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

[00:00:06] Speaker 02:
Welcome, welcome to the Ninth Circuit.

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I'm going to be calling the cases in the order that they are listed.

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There are several matters that have already been submitted on the briefs and record.

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And those cases are Abrahamian versus Garland.

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Stanfleet versus Stump and Government Absolutions Inc.

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versus City of New Haven.

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So the first case up for argument this morning is Palmer versus O'Malley.

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When you're ready, Council.

[00:00:50] Speaker 00:
Good morning, Your Honors.

[00:00:51] Speaker 00:
May it please the Court, Brian Ellickson for Denise Palmer, the appellant in this Social Security Disability Matter.

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With the Court's permission, I'll try to reserve two minutes for rebuttal.

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All right.

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The Administrative Law Judge in this Social Security Disability Matter denied Ms.

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Palmer's application for disability benefits, erred in several ways in doing so.

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First, with regard to Ms.

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Palmer's testimony and reporting to the agency, the ALJ erred in articulating clear and convincing reasons for discounting

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her testimony.

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When we look at the decision, we see a common refrain in ALJ decisions.

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We see boilerplate language saying something like, the claimant's testimony is not entirely consistent with the evidence for the reasons set forth in the decision.

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And then a simple summary of the medical evidence without a connection between that evidence and any specific allegation in the claimant's testimony or reporting or any connection between the two.

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The court has held in cases going back, for example, to Brown-Hunter that this is a problematic evaluation of testimony, that there needs to be more than a simple summary of the medical evidence.

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There must be a connection between that evidence and testimony that's being discounted or disregarded.

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So apply all those principles to what the ALJ did here.

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So in this case, the judge issued a boilerplate paragraph and then simply summarized the evidence.

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Some positive evidence, some negative evidence,

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but didn't connect her evaluation of the evidence to Ms.

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Palmer's testimony, testimony that included her experience of pain, limitations in her ability to lift or sit, her reporting to the agency that she has to lay down and rest during the day, factors which would render full-time work impossible and would, if credited, lead to a finding of disability.

[00:02:40] Speaker 03:
How does the recent case that just came out, I guess what's called Ferguson versus O'Malley, I think there was a 28-J letter, does that help you?

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It stands for the proposition again that there must be a discussion of how the evidence affects the evaluation of credibility.

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Ferguson was a little bit more tangential than what we have today because in that case there was no discussion of evidence as to a particular symptom.

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In that case it was headaches.

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But it does stand for the proposition that there must be some sort of connection between the medical evidence that's being evaluated and the actual testimony

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or reporting that is being discounted.

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You know, the court has held, again, going back to Brown-Hunter, that you can't simply summarize the evidence, say it's inconsistent with the testimony, and leave the rationale a mystery.

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In terms of the application, counsel, sometimes it is difficult to tell, especially, I'll speak for myself, not having any particular

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expertise in reviewing medical records or understanding their significance.

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So sometimes it is quite difficult to tell what the connection is.

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But what if it's fairly obvious what the connection is?

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To what extent can the court draw its own inferences?

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So for example, in this particular case, it's relatively straightforward, arguably relatively straightforward, that she uses a cane, for example, and she reported all of these symptoms.

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So the court basically, the ALJ basically said, well, she does have debilitating conditions.

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It's just that the severity of it, the extent of it is exaggerated.

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And then he goes through and talks about it.

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the findings, including some reported results that show pretty normal, like you talked about how she was ambulatory, so that tends to undercut the need for a cane, et cetera.

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The connections, I'm assuming that the other side will argue, can be drawn from this record, even though the ALJ wasn't as explicit as it should have been.

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How do you respond to that?

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Judge, I think, Judge Winn, I think if the ALJ in this case had done what you have just

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That would be arguably supported.

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The judge didn't take those steps.

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The judge simply summarized the evidence and leaves to us to interpret the significance of that summary.

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And that is something the ALJ should do, not something that this court should be doing.

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The court need not fill in the gaps in the ALJ's rationales.

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But, counsel, I'm looking at page six of the AOGA's decision, and the sentence goes, the objective medical evidence does not support the claimant's central allegations of debilitating physical impairments.

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And then it does exactly what Judge Winn did and listed all the evidence that supports that.

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What more do we need to do?

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I think what the Court has said, Judge, is that there must be some connection between parts of the testimony

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and not just the general one-sentence summary.

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Well, I mean, if you go two paragraphs above, he describes what the testimony was.

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So it just seems like he's connected all the dots.

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The ALJ has connected all the dots.

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What the testimony was, then he says that the objective medical evidence doesn't support that, and then enlists all the objective medical evidence.

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Judge, what we see is a simple summary of one, a summary of the other, without enough of a connection, in my mind, Judge, pursuant to cases like Brown-Hunter.

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But even, Judge,

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If the court were to find that the ALJ's discussion of the evidence was sufficient, it's the only rationale that the judge gives.

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And in cases going back to Cotton v. Bowen, this case, this court has held that testimony regarding pain cannot be disregarded solely because of inconsistencies with the objective medical evidence.

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There must be something more.

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And those, there have been cases, they're cited, for example, in Smart,

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where objective medical evidence plus activities of daily living plus response to treatment, you know, that can be a sufficient basis to discount a claimant's testimony, but that wasn't done here.

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So even if this court were to find that the objective medical evidence was sufficiently tied to the testimony, there's no other rationale that allows for Ms.

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Palmer's testimony to be discounted here.

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Turning to the medical opinions in this case, there are two medical opinions, one from a treating doctor, one from an examining doctor,

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that are inconsistent with sustained work.

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Despite the court's suggestion in cases like Woods that the factors of supportability and consistency be used with precision, the judge in this case did not evaluate the supportability and consistency of those opinions appropriately.

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When we look at Dr. Young's opinion, he's the treating physician in this case,

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The judge or the ALJ made a one sentence evaluation throwing in the word support and consistent, but didn't evaluate the supportability or consistency of the opinion.

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The judge did not, or the ALJ rather, did not look at Dr. Young's opinion and the rationales or justifications for his opinion in the opinion itself.

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Things like a diagnosis of lumbar radiculopathy, a reporting of and treatment for back pain.

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The ALJ did not look at the consistency

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of that opinion, not just with the evidence of record, but with the opinion of record.

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Dr. Young's opinion is consistent with that of Social Security's consulting examiner, Dr. Cost Leland, who both opined to work preclusive limitations, not mentioned by the ALJ at all.

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And so an insufficient evaluation of the supportability and consistency of those opinions.

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Similarly, the consulting examiner, Dr. Cost Leland, opined to limitations which take us out of the realm of sustained work.

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The ALJ made a

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one or two sentence evaluation, but didn't properly evaluate the consistency or supportability of that opinion.

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In looking at the supportability of the opinion, the judge didn't evaluate whether or not Dr. Coslieland's findings on examination supported that opinion and didn't evaluate that opinion's consistency with

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other opinion evidence of record, such as Dr. Young's.

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The similarity of those opinions should enhance the reliability of both.

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The ALJ did not evaluate the consistency of those opinions.

[00:09:01] Speaker 02:
You wanted to save a little bit of time.

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I did, Judge.

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Thank you for saving it for me.

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Unless there are any further questions, I'll reserve the balance of my time.

[00:09:20] Speaker 01:
Good morning, Your Honors.

[00:09:22] Speaker 01:
Elizabeth Fier on behalf of Martin O'Malley, the Commissioner of Social Security.

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I am going to go right where Judge Wen did, which is to say that the ALJ's decision here does have sufficient connection between the evidence and her reasoning.

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But to the extent that it has a connection, we're the ones who are drawing those inferences, right?

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explicitly make those connections?

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I believe that she did because as you pointed out on page, I think it's on page 35 of the ALJ decision, let me just check that, 34, she says the

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objective medical evidence does not support claimant's central allegations of debilitating physical impairments.

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And so what then the elder goes into those mild to moderate findings in all those physical categories that claimants alleging are disabling her back pain her ankle injury some other things with her left foot and shows how every single one of the objective tests

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proves that the claimant's impairments are only mild and moderate at most.

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Where does she do that?

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I'm sorry?

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Where does she do that?

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In the decision.

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On page 34.

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The second... Hold on.

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Just a sec.

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Page 6, ER 34.

[00:10:47] Speaker 01:
Okay, I don't have the ER.

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It's ER 34.

[00:10:50] Speaker 04:
It's page 6 of the ALJ decision.

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Yes.

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in ... Okay.

[00:11:00] Speaker 01:
Now, what are you referring to?

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Which paragraph?

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The paragraph that starts with the objective medical evidence doesn't support the claimant's central allegations of debilitating appearance.

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But let me actually back you up a little bit.

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Earlier, the ALJ discusses on page 33 of the record

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When applying for benefits, Klaymen alleged she was unable to work due to problems including but not limited to bulging discs, pinched nerves, arthritis, numbness in her neck and shoulder pain.

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And then on the following page, which I pointed to, which starts with that.

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statement about the objective evidence, then you look through what's in that page.

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X-rays of the foot, mild to moderate degenerative disease.

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X-rays of the foot again, moderate degenerative disease.

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MRI of the lumbar spine was normal with no significant compromise of the central canal.

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only mild facet arthropathy with minimal disc bulging.

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You go onto a CT scan of the cervical spine, same thing, normal alignment, MRI follow-up, mild desiccated discs, only mild bulging and minimal neuroformal narrowing.

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So those two things juxtaposed that way show what the ALJ's reasoning is.

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And the court can draw inferences to answer your earlier question that

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Yes, you can draw inferences.

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And in this case, I think it is unlike the Ferguson case where the impairment was headaches, which are very difficult to document objectively.

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Here we have multiple orthopedic impairments that should clearly be documentable objectively, and here they are in their mild to moderate findings.

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Yes, it would have been better if the ALJ had specifically said, here's what claimants saying, these mild to moderate findings do not support her allegations in that paragraph.

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But it's clear from her reasoning.

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Counsel, can I ask, aren't we compelled to draw those inferences under the substantial evidence standard?

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Unless the record compels the opposite inference, we have to draw in favor of the ALJ.

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Is that how you agree?

[00:13:01] Speaker 01:
I would say that's fair, yes.

[00:13:03] Speaker 01:
And your case law says that you look into the whole decision, not just one specific area where the ALJ is talking about.

[00:13:09] Speaker 03:
Well, our case law also says that the ALJ is supposed to show or demonstrate the inconsistencies

[00:13:15] Speaker 01:
Well, and I think juxtaposing her allegations with the very mild to moderate objective findings does that.

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What's really missing here is really the analysis.

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And so we do to some extent have to fill in the gap, don't we?

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Because we have said, and we've had multiple cases talking about

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how subjective pain is very difficult to evaluate.

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And so in instances where somebody's reporting subjective pain, for example, headaches is this example you gave, is the classic one.

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Because it is so subjective and difficult, we need better, more clear and convincing explanations as to why that testimony is going to be rejected.

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the ALJ acknowledged that she does have these issues that she's reporting.

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It's just the severity of those issues he thinks really doesn't rise.

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Essentially, she's exaggerated the symptoms.

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That's what the ALJ really believed.

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So I don't know that reciting the objective evidence alone would be sufficient without an explanation of here's the objective evidence.

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This is what they show, right?

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And here's why.

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the objective evidence really does not support the extent of the pain and severity of the symptoms that she's reporting.

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It's that here's why part.

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That's the part that we have to fill in on our own.

[00:14:42] Speaker 01:
Well, I think when you have

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First of all, that's not the only reason the LDK for discounting the subjective allegations, but I'll get to that after this.

[00:14:50] Speaker 01:
You have a claimant here who's saying she can't walk on her own, she can't get out of bed on days, and this is mostly based on her back impairment.

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She's gone to the emergency room for back problems, but every single time she's ambulatory upon admission and discharge, and she's noted to have a normal gait.

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The extent of her extreme allegations is just not supported by these mild to moderate findings, no matter how subjective pain may be.

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And then to get to my other points, the LJ does talk about inconsistencies between the claimant's allegations and the evidence.

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And that walker is a major issue here.

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Claimant tells Dr. Koss-Leland at the consultative examination in June

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that she's been using a walker that was prescribed by an ER for three weeks.

[00:15:39] Speaker 01:
Well, the closest ER visit is May 22nd, 2018.

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And on page 560 of the record, the doctors at the ER noted that she needed no ambulatory device.

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On page 561, they note she has a normal gait.

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And on page 565, they note she's discharged ambulatory.

[00:15:57] Speaker 01:
That's an inconsistency that the agency pointed to.

[00:16:00] Speaker 03:
That doesn't mean that she doesn't need a walker for other purposes.

[00:16:04] Speaker 01:
Well, it does when they say no ambulatory device is needed.

[00:16:07] Speaker 01:
And that's on page 560.

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Why do you draw that inference?

[00:16:09] Speaker 01:
That's on page 560.

[00:16:10] Speaker 03:
No, but why does that mean that she doesn't need one at any other time?

[00:16:15] Speaker 01:
Well, she's, this is a few weeks before.

[00:16:19] Speaker 03:
Does one need a prescription for a walker?

[00:16:23] Speaker 01:
One, given, again, given Klayman's extreme allegations, you would expect.

[00:16:27] Speaker 03:
Oh, answer my question.

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Just one.

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Where, where, I mean, I,

[00:16:31] Speaker 01:
Okay, you can go down to the local, you can order one right off Amazon.

[00:16:37] Speaker 01:
The simple answer is no.

[00:16:38] Speaker 01:
But you have case law that's, I mean, this woman is obviously she's using a walker periodically, but she's not using it all the time, which is what she's saying she needs.

[00:16:47] Speaker 01:
And the ALJ used that as an inconsistency between her subjective allegations and the record evidence.

[00:16:52] Speaker 01:
And that is supported also by ELJ notes in December 2019, another treating source starts to treat her and doesn't note that she's using a walker.

[00:17:02] Speaker 01:
And he treats her specifically for a toe injury, and that's on page 709, and says she's ambulating normally.

[00:17:09] Speaker 01:
This is around the time that Klayman is alleging that she needs a walker to work.

[00:17:14] Speaker 01:
Another thing in the evidence I'd like to direct your attention to is she's undergoing physical therapy and in

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December 2019, the physical therapist notes that she's capable of walking down steps into a pool, into and out of a pool by herself.

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Someone who cannot walk without a walker would not be capable of that.

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And then the third thing the ALJ used to discount claimant subjective allegations is the course of treatment.

[00:17:42] Speaker 01:
And the ALJ notes this claimant was not recommended for any kind of back surgery, even though she's claiming to have disabling back pain.

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She was not sent for additional tests such as EMG testing or anything like that.

[00:17:52] Speaker 01:
So those are three reasons that are supported by the commissioner's regulations, 1529, 404-1529, and by multiple cases in this court has issued.

[00:18:04] Speaker 01:
So I'm just about out of time.

[00:18:06] Speaker 01:
So if you have any questions about the medical opinions.

[00:18:11] Speaker 01:
It doesn't appear that we do.

[00:18:12] Speaker 01:
Okay.

[00:18:12] Speaker 01:
Thank you.

[00:18:13] Speaker 01:
But substantial evidence does support this ALJ's decision.

[00:18:15] Speaker 01:
Thank you.

[00:18:16] Speaker 02:
Thank you, counsel.

[00:18:27] Speaker 00:
Your honors, a lot of the inconsistencies that my colleague just pointed out may or may not be inconsistencies, but the ALJ didn't raise them.

[00:18:36] Speaker 00:
The ALJ did not compare Ms.

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Palmer's reporting of use of a walker to Dr. Costleyland to any prescription in the record.

[00:18:47] Speaker 00:
The ALJ simply says there's no prescription for a walker.

[00:18:50] Speaker 00:
And as this court has said, and as I think is obvious to anyone who's gone to a Walgreens, a Walker can do not require a prescription.

[00:19:01] Speaker 04:
Well, didn't the ALJ also know that she was ambulatory after leaving the emergency room?

[00:19:05] Speaker 04:
So that suggests he doesn't need it?

[00:19:08] Speaker 00:
Doesn't need it all the time.

[00:19:09] Speaker 00:
And it suggests it.

[00:19:11] Speaker 00:
But the inconsistency that my colleague brought out isn't set forth explicitly by the judge in the decision.

[00:19:19] Speaker 00:
And I would note that, again, even if we were to assume, or for purposes of argument, say that the judge's evaluation of the objective medical evidence was adequate, there's no plus one.

[00:19:32] Speaker 00:
There's no something additional that would allow under our court's case law her testimony to be discounted.

[00:19:38] Speaker 00:
There's no discussion of her activities of daily living.

[00:19:40] Speaker 00:
There's no discussion of her response to treatment on an ongoing basis, nothing upon which

[00:19:48] Speaker 00:
that the judge could permissibly discount Ms.

[00:19:51] Speaker 00:
Palmer's testimony.

[00:19:53] Speaker 00:
Because of those errors, because of the errors in evaluating the judge's errors in evaluating the supportability and consistency of multiple medical opinions that support a finding of disability, we'd ask for remit for a computation of benefits in this matter, Judge, unless there are any questions.

[00:20:08] Speaker 00:
I thank you for your time.

[00:20:10] Speaker 02:
Thank you, counsel, for your time as well.

[00:20:12] Speaker 02:
The matter is submitted.