaker 00: And doctors always responded accordingly, and those symptoms dissipated again. [00:25:51] Speaker 00: So the ALJ recognized what can be called recurring symptoms that would pop up once in a while. [00:25:59] Speaker 00: But in every one of those circumstances, her doctors responded with a medication change or just a dose change, and those symptoms quickly alleviated again. [00:26:07] Speaker 05: So Mr. Lippman, does controlled mean [00:26:10] Speaker 05: Eliminated or virtually eliminated. [00:26:12] Speaker 05: Medical as a medical matter. [00:26:15] Speaker 00: I wouldn't consider you know controlled a medical term. [00:26:20] Speaker 00: I think what control. [00:26:21] Speaker 00: Excuse me? [00:26:22] Speaker 05: You would not consider it a medical record? [00:26:24] Speaker 00: I mean, we see it in medical records all the time. [00:26:26] Speaker 00: I'm not sure if there's a medical definition attached to it. [00:26:28] Speaker 00: I think it's the common understanding of controlled. [00:26:31] Speaker 00: I think it means that the symptoms have remediated to the point that it's not a significant interference in performing daily activities. [00:26:41] Speaker 05: So for example, this sort of combines the two concerns I have that the ALJ is taking aim at [00:26:51] Speaker 05: the claimant's description and finding the claimant's descriptions to be higher, of worse impairment than the record would show. [00:27:02] Speaker 05: And the ALJ then is also looking at reduced symptomology. [00:27:09] Speaker 05: Neither of those things actually, logically to me, seems to speak to the objective degree of impairment [00:27:20] Speaker 05: the ability of the person to do work. [00:27:22] Speaker 05: And I'm looking at the, I guess it's the third full paragraph on JA 52. [00:27:30] Speaker 05: Clement alleges, [00:27:32] Speaker 05: a couple sentences into it. [00:27:34] Speaker 05: The claimant alleges she is able to walk only 10 minutes, stand five minutes, sit without her legs elevated for 20 minutes, and lift five to 10 pounds. [00:27:41] Speaker 05: The objective medical evidence and the claimant's own reports to her treating sources fail to support the symptoms severity and degree of limitation, she now alleges, which in my mind raises the question, well, what degree does it support? [00:27:56] Speaker 05: The medical record shows the medication has been effective in reducing and ultimately controlling [00:28:02] Speaker 05: most symptoms, not all symptoms. [00:28:05] Speaker 05: And physical examinations have generally not revealed significant abnormalities. [00:28:11] Speaker 05: What about the symptoms that aren't controlled? [00:28:13] Speaker 05: What about the significant abnormalities that are revealed at the medical appointments? [00:28:20] Speaker 05: And then the ALJ acknowledges that she has chronic fatigue syndrome. [00:28:25] Speaker 05: So that's reasonably expected to make her exhausted. [00:28:31] Speaker 05: I'm just not sure what's going on when I read that. [00:28:34] Speaker 00: I think there are a couple of points. [00:28:36] Speaker 00: First of all, again, someone doesn't have to be symptom-free in order to be found not disabled. [00:28:42] Speaker 00: There still can be symptoms. [00:28:44] Speaker 00: And what the ALJ did, the ALJ made these statements, but then went through the medical evidence and discussed what those treatment notes from Dr. Solomon, the cardiologist, and what the rheumatologist said that didn't support the extreme limitations that Pointiff was stating. [00:28:59] Speaker 00: And remember, we're talking here about sedentary work. [00:29:02] Speaker 00: So the ALJ, in fact, credited [00:29:05] Speaker 00: plaintiff to a pretty significant extent. [00:29:09] Speaker 00: Sedentary work is the lowest level of work under our regulations. [00:29:13] Speaker 00: The ALJ didn't have to defer to what plaintiff was saying or what she testified about. [00:29:18] Speaker 00: The ALJ assesses that against the medical event and reduced her to sedentary unskilled work with a sit stand option. [00:29:27] Speaker 00: And the one other point I want to make, and it hasn't come up in my argument somehow, [00:29:31] Speaker 00: We're talking about the substantial evidence standard here. [00:29:34] Speaker 00: And that's absolutely critical in looking at this case. [00:29:41] Speaker 00: And under the substantial evidence standard, the evidence would have to be so strong that it would compel different factual findings. [00:29:48] Speaker 00: Just because some evidence might support a different factual finding doesn't mean that the court should remand on that basis. [00:29:55] Speaker 00: So long as substantial evidence that's more than a mere scintilla of evidence supports the ALJ's decision, then the court should affirm. [00:30:02] Speaker 00: Also under that standard, the courts can't reweigh the evidence. [00:30:07] Speaker 00: And the majority of what's being said here is a request for the court to reweigh the evidence, which isn't permitted under substantial evidence of review. [00:30:18] Speaker 05: And the consultative physicians are people who look at the records. [00:30:24] Speaker 05: They don't meet with the patient, right? [00:30:30] Speaker 00: So there's two different types of doctors here. [00:30:32] Speaker 00: There's a state agency consultant, and those were the ones in February, upon initial review, and February [00:30:42] Speaker 00: 2014 upon initial review, and I believe April of 2014 upon reconsideration, those doctors are just looking at the medical records. [00:30:50] Speaker 00: There's also something called a consultative examiner. [00:30:52] Speaker 00: And here we do have one, Dr. Wangard, looked at plaintiffs' alleged mental limitations. [00:30:58] Speaker 00: And that is someone who actually did examine plaintiff. [00:31:03] Speaker 05: Thank you. [00:31:03] Speaker 05: That's helpful. [00:31:07] Speaker 05: Other questions? [00:31:09] Speaker 00: There are no more questions from the court. [00:31:10] Speaker 00: We ask the court to affirm substantial evidence supports the ALJ's decision. [00:31:15] Speaker 00: Thank you. [00:31:24] Speaker 05: Pardon? [00:31:26] Speaker 05: He had no time remaining. [00:31:27] Speaker 05: We'll give her a couple of minutes. [00:31:35] Speaker 04: Just a couple of quick points. [00:31:38] Speaker 04: Dr. Solomon is a private doctor. [00:31:41] Speaker 04: He is not. [00:31:42] Speaker 04: They just see doctors, so he doesn't tell you everything. [00:31:45] Speaker 04: They write down what they think is their board. [00:31:49] Speaker 04: They also, because they're members of the GW Medical Associates, they see each other's records. [00:31:58] Speaker 04: So they see all of her tests, examinations, everything. [00:32:07] Speaker 04: Now, one of the reasons you're having your questions, I realize, is that the judge failed to put in the required function by function analysis. [00:32:18] Speaker 04: Social Security ruling 96-8P and 404-1529C talk about the function by function analysis and it's missing here. [00:32:35] Speaker 04: Regulations require an evaluation, not, oh, she's generally improved. [00:32:43] Speaker 04: She does this generally. [00:32:46] Speaker 04: That should be a number. [00:32:49] Speaker 04: The function by function analysis actually requires the ALJ to evaluate the restrictions and the treatment [00:33:00] Speaker 04: their frequency, their duration, and gauge their severity. [00:33:05] Speaker 04: And that changes, in this case, over time. [00:33:09] Speaker 04: But he gives the impression that she's always improving. [00:33:14] Speaker 04: Well, she's always improving. [00:33:15] Speaker 04: Why is she sitting at home with her legs elevated? [00:33:22] Speaker 04: Why is she still going to the doctors? [00:33:24] Speaker 04: Now, her testimony was, [00:33:28] Speaker 04: that she elevated her legs, and that means you can't work at a desk. [00:33:32] Speaker 04: If you elevate your feet to heart height, you cannot work at a desk. [00:33:37] Speaker 04: You can't reach it. [00:33:42] Speaker 04: She says she elevates her feet most days, most of the time. [00:33:48] Speaker 04: Most of the time on most days I have it backwards. [00:33:52] Speaker 04: She is not bedroom. [00:33:56] Speaker 04: She can go to the doctor, [00:33:59] Speaker 04: She can go out to lunch, but for several hours of the day, most days, most of the time, she has to have her legs elevated. [00:34:13] Speaker 04: And that's the critical core of this case. [00:34:19] Speaker 04: Yes, she had periods of improvement, but also what would happen is her blood pressure would get better [00:34:28] Speaker 04: her migraines would go up. [00:34:30] Speaker 04: She would take her migraine at depression medication and her blood pressure would go up and that that's in the record as well. [00:34:42] Speaker 04: Also the ALJ here failed to quantify and this is required and discussed in 96 Social Security early 96-AP. [00:34:54] Speaker 04: They have to quantify separately [00:34:57] Speaker 04: each of the seven strength demands, sitting, standing, walking, lifting, carrying, plus manipulative functions, mental functions, postural functions, that's missing and totally missing here in this decision. [00:35:14] Speaker 04: It's just also what's missing is what happened to Butler. [00:35:23] Speaker 04: It's a very poor decision and it's very difficult. [00:35:27] Speaker 04: I understand that. [00:35:29] Speaker 04: But there has to be a function by function analysis or you don't, or just as you are having trouble, you can't tell what he thinks about what her condition was one year versus the next Tuesday where it's, [00:35:51] Speaker 04: I wish it were more clear. [00:35:52] Speaker 04: Well, I actually don't. [00:35:53] Speaker 04: But that's what's missing. [00:35:57] Speaker 04: And it's in 404-1529C, but it's expanded, of course, and discussed more thoroughly in 96-8P. [00:36:12] Speaker 04: And that's why you can't tell when she improved or [00:36:16] Speaker 04: critically how much. [00:36:18] Speaker 04: You can't tell when she relapsed and how. [00:36:25] Speaker 04: Because there's no, it's effectively no timeline is one way to think about it. [00:36:32] Speaker 05: What are you pointing to as requiring a function by function analysis? [00:36:38] Speaker 05: Because I don't think our court has held that rule. [00:36:42] Speaker 04: Social security ruling 96-AP. [00:36:49] Speaker 04: It discusses how to the judge is supposed to develop the residual functional capacity. [00:36:59] Speaker 04: It's also discussed, Your Honor, at 420 CFR 404 1529 C. And you did not include in the appendix the Social Security ruling that you're talking about. [00:37:19] Speaker 04: 96-8B. [00:37:19] Speaker 04: Yeah. [00:37:23] Speaker 04: I have a spare copy. [00:37:25] Speaker 05: All right, we can look it up. [00:37:28] Speaker 05: And the other thing you're pointing to is... Oh, in the ruling itself? [00:37:35] Speaker 05: You also referred to, is it 20 CFR 416-945? [00:37:40] Speaker 05: Is that what you were referring to? [00:37:43] Speaker 05: I'm sorry? [00:37:44] Speaker 05: 416-945? [00:37:44] Speaker 05: Yes. [00:37:49] Speaker 05: All right, any questions? [00:37:53] Speaker 05: Judge Rogers, any further questions? [00:37:54] Speaker 05: All right, thank you very much. [00:37:58] Speaker 05: The case is submitted.