[00:00:02] Speaker 00:
Good morning.

[00:00:02] Speaker 00:
May it please the court?

[00:00:04] Speaker 00:
My name is Victoria Chugin, and I represent the appellant Beth Nevin.

[00:00:07] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:13] Speaker 00:
Ms.

[00:00:13] Speaker 00:
Nevin applied for SSI in this case, and that's a program for people with very limited financial means.

[00:00:19] Speaker 00:
And these benefits were critical to her.

[00:00:21] Speaker 00:
And so when her application was denied, she appealed that.

[00:00:25] Speaker 00:
And during the appeal, she filed a new application, and that was granted.

[00:00:28] Speaker 00:
That provided a great deal of relief for her.

[00:00:31] Speaker 00:
And the only reason she continued to pursue her claim on back benefits, the past due benefits available on the first claim, is that she reasonably believed that there was no way that that second application could be reopened and that her benefits could be taken away from her.

[00:00:49] Speaker 00:
Internal agency guidance, to the contrary, is my sub... I think there's a correction.

[00:00:54] Speaker 03:
It could be reopened, assuming the reopening was timely.

[00:00:58] Speaker 00:
Yes, yes.

[00:01:00] Speaker 00:
By the time her hearing occurred, she felt that she was beyond the two years and that that was safe.

[00:01:08] Speaker 00:
The administrative law judge in this case appears to have had some ideas about the case that really permeated the multiple hearings and decisions

[00:01:18] Speaker 00:
And that ran counter to the opinions of several medical providers, including two medical experts.

[00:01:24] Speaker 00:
And I think there are two points that really I'd like to make today.

[00:01:27] Speaker 00:
One is about interstitial lung disease.

[00:01:31] Speaker 00:
Interstitial lung disease is very similar to what we've heard of, like asthma and COPD, but it's different in the sense that

[00:01:39] Speaker 00:
You don't have positive ventilatory studies, so what that means is you are not short on oxygen.

[00:01:45] Speaker 00:
What happens is your carbon dioxide goes up, it affects your brain, and you begin to panic.

[00:01:51] Speaker 00:
You feel that you're suffocating.

[00:01:54] Speaker 00:
And this is what the medical expert explained in this case, that Ms.

[00:01:58] Speaker 00:
Nevin, even though she was able to walk for six minutes and have good oxygen levels, even though her PFT, her pulmonary function tests,

[00:02:07] Speaker 00:
the ventilatory part of that were perfectly normal.

[00:02:11] Speaker 00:
She was subjectively and objectively suffocating because of the level of CO2 in her blood.

[00:02:19] Speaker 00:
Because of that, her anxiety was spiking and the pattern went around and around.

[00:02:23] Speaker 00:
She would become anxious.

[00:02:24] Speaker 00:
She couldn't breathe.

[00:02:25] Speaker 00:
This is why she went to the emergency room on multiple occasions.

[00:02:31] Speaker 00:
The combined effect of these impairments is what led to a finding of disability on her second application as a somatoform disorder.

[00:02:40] Speaker 00:
And it's what the medical experts in this case also said.

[00:02:45] Speaker 00:
From the physical standpoint, it was that, yes, the interstitial lung disease combined with the back pain limits her to sedentary work.

[00:02:54] Speaker 00:
Given her age, she should be found disabled.

[00:02:56] Speaker 00:
The psychological examiner said,

[00:02:59] Speaker 00:
From the perspective of anxiety, she meets a listing.

[00:03:03] Speaker 00:
And because she meets a listing, she's disabled at step three.

[00:03:07] Speaker 00:
And even if that were not the case, she would miss too much work, and she would be unable to concentrate.

[00:03:13] Speaker 00:
So there are many ways to get to disability in this case.

[00:03:17] Speaker 00:
We submit that the rejection of the multiple opinions was the greatest error in this case because these were doctors who were treating physicians in two cases.

[00:03:30] Speaker 00:
There was the

[00:03:33] Speaker 00:
Jeremy Stevens, who was her treating physician, who very clearly said that she was limited to sedentary work and needed to lie down.

[00:03:42] Speaker 00:
That opinion was improperly rejected because it was on a checkbox form, but he provided evidence to support his opinion.

[00:03:50] Speaker 00:
The administrative law judge also challenged it based on the opinion of another doctor, Dr. Bridget Collins, who performed a very brief test.

[00:03:58] Speaker 00:
This is a test where you have an individual walk for six minutes in the doctor's office with a pulse oximeter, the kind that you put on your finger or your ear.

[00:04:07] Speaker 00:
And that pulse oximeter showed that the oxygen level was fine, but as I mentioned earlier, that wouldn't have been incompatible with the subjective feeling of suffocation and ILD, or interstitial lung disease.

[00:04:21] Speaker 00:
So there was no reason to use

[00:04:22] Speaker 03:
This is a medical question that I'm not sure I'm fully capable of asking properly, and you may be fully capable of answering properly.

[00:04:32] Speaker 03:
Well, if the level of oxygen is appropriate, does somehow an elevated level of CO2 interfere with the absorption of oxygen?

[00:04:44] Speaker 03:
How can it be that she's in trouble if her oxygen level is proper?

[00:04:50] Speaker 00:
My understanding that it's very much like when we hold our breath or swim underwater, when we take in oxygen, the oxygen is still in our lungs.

[00:04:58] Speaker 00:
So it is present.

[00:04:59] Speaker 00:
It hasn't decreased.

[00:05:01] Speaker 00:
But the level of CO2 has risen to the point that it's toxic.

[00:05:05] Speaker 00:
And so even though there's oxygen present, that we have a toxic level of CO2 that causes our brain to panic.

[00:05:12] Speaker 03:
So the answer is, as you understand it, even though you have an appropriate level of oxygen in your blood, if the CO2 level is too high, that interferes somehow with the use of the oxygen.

[00:05:25] Speaker 00:
Yes, and that is based on the testimony of the first medical expert, Dr. Smiley.

[00:05:31] Speaker 00:
Now, Dr. Smiley also did support a finding of disability in this case.

[00:05:37] Speaker 00:
So now we have two primary care providers, Ms.

[00:05:41] Speaker 00:
Rivera and Dr. Stevens, who are saying she's limited, and then multiple medical experts.

[00:05:50] Speaker 00:
There's also the rejection of her testimony.

[00:05:52] Speaker 00:
The administrative judge felt that she was exaggerating her testimony and that she was drug seeking.

[00:06:00] Speaker 00:
This question was posed to the medical experts, and the medical experts did not see evidence of drug seeking.

[00:06:06] Speaker 00:
They said that

[00:06:09] Speaker 00:
that emergency rooms keep track of this.

[00:06:11] Speaker 00:
They keep track of people who are looking for drugs.

[00:06:13] Speaker 00:
And there just was no evidence of that.

[00:06:16] Speaker 00:
Were there anecdotal remarks in the 2,500 page record about her wanting medication?

[00:06:23] Speaker 00:
Yes, she had back pain.

[00:06:25] Speaker 00:
She asked for it.

[00:06:26] Speaker 00:
She was anxious.

[00:06:27] Speaker 00:
There were times when doctors wondered.

[00:06:30] Speaker 00:
Could she be a drug seeker?

[00:06:32] Speaker 00:
But there was no evidence, and when it was posed to the medical experts, they saw no evidence of exaggeration, specifically no evidence of malingering and no evidence of exaggeration.

[00:06:47] Speaker 00:
The proper remedy in this case would seem to be an award of benefits because of the length of time that this case has been pending, and also because of the number of medical opinions that were rejected.

[00:07:00] Speaker 03:
And the fact, yes?

[00:07:02] Speaker 03:
We've got two questions.

[00:07:03] Speaker 03:
One is, was the order set, properly set aside?

[00:07:07] Speaker 03:
And the other one is the earlier onset date.

[00:07:12] Speaker 03:
What's the difference in recovery?

[00:07:14] Speaker 03:
Assume that you'll succeed in overturning the setting aside the award for the later amount.

[00:07:20] Speaker 03:
How much money are we talking about?

[00:07:22] Speaker 00:
Well, so the SSI amount depends on the individual, but I can answer your question in terms of time.

[00:07:28] Speaker 00:
Her first SSI application was filed in August of 2017.

[00:07:35] Speaker 00:
Her alleged onset date doesn't matter because benefits are only payable as of the date of filing.

[00:07:40] Speaker 00:
So that would be August of 2017.

[00:07:44] Speaker 00:
She was found disabled on the second claim as of her 55th birthday, and that was in July of 2020.

[00:07:56] Speaker 00:
For her, it's a significant amount of time.

[00:08:06] Speaker 00:
I'm mindful of the well, I think I'm at my two-minute point.

[00:08:11] Speaker 00:
So I'll address that later.

[00:08:12] Speaker 00:
Thank you.

[00:08:23] Speaker 02:
Good morning, Your Honor.

[00:08:24] Speaker 02:
May I please record David Burdette representing the Commissioner Martin O'Malley in this matter.

[00:08:29] Speaker 02:
I would like to just first correct or perhaps add to some observations that were made about the medical evidence.

[00:08:37] Speaker 02:
It is far more equivocal for the period at issue than was presented.

[00:08:43] Speaker 02:
First of all, there is certainly evidence of drug seeking.

[00:08:46] Speaker 02:
At page 1139 of the record, in 2018, the care provider noted that Ms.

[00:08:54] Speaker 02:
Nevin came up very short on a pill count.

[00:08:57] Speaker 02:
end quote, has obviously been misusing her medications, close quote.

[00:09:02] Speaker 02:
And there were other instances of drug seeking on the record.

[00:09:06] Speaker 02:
With regard to her interstitial lung disease.

[00:09:09] Speaker 03:
Do you have any quick ER sites for the other instances?

[00:09:10] Speaker 02:
Beg your pardon?

[00:09:11] Speaker 03:
You gave us an ER site for one instance.

[00:09:13] Speaker 03:
Do you have the ER sites for the others?

[00:09:15] Speaker 02:
Yes.

[00:09:16] Speaker 02:
At page 789, an instance in 2017.

[00:09:19] Speaker 02:
OK.

[00:09:21] Speaker 03:
Just give me the pages.

[00:09:22] Speaker 02:
Beg your pardon?

[00:09:23] Speaker 02:
You can save time.

[00:09:24] Speaker 02:
Just give me the pages.

[00:09:25] Speaker 02:
789.

[00:09:26] Speaker 03:
Yep.

[00:09:27] Speaker 02:
er twenty eight hundred and twelve through twenty eight hundred and fifteen and er two thousand seven hundred and twenty seven and my first one was eleven thirty nine what is the last one twenty seven twenty seven pages seven eighty nine i'll do them in numerical order pages seven eighty nine eleven thirty nine twenty eight twelve to fifteen

[00:09:53] Speaker 02:
2812 to 15 and 2727 2727 okay with regard to the interstitial lung disease as my opposing counsel indicated Miss Nevin went up to see dr. Bridget Collins at the University of Washington who's the director of the Center for interstitial lung disease there and She did the walking test

[00:10:13] Speaker 02:
Ms.

[00:10:14] Speaker 02:
Nevin had asserted on her function report that she could only walk 20 feet without oxygen before collapsing.

[00:10:20] Speaker 02:
And she later amended that.

[00:10:22] Speaker 02:
To be fair, she responded to a question at the hearing where it said 50 or 100 or 150 feet.

[00:10:30] Speaker 02:
She said, I cannot walk that far.

[00:10:32] Speaker 02:
In fact, Dr. Collins discovered that in a matter of six minutes, she could walk 1,417 feet or the length of more than four football fields while carrying on a conversation with Dr. Collins.

[00:10:44] Speaker 02:
And because of this, Dr. Collins said, I cannot find her disabled because of her lung disease at this time.

[00:10:52] Speaker 02:
So,

[00:10:53] Speaker 02:
That is not at all evidence that supports a disability due to interstitial lung disease at any part of the period at issue.

[00:11:04] Speaker 02:
With regard to the evidence of the medical experts, the first medical expert back in the 2018 hearing, Dr. Smiley, was referred to.

[00:11:20] Speaker 02:
His testimony was equivocal.

[00:11:22] Speaker 02:
The ALJ at that time asked him on page 157 of the record, the objective evidence would point us to what?

[00:11:30] Speaker 02:
The answer was light.

[00:11:32] Speaker 02:
That is, light exertional limitation rather than sedentary, as she would prefer.

[00:11:38] Speaker 02:
At page 160 of the record, is there any objective evidence suggesting she would be unable to work four days a month?

[00:11:45] Speaker 02:
Dr. Smiley answers, no.

[00:11:48] Speaker 02:
With regard to the second medical expert at the 2021 hearing, that was Dr. Hopper.

[00:11:57] Speaker 02:
Dr. Hopper told the ALJ, and this is very important for the issue of reopening, Dr. Hopper told the ALJ that it was not proper for a physician who had not examined the patient, had never seen the patient, such as the DDS physician, Dr. Fitterer, in the intervening claim that led to the subsequent approval.

[00:12:20] Speaker 02:
That it was not proper, Dr. Hopper said, to diagnose a somatiform disorder, having never seen the claimant.

[00:12:29] Speaker 02:
Well, so that suggested to the ALJ that the whole premise of the DDS physician's allowance in 2018 was not correct.

[00:12:43] Speaker 02:
So the medical expert testimony is very much more equivocal than was presented, and in fact, supports that there's substantial evidence in support of the ALJ's claim throughout the period from August of 2017

[00:12:58] Speaker 02:
all the way to July of 2020.

[00:12:59] Speaker 01:
Now, we don't quarrel- Did Dr. Hopper make that testimony exactly when in 2021?

[00:13:04] Speaker 02:
May you pardon?

[00:13:05] Speaker 01:
When exactly was Dr. Hopper's testimony in 2021?

[00:13:08] Speaker 02:
At the second hearing in- November.

[00:13:11] Speaker 02:
November of 2021.

[00:13:12] Speaker 02:
Or at the- That's more than two years.

[00:13:16] Speaker 02:
At the hearing on the second.

[00:13:17] Speaker 01:
Right.

[00:13:18] Speaker 01:
That's more than two years past the initial notice of the grant of benefits.

[00:13:23] Speaker 02:
Yes, Your Honor, it was.

[00:13:24] Speaker 02:
It was.

[00:13:27] Speaker 02:
Now, with regard to the reopening that would take it back to September of 2018, not all the way back, in any case, not all the way back to August of 2017, as was her initial claim, but to September 2018.

[00:13:42] Speaker 02:
But with regard to the propriety of the reopening,

[00:13:46] Speaker 02:
That issue is ordinarily not judicially reviewable.

[00:13:51] Speaker 02:
It's discretionary.

[00:13:51] Speaker 02:
It's not a final decision, according to the statute, unless she makes out a culpable constitutional claim.

[00:13:58] Speaker 03:
Why is it not final?

[00:14:00] Speaker 03:
If we leave it alone, it's final, right?

[00:14:03] Speaker 03:
That's the answer.

[00:14:07] Speaker 02:
I mean, in effect, it's final.

[00:14:09] Speaker 02:
But the rule is that it's not judicially reviewable.

[00:14:13] Speaker 01:
See, these reopening cases- Counsel, can I say what might trouble with your position?

[00:14:17] Speaker 01:
The Supreme Court case that you're relying on dealt with denials of motions to reopen.

[00:14:22] Speaker 03:
Right.

[00:14:22] Speaker 01:
But then we have a whole lot of case law from a lot of circuits saying when there has been a reopening and then a subsequent final decision, that that causes both the final decision to

[00:14:36] Speaker 01:
the subject review as well as the basis for that, which would be the decision to reopen, essentially that there is a meaningful distinction between a denial of a motion to reopen and a reopening by an agency that leads to a new final decision.

[00:14:52] Speaker 01:
Can you address that, please?

[00:14:54] Speaker 02:
I understand that.

[00:14:55] Speaker 02:
I think I understand.

[00:14:58] Speaker 02:
I may or may not understand, but no, I think I understand the distinction that you're making, Your Honor.

[00:15:01] Speaker 02:
But we think that regardless whether it arises in the context of a request to reopen or a denial to reopen, they have to make out a colorable constitutional claim.

[00:15:14] Speaker 02:
Why?

[00:15:16] Speaker 01:
Why is there no difference in your view?

[00:15:27] Speaker 02:
That, I admit that the Ninth Circuit cases have typically dealt with it arising in a different context.

[00:15:34] Speaker 02:
But we just think that the ordinary rule is that they have to make out a codable constitutional claim for it to be a judicially reviewable matter.

[00:15:45] Speaker 02:
We don't think that they've made out.

[00:15:46] Speaker 03:
You still haven't really answered Judge's question.

[00:15:52] Speaker 03:
You've just asserted what you think is the standard of review and what we can get at, but you've not answered her as to the relevance of that distinction.

[00:16:00] Speaker 02:
Well, I'm sorry, Your Honor.

[00:16:09] Speaker 02:
The distinction is between a request to reopen and a denial of reopening.

[00:16:20] Speaker 01:
I mean, I've read now cases from, I believe, the 5th, 7th, and 11th where they have

[00:16:30] Speaker 01:
back similar to ours, where there is a reopening by the agency.

[00:16:34] Speaker 01:
And the question was, and then another essentially final decision, essentially reversing the prior decision that had been reopened.

[00:16:43] Speaker 01:
And the question was, does the court have jurisdiction to review?

[00:16:47] Speaker 01:
And the answer was yes, we have jurisdiction to review

[00:16:52] Speaker 01:
because there is a new final decision, which is subject to judicial review.

[00:16:58] Speaker 01:
And because we have jurisdiction to review any final agency decision, like any other grant or denial of benefits, we also have jurisdiction to review the basis for that new final decision, which would include the agency decision to reopen.

[00:17:16] Speaker 01:
which is meaningfully distinguishable from an agency denial of a motion to reopen.

[00:17:23] Speaker 01:
So the courts in these other circuits have drawn that distinction.

[00:17:26] Speaker 01:
And my question is, why shouldn't we?

[00:17:33] Speaker 02:
I think it's wrong because a I think it's wrong because a final decision merely contemplates the decision

[00:17:43] Speaker 02:
the merits decision and does not include, does not properly include the decision to reopen.

[00:17:51] Speaker 01:
Can you offer me some reasoning as to why?

[00:17:55] Speaker 02:
I can't, other than the definition of the statute in 42 USC 405G.

[00:18:01] Speaker 03:
And I'm sorry that I'm not able to give you more than that, but... Assuming that the reopening is reviewable by us,

[00:18:09] Speaker 03:
Why isn't the decision too late?

[00:18:12] Speaker 03:
Why isn't it outside the two years?

[00:18:16] Speaker 02:
Your Honour, assuming that it is reviewable, then I think the reopening honestly is outside the two years.

[00:18:21] Speaker 03:
Okay.

[00:18:23] Speaker 02:
We would simply request that, on the basis of these facts, that the entire period, and certainly the beginning period from 2017 to 2018, be affirmed because substantial evidence supports the OJ's decision.

[00:18:39] Speaker 02:
Thank you.

[00:18:47] Speaker 00:
I'd like to address two points made by my opposing counsel, and one was regarding the evidence that he cited of drug-seeking behavior.

[00:18:55] Speaker 00:
Now, anybody can go through a long file and find remarks.

[00:19:00] Speaker 00:
What was noteworthy in this case is a medical expert, Dr. Hopper, was asked to do that.

[00:19:05] Speaker 00:
The administrative law judge made it very clear he encouraged her to look through the file for evidence of both exaggeration and drug-seeking behavior, and she didn't find it.

[00:19:15] Speaker 00:
And so for the administrative law judge to go back and to say that his own reading of the record showed drug-seeking behavior when he had specifically asked and gotten an answer from a medical expert that there was none, it was unreasonable in this case.

[00:19:31] Speaker 03:
What do you do with the walking in the doctor's office that seems to be inconsistent with her own testimony as to how far she could walk?

[00:19:43] Speaker 00:
Ms.

[00:19:44] Speaker 00:
Nevin is not the best judge of how far she can walk, which she knows is that she feels... Wait a minute.

[00:19:50] Speaker 03:
If I tell you I can walk X, I think I'm the best witness.

[00:19:54] Speaker 00:
True.

[00:19:54] Speaker 03:
And I think she's probably the best witness as to how far she can walk.

[00:19:58] Speaker 03:
But we now have her testimony, which seems to be inconsistent with what she did in the doctor's office.

[00:20:07] Speaker 03:
So what do we do with that?

[00:20:09] Speaker 00:
I guess my point, Your Honor, was that she said 20 feet at some points.

[00:20:13] Speaker 00:
She gave other distances.

[00:20:16] Speaker 00:
But the test in that case showed that she could do some walking on one occasion in a doctor's office.

[00:20:24] Speaker 00:
It doesn't say anything about stairs.

[00:20:26] Speaker 00:
It doesn't say anything about what kind of walking was involved.

[00:20:29] Speaker 00:
So even assuming that she could walk a bit further I know that she could do the walking the six minutes of walking That doesn't show that she could perform light work It's still well within sedentary work which involves six hours of sitting but up to two hours of standing and walking So our contention is that that's perfectly compatible with what?

[00:20:50] Speaker 00:
We're alleging and what the doctors found she could do in this case Thank you

[00:20:59] Speaker 01:
Thank you for your arguments this matter is submitted.