[00:00:00] Speaker 01:
Good morning.

[00:00:02] Speaker 01:
I'm Katherine Dykes.

[00:00:02] Speaker 01:
I'm an attorney for Yvonne Jones.

[00:00:05] Speaker 01:
I want to focus my argument today on the unconvincing reasons for rejecting the symptom testimony of Ms.

[00:00:12] Speaker 01:
Jones.

[00:00:13] Speaker 01:
I'm arguing that the ALJ really mischaracterized the treatment notes to reject her testimony.

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One of the things that they used to reject her testimony was a treatment note of September 2018 of mild weakness findings.

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And I think it's really important in that same treatment note, her doctor stated that she was not any better.

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And this treatment note was used to reject her testimony that she was not improved.

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And her own doctor said that she was not any better.

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Additionally, she had findings of atrophy in her legs.

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numbness and tingling down her legs.

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And if you compare that weakness finding to the November 2017 treatment note, it also has mild weakness.

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So that's very consistent with her testimony that she has not improved from her treatment.

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She has a very invasive, exhaustive treatment.

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She exhausted her treatment options.

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She had a fusion.

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She has spinal cord stimulator.

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Ms.

[00:01:22] Speaker 04:
Dykes, I think the ALJ did provide a general summary that touched on all of these questions.

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I guess where would we look in the ALJ's opinion to focus in on the key aspects that the ALJ might have missed with respect to her symptom testimony?

[00:01:46] Speaker 01:
So I don't have the transcript number, but where he states that he agrees that there's some symptoms from treatment, there's a paragraph where he states that they're not as severe as she testifies to.

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And he states a couple of reasons.

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One of those reasons is improvement with this drug called Cosentix.

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And that was for her psoriatic arthritis.

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and Cosentex was a drug where she did have some relief.

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However, Cosentex impairs wound healing, so she cannot take that drug while she's having all these invasive treatments for back pain.

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Further, Dr. Shehada notes in his treatment note in January 2019, which is transcript,

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1110 that she was only able to take consentix briefly because of the surgery.

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She also lost her insurance, and Dr. Shahada is her rheumatologist, which is one of the few rheumatologist opinions in the record.

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that discusses psoriatic arthritis.

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Go ahead.

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Council, while you're talking about Dr. Shahada, and I'm gonna ask this question of your friend as well.

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The government says at page seven of their brief as a heading for one of the sections, Dr. Shahada completed a check the box questionnaire assessing extreme limitations.

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There are check the box questionnaires that doctors can and do fill out.

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Do you view Dr. Chejeda's questionnaire, which I think starts at ER 1976, as a check the box questionnaire?

[00:03:33] Speaker 01:
Well, simply because there's box that are being checked doesn't mean that you can ignore the content of what's being said.

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He does have a description.

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He does have the basis of his opinion.

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He also has a treatment note with objective findings in her hands that are very relevant to her limitations.

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She had swelling.

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She had sausage fingers, and she has

[00:04:02] Speaker 01:
consistent and credible findings or credible reports of recurrent flares of psoriatic arthritis.

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Let me ask you this.

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Of course, all these social security disability cases involve lots of medical terms and so on, and we have to rely on the experts in this.

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I would like to know whether you think we can hold that Dr. Shahada's opinion was not consistent with medical evidence in this particular case with P.A.

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Neal, Dr. Ashwena, Dr. Hutchinson's report

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if the ALJ did specifically draw that conclusion?

[00:04:39] Speaker 01:
I'm sorry, can you repeat that?

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In other words, the ALJ didn't say expressly that Dr. Shahada's opinion was inconsistent with the three other doctors that I referred to.

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Is that a problem?

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Can we draw that conclusion even if the ALJ didn't expressly state

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that the three other physician slash medical people's opinions were different than Dr. Shehada's?

[00:05:05] Speaker 01:
Well, Your Honor, the other medical opinions in the file show a lot of objective findings.

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I mean, the... They're inconsistent with Dr. Shehada, right?

[00:05:18] Speaker 01:
Well, the ultimate limitations are inconsistent, but... See, that's what we struggle with.

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We're a court of appeal.

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We get the ALJ, you use all this evidence, you get one doctor, Dr. Shahada, that basically confirms what you said.

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You get all the other evidence and the record says just the opposite.

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So the ALJ has to make a decision and it appears that the ALJ is saying, I don't credit Dr. Shahada's views as much as the others because it's inconsistent with the medical record.

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So what do we do with that?

[00:05:52] Speaker 01:
Well, you know, I think that certainly I think the treating doctor with more expertise should get more credit than a reviewing or consulting doctor, but that's not what the regulations are anymore.

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You know, I'm precluded from arguing that, but I certainly think that the treatment history has to be looked at, the relationship, you know, there are still criteria within the new regulations that require you to look at the background of... But I'm still struggling with, we non-experts,

[00:06:36] Speaker 02:
have the ALJ evaluating what three different medical people said that is inconsistent with Dr. Chejeda, who said what you wanted to say.

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That was way the conclusion, I think, under the regs was, hey, you lose.

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How do we get around that under the current regs?

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Well, I don't think that the other doctor's opinion was consistent with their own treatment notes.

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With their own treatment notes?

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In other words, you're saying that the three Neal's, Juana, and Hutchinson's reports were inconsistent with their own notes?

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Certainly Neal.

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And I think the ALJ said that in his opinion, is that their own treatment notes, his finding of what the exam findings were,

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He thought it warranted additional limitations by, you know, the ALJ agreed that the treatment notes for Neil PA warranted additional limitations.

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I think we're getting away from... I still get back to the same problem.

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Yeah.

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The ALJ was there.

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The ALJ evaluated the witnesses, evaluated the medical evidence, made a determination.

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Based on the current regulations, how do we get around that, in your opinion?

[00:07:56] Speaker 01:
Well, if the Dr. Shehada's opinion is consistent with his own treatment notes and consistent with other notes in the file, I think that that should be persuasive.

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Even though the others went the other way.

[00:08:10] Speaker 01:
Correct.

[00:08:11] Speaker 03:
And one of the things you're arguing we need to look at is whether the ALJ gave specific enough reasons for discounting either Dr. Shahada or the limitation symptom testimony of your client, right?

[00:08:28] Speaker 01:
Correct.

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And a lot of the reasons that he used to reject the symptom testimony are the same reasons that are repeated throughout the record.

[00:08:39] Speaker 01:
Just briefly, I want to talk about they keep referencing this ER visit where she went for an ingrown toenail and fissures on her feet where she had normal balance.

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But the context of that record shows that she was struggling to walk during that time period.

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She recently fell.

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Her physical therapy exams from that time period show that her rehab potential was fair.

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She was using a walker.

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She was clearly struggling in that note to walk.

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And she was getting doctor treatment on her feet to conclude that she, you know, a normal gait and balance finding is determinative that she can walk fine.

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and is not struggling to walk, I think is a mischaracterization of the record.

[00:09:30] Speaker 01:
There's also some information about the physical therapy notes and about how she had improvement from the physical therapy.

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However, the physical therapy notes repeatedly, even the last physical therapy note states that the aggravating factors to her pain are sitting, standing, changing positions, and she was limited to no lifting.

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The important piece that I want to convey is that she may have had some improvements from her symptoms from all of these treatments.

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However, it did not change her capacity to function.

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Your time is up.

[00:10:11] Speaker 02:
Let me ask my colleagues whether either has additional questions.

[00:10:14] Speaker 02:
All right.

[00:10:15] Speaker 02:
Thank you very much.

[00:10:15] Speaker 02:
Let's hear from the government.

[00:10:25] Speaker 00:
Good morning.

[00:10:26] Speaker 00:
Catherine Watson for the commissioner.

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The question for this court is whether more than a mere scintilla or substantial evidence supports the ALJ's findings, and this court should affirm.

[00:10:39] Speaker 04:
Well, Ms.

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Watson, you know that that's not our court's test, for better or worse.

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We are actually looking for clear and convincing evidence in the record to reject the symptom testimony, which is kind of at the center of this, right?

[00:10:55] Speaker 00:
The standard for rejecting, Ninth Circuit's standard for rejecting symptom testimony is clear and convincing standard, clear and convincing reasons supported by substantial evidence.

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And we are not going to, it is our position that both tests are met, even if we adhere to the statutory standard, which is substantial evidence, but that's correct.

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So turning to the symptom testimony, it is our position that both substantial evidence and clear and convincing reasons were given to reject her symptom testimony.

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As noted, the ALJ cited to objective evidence.

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There is mixed evidence in the record.

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The ALJ discussed evidence both detracting and supporting her claim.

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But ultimately, the ALJ gave clear and convincing and substantial evidence to reject her testimony.

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The ALJ cited to PA Neal's exam, where there were largely unremarkable findings, such as normal range in motion in the neck of spine, even if there were some pain, normal range in motion in other areas of the body,

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appropriate balance, the ability to stoop without difficulty.

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The ALJ cited to other records, and not just one.

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That's all.

[00:11:59] Speaker 03:
I want to move to the rejection of Dr. Shahada's opinion.

[00:12:04] Speaker 03:
Sure.

[00:12:08] Speaker 03:
taught or referenced previously cited medical evidence as to why that's inconsistent, but where did the ALJ explain why the medical evidence

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is inconsistent with the rheumatologist's findings, for example, that the claimant can't lift more than 10 pounds, carry more than five pounds, walk without a cane, sit for more than 30 minutes, work without taking frequent unscheduled breaks, being absent more than three times a month,

[00:12:45] Speaker 03:
Where are those tied together in the ALJ's opinion as to why the cited evidence is inconsistent with Dr. Shahid's clear testimony about what he believed are the limitations for the claimant working?

[00:13:04] Speaker 00:
So the A.L.J.

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cited to largely normal examination findings when citing to evidence that was inconsistent with.

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And I think what you're getting to is the articulation standard.

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And this court is held in Molina v. Estrue, even when an A.L.J.

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explains his findings with less than ideal clarity.

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A court should still form if inferences can reasonably be inferred.

[00:13:27] Speaker 03:
So looking at the specific sites... But do you concede that this wasn't... I want you to finish your answer, but do you concede that there wasn't sufficient clarity here, so we have to, if we're going to uphold the commissioner's determination, we have to move to that step too?

[00:13:44] Speaker 00:
No, I wouldn't concede that there wasn't sufficient clarity, but I would say even if this court were to find there wasn't sufficient clarity, the ultimate question is whether the ALJ's findings can reasonably discern.

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And it's our position that the ALJ sufficiently explained his findings and they can be reasonably discerned.

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So turning to the sites that the ALJ cited, the records the ALJ cited when the ALJ found that it was inconsistent with the medical evidence.

[00:14:09] Speaker 00:
The LJ cited to PA Neal's exam, specifically the LJ cited to CAR 1356 or 10F4.

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That exam showed an inability to walk without an assistive device.

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Dr. Shineta found that she required an assistive device.

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That's on CAR 1356.

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That exam showed normal neck range of motion, albeit with pain, normal shoulder, elbow, normal fine manipulative skills, even though Dr. Shahada found marked manipulative limitations.

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That exam also found that she could stoop without difficulty.

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That's on 1355.

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Dr. Shahada found that she must avoid stooping.

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The LJ also cited to the fact that she described minimal symptoms with her back brace.

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That's on CAR 584.

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The LJ, Dr. Shaheda, discussed both psoriatic arthritis and degenerative joint disease in his back when describing her limitations.

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But in contrast to debilitating back limitations, the LJ cited to record showing minimal symptoms with a back brace.

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And the LJ also cited two other examination findings showing normal gait, normal inspection of the neck.

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And so those findings as a whole would be substantial evidence supporting the ALJ's consistency finding.

[00:15:34] Speaker 04:
Even on the pain questions, I think that's one area where there seems to be a disconnect.

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I guess this is coming a little bit back to the symptom testimony.

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But the ALJ's opinion seems to largely summarize these things, and there's not a lot

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of evaluative work done in the opinion, at least on my reading of it.

[00:15:56] Speaker 04:
So what are we to do with, for example, the pain piece, which seems to be her primary complaint?

[00:16:04] Speaker 00:
Well, I turn to this court's Ninth Circuit standard as well as the regulations.

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The ALJ cited to both objective evidence, and the ALJ also cited to improvement with treatment.

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And those are both clear and convincing, as well as substantial evidence to support the ALJ's

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rejection of her pain testimony to the extent that she alleged more severe limitations than what the LJ found in the RFC, which was very limiting.

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The LJ limited her to a reduced range of sedentary work.

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Sedentary work is the least exertional standard for the agency.

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This is more limiting than two doctors found.

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So as was noted previously, the LJ found her more limited than two doctors, one who reviewed the record, one who examined her found.

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But the ALJ did discuss evidence that was inconsistent or that he found inconsistent with her more extreme testimony.

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She testified that she was essentially non-functional, bedridden 80% of the time.

[00:17:02] Speaker 00:
But the ALJ cited two treatment notes showing that she improved with medications, her psoriatic arthritis improved with medications, and that her low back pain, similarly, she had minimal symptoms with a back brace.

[00:17:14] Speaker 04:
Do we have to, in terms of the ALJ's evaluation of the treatments there, what is said about efficacy or whether those treatments are conservative?

[00:17:24] Speaker 04:
There's a history here of quite aggressive interventions.

[00:17:28] Speaker 00:
The ALJ specifically said on CAR 19 and I believe on CAR 20 as well that treatment notes showed that she improved with Humira and MTX.

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That's a psoriatic arthritis.

[00:17:38] Speaker 00:
The ALJ also listed, I believe it might have been on CAR 18 as well.

[00:17:42] Speaker 00:
So the ALJ listed the treatments that she had with psoriatic arthritis.

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The ALJ discussed a treatment note that was CAR 940 that discussed how she improved with Humira and MTX.

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And I'd also note that this court looks to the record as a whole, and it is permissible for the commissioner to cite additional evidence to support that finding.

[00:18:03] Speaker 00:
So in briefing, we also discussed treatment note, I believe this was on 586, showing that she's did wonderful with cosine ticks, that she felt dramatically better with that medication.

[00:18:15] Speaker 00:
She did stop that medication during the surgery, and immediately after, if you look to

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Car, hold on a second, Car 989.

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In September of 2018, she was back on that medication.

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And with regard to her low back, the LJ also discussed that she had minimal symptoms, her reports that she had minimal symptoms while using a back brace.

[00:18:41] Speaker 00:
And in briefing, we also noted other records that show that her pain improved following her back surgery.

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She discussed how her radicular symptoms were no longer constant, how she had improved functional mobility, for example.

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That's in CAR 902.

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She discussed improved pain.

[00:19:02] Speaker 00:
So there are also other records supporting the ALJ's findings.

[00:19:07] Speaker 00:
And finally, the ALJ discussed objective evidence that similarly would be consistent with improved functioning.

[00:19:14] Speaker 00:
P.A.

[00:19:14] Speaker 00:
Neal's exam, as discussed earlier, which showed largely unremarkable findings.

[00:19:18] Speaker 00:
And as noted earlier, P.A.

[00:19:20] Speaker 00:
Neal, who assessed her, found that she could perform a restricted range of light work.

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The ALJ reviewed the record as a whole and found her more limited.

[00:19:29] Speaker 00:
But those examination findings would similarly serve as substantial evidence supporting the LJ's findings.

[00:19:35] Speaker 00:
And finally, the LJ cited other normal examination findings as well.

[00:19:40] Speaker 00:
Examination showing normal gait, a normal neck exam, normal balance.

[00:19:48] Speaker 00:
And all of those findings would be substantial evidence supporting the LJ's decision.

[00:19:57] Speaker 00:
If there are no further questions.

[00:19:58] Speaker 02:
All right, thank you.

[00:20:00] Speaker 02:
Thanks to both counsel for your argument.

[00:20:02] Speaker 02:
The case just argued is submitted.