[00:00:03] Speaker 01:
Good morning, Your Honors.

[00:00:04] Speaker 01:
Harvey P. Sackett for John Hudnall.

[00:00:07] Speaker 01:
I expect to reserve two minutes for rebuttal.

[00:00:11] Speaker 01:
May it please the Court.

[00:00:13] Speaker 01:
The ALJ improperly failed to comply with agency policy and Ninth Circuit case law when she found that Hudnall's symptoms were inconsistent with the lack of treatment.

[00:00:27] Speaker 01:
Social Security ruling 16-3P

[00:00:31] Speaker 01:
states that there may be reasons for a person does not receive treatment, particularly when they suffer from a mental impairment.

[00:00:39] Speaker 01:
Hudnall did not receive treatment for a period of time, and the record explains why he did not do so.

[00:00:45] Speaker 01:
First, he said he did not want others to know about his business, quote unquote.

[00:00:50] Speaker 01:
He said that when he was in group therapy, he did not find it helpful.

[00:00:55] Speaker 01:
Insofar as taking prescribed medications, he was concerned about their side effects

[00:01:01] Speaker 01:
And finally, he told his therapist that he did not find one-on-one treatment to be helpful.

[00:01:08] Speaker 01:
As such, he provided reasons why he did not receive treatment.

[00:01:12] Speaker 01:
In addition, Ninth Circuit case law states, as noted in our briefs from Nguyen, that if a person does not seek mental health treatment, that in and of itself should not be viewed critically.

[00:01:28] Speaker 01:
Let's, however, assume that the panel concludes

[00:01:31] Speaker 01:
that the gap in treatment is outcome determinative.

[00:01:36] Speaker 01:
Handel does not concede this.

[00:01:38] Speaker 01:
However, there is a period of time where he does meet the 12-month duration of requirement.

[00:01:44] Speaker 01:
When he returned to treatment in May of 2020, he continued to receive treatment for at least 12 months.

[00:01:51] Speaker 01:
And the standard for disability is to show that the impairment has lasted

[00:01:56] Speaker 01:
or is expected to last for 12 months.

[00:01:59] Speaker 01:
At a minimum, the case requires remand to determine whether or not he met that 12-month duration requirement and was, in fact, disabled for the period from May 2020 to the present.

[00:02:12] Speaker 02:
What's your response to I think it's the class is the one he started seeing in 2020, correct?

[00:02:18] Speaker 02:
And didn't she call him a pathological liar?

[00:02:21] Speaker 01:
She did, Your Honor.

[00:02:21] Speaker 02:
So what are we to do with that?

[00:02:26] Speaker 01:
He was deemed to be a pathological liar for one reason only.

[00:02:31] Speaker 01:
He lied to his family that he was going to work for three years when he was, in fact, not.

[00:02:36] Speaker 01:
However, his therapist said that this was a manifestation of his underlying illness.

[00:02:43] Speaker 01:
He did not lie to curry favor with anyone.

[00:02:46] Speaker 01:
He did not lie to enhance his disability.

[00:02:51] Speaker 01:
The clinicians said that this was a form of self-preservation.

[00:02:57] Speaker 02:
Couldn't the inference also be that he started attending these sessions in May 2020 in order to get the disability, to paper over the fact that he lacked treatment for those five years?

[00:03:12] Speaker 01:
No, Your Honor, and this is the reason why.

[00:03:13] Speaker 01:
He went back into therapy because he realized that his condition had gotten worse.

[00:03:20] Speaker 01:
He had told his wife that he had not been working.

[00:03:23] Speaker 01:
And he made the decision that he really did need help.

[00:03:26] Speaker 02:
But when did he apply for disability?

[00:03:28] Speaker 01:
He applied for disability in 2020.

[00:03:31] Speaker 02:
What month?

[00:03:33] Speaker 01:
I don't know that offhand, Your Honor.

[00:03:36] Speaker 04:
The gap in treatment doesn't just go to whether he actually had the symptoms, but also to the reliability of the doctor, doesn't it?

[00:03:44] Speaker 04:
Because when the doctor says he's had this condition for a long time, but the doctor hasn't seen him in years, doesn't that undermine the doctor's credibility?

[00:03:51] Speaker 04:
Not necessarily, Your Honor.

[00:03:52] Speaker 04:
This is the reason why.

[00:03:55] Speaker 01:
The diagnosis of a severe impairment, a specifically major depressive disorder, that was the diagnosis made in 2015.

[00:04:03] Speaker 01:
They made the same diagnosis in 2020.

[00:04:11] Speaker 01:
So there was really no change.

[00:04:13] Speaker 01:
The diagnosis was present at day one, and it was present five years later.

[00:04:20] Speaker 01:
We don't know what went on in the interim other than the fact that, again, the claimant didn't seek treatment.

[00:04:27] Speaker 04:
So some of the argument is that his condition prevented him from being able to concentrate.

[00:04:32] Speaker 04:
But the ALJ actually said, well, I can tell from the proceeding that you were able to sustain concentration for this period of time that you actually can concentrate.

[00:04:40] Speaker 04:
What is your response to that?

[00:04:42] Speaker 01:
Several things, Your Honor.

[00:04:44] Speaker 01:
Number one, this is an example of the proverbial sit and squirm test.

[00:04:48] Speaker 01:
The ALJ did not see the claim.

[00:04:51] Speaker 01:
This was done via telephone.

[00:04:53] Speaker 01:
But we don't know from the record how much the claimant had to pause.

[00:04:57] Speaker 01:
And even if he did partake in a 40-minute hearing, a 40-minute hearing obviously is not the same thing as sustaining work eight hours a day, five days a week.

[00:05:07] Speaker 01:
It was a short period of time.

[00:05:09] Speaker 01:
So I don't see how the two swear with one another.

[00:05:15] Speaker 02:
Can I ask, you have to concede that the new regulations overrule our past precedent regarding non-medical evidence, correct?

[00:05:25] Speaker 01:
That's correct, Your Honor.

[00:05:26] Speaker 02:
OK.

[00:05:28] Speaker 02:
And then could you go to the RFC level two issue?

[00:05:32] Speaker 01:
Can you describe that and why that was an error?

[00:05:37] Speaker 01:
It was a non-issue, Your Honor, because the ALJ, despite questioning the lack of treatment, despite

[00:05:43] Speaker 01:
questioning his activities of daily living, despite questioning the presence of some normal medical status exams, still came to the conclusion that he suffered from a major depressive disorder, which was, in fact, severe.

[00:05:58] Speaker 01:
And then the ALJ proceeded to go through step three.

[00:06:03] Speaker 01:
She concluded that his impairment did not meet the listing under paragraph 12.

[00:06:08] Speaker 01:
She went to step four and concluded he could not return to his former work.

[00:06:12] Speaker 01:
And then she went to step five.

[00:06:14] Speaker 00:
That's where a question arises in my mind.

[00:06:16] Speaker 00:
The ALJ found that your client could perform short, simple, repetitive tasks.

[00:06:27] Speaker 00:
And I'm trying to figure out how that matches up or doesn't match up with level two reasoning, which

[00:06:34] Speaker 00:
in which a person has to carry out detailed but uninvolved instructions.

[00:06:42] Speaker 00:
And so I'm trying to figure out how the description of his capability meets up with the description of the instructions.

[00:06:54] Speaker 01:
It doesn't meet up, Your Honor, for the following reasons.

[00:06:57] Speaker 01:
The ALJ said he could perform short tasks, simple tasks, repetitive tasks.

[00:07:03] Speaker 01:
But the key here is that she also said that he could not perform tasks which are detailed.

[00:07:09] Speaker 01:
By definition, reasoning level two states that... Well, that's not exactly accurate.

[00:07:14] Speaker 02:
The ALJ said he can perform tasks that are complex and detailed.

[00:07:21] Speaker 01:
That's not my understanding, Your Honor.

[00:07:22] Speaker 00:
I think there was an and.

[00:07:24] Speaker 00:
There is an and there, so my question is slightly to the side of that.

[00:07:29] Speaker 00:
If a person has to carry out detailed but uninvolved instructions, is the task that results necessarily short and simple and repetitive?

[00:07:42] Speaker 01:
No, Your Honor.

[00:07:44] Speaker 00:
That's because I read the detailed and complex together, but the actual capability was short, simple, and repetitive.

[00:07:56] Speaker 01:
And she said, not detailed.

[00:07:59] Speaker 01:
So my apologies.

[00:08:01] Speaker 01:
Yeah, in terms of the definition relative to her finding.

[00:08:05] Speaker 01:
Right.

[00:08:05] Speaker 02:
So I mean, if she said he could perform complex and detailed tasks, why doesn't that fit precisely within level two, which requires, I forget the exact language, but detailed but uninvolved, detailed but with uninvolved instructions?

[00:08:21] Speaker 02:
That seems precisely what

[00:08:25] Speaker 00:
complex and detailed but not complex means it's my understanding that she said he could not perform detailed details detailed and complex tests but something that it requires you to carry out detailed but uninvolved instructions might not be repetitive and it might not be short correct and that that's that's the issue that I'm and it's not about and if that were the case your honor then the commissioner could not meet his burden at step five

[00:08:54] Speaker 01:
because the requirements are greater than the residual functional capacity and the definition of R2 and her underlying finding at step five insofar as is RFC.

[00:09:06] Speaker 01:
I'm out of time.

[00:09:06] Speaker 01:
I'm going to reserve my last minute.

[00:09:09] Speaker 04:
Thank you, counsel.

[00:09:09] Speaker 01:
Thank you.

[00:09:30] Speaker 03:
Good morning, Your Honors.

[00:09:31] Speaker 03:
I just want to check that you can hear me.

[00:09:33] Speaker 03:
Thank you.

[00:09:34] Speaker 03:
My name is Shay Bond, and I represent the Commissioner of Social Security in this matter.

[00:09:38] Speaker 03:
I just wanted to address Judge Bumate's question about when the application was filed.

[00:09:43] Speaker 03:
It was March of 2020, which is when the claimant actually returned to receive or sought out treatment.

[00:09:49] Speaker 03:
This was also around the time that he was also seeking a letter that he could leave the country because of the coronavirus and wanted to move to Japan with his wife.

[00:09:58] Speaker 03:
Before that, there was this very lengthy gap in time for treatment.

[00:10:02] Speaker 03:
Really, the only other time he went in to seek treatment was when he had a laceration on his hand, and I think he had a colonoscopy.

[00:10:10] Speaker 03:
And then he also, in 2016, had sought an excuse to get out of a deposition that appeared to be related to some of the financial shenanigans that had occurred at his job, which he was fired from because of that activity.

[00:10:25] Speaker 03:
The record in this case really has very little support for the extent of the limitations that the claimant alleged.

[00:10:32] Speaker 03:
The gap in treatment is one such factor, but we also had the mental status examination findings that the ALJ cited.

[00:10:40] Speaker 03:
Back in 2015 when the claimant was seeking the treatment, he had the hospitalization, but then dramatically improved.

[00:10:46] Speaker 03:
And then when he returned for treatment in 2020, those mental status examination findings were rather benign given the

[00:10:53] Speaker 03:
again, the allegations that the claimant had alleged.

[00:10:56] Speaker 03:
And there was a question about, well, what is also the relevance of the ALJ's observations at the hearing?

[00:11:02] Speaker 03:
We argue they are relevant.

[00:11:04] Speaker 03:
This isn't a sit and squirm test.

[00:11:07] Speaker 03:
The claimant had alleged that he could only concentrate for up to 15 minutes, like that was his max.

[00:11:12] Speaker 03:
But the hearing lasted for over 40 minutes, and he was testifying from Japan at two in the morning.

[00:11:17] Speaker 03:
So the fact that he was able to, as ALJ said, answer these questions

[00:11:21] Speaker 03:
cogently and competently, for that significant period of time, directly address one of the allegations that claimant had made, saying that he could not work.

[00:11:29] Speaker 03:
So that was also a relevant observation.

[00:11:34] Speaker 03:
We also have the allegation that, again, he can't socialize or go outside.

[00:11:43] Speaker 03:
And this daily activity showed that he did go outside.

[00:11:47] Speaker 03:
leave his house where he said he was in complete isolation.

[00:11:50] Speaker 03:
That was also inconsistent with the findings during the mental status examinations that he could interact appropriately with staff when he was going in for his treatment.

[00:12:02] Speaker 03:
So the ALJ definitely addressed a variety of reasons based on the record for finding the claimant statements not fully supported.

[00:12:13] Speaker 04:
Could you address the level two reasoning issue?

[00:12:16] Speaker 03:
Of course.

[00:12:17] Speaker 03:
So I think it's now been made clear that the ALJ's RFC finding was no complex and detailed task.

[00:12:23] Speaker 03:
So it's not just the detail.

[00:12:25] Speaker 00:
But that's only the negative half.

[00:12:27] Speaker 00:
He said that he is capable of performing tasks that are short, simple, and repetitive.

[00:12:34] Speaker 00:
Right.

[00:12:35] Speaker 00:
You can either look at the negative what he can't do or what he can do and so I'm My question is about what he can do short simple and repetitive and so I just have a hard time squaring that with the level two reasoning So with level two reasoning it says apply common spit pardon me apply common sense understanding to carry out detailed, but uninvolved

[00:12:58] Speaker 03:
of tasks or instructions.

[00:13:00] Speaker 03:
So I would say that, although you're talking about in a negative, the fact that the restriction is only no complex and detailed tasks.

[00:13:07] Speaker 03:
So he can do those uninvolved tasks.

[00:13:09] Speaker 00:
But he can do is short, simple, and repetitive.

[00:13:12] Speaker 00:
So if you carry out detailed but uninvolved instructions, is that necessarily resulting in a task that is short?

[00:13:21] Speaker 00:
It may result in a task that's simple, but it may not result in short or repetitive.

[00:13:26] Speaker 03:
But I see nothing in the definition of reasoning level two that would, if someone was limited as the claimant that he can't do these, this reasoning level two.

[00:13:35] Speaker 03:
There's nothing in that description that would say that he can't do those jobs.

[00:13:39] Speaker 03:
And this is why we had a rotation.

[00:13:39] Speaker 03:
Well, how do we know?

[00:13:40] Speaker 04:
It sounds like Judge Graver and I have slightly different concerns about this issue.

[00:13:43] Speaker 04:
I was wondering how simple comports with detailed.

[00:13:47] Speaker 04:
I mean, if something is detailed, which it sounds like level two allows, I'm not sure that that is simple.

[00:13:55] Speaker 03:
Well, I don't see that as being an obvious conflict.

[00:14:00] Speaker 03:
And if we're talking about what does an ALJ need to resolve, it would be an obvious or apparent conflict.

[00:14:07] Speaker 03:
So I don't see an obvious and apparent conflict when this is the only restriction that the claimant had was against detailed and complex tasks.

[00:14:16] Speaker 03:
But reasoning level 2 doesn't require that type of.

[00:14:18] Speaker 04:
Well, it's a little odd, because the ALJ says it two ways.

[00:14:21] Speaker 04:
There's the negative.

[00:14:22] Speaker 04:
He can't do these things.

[00:14:23] Speaker 04:
When the ALJ says he can do these things, it seems to me that the list of what he can do, they don't overlap.

[00:14:29] Speaker 04:
There's space in between them.

[00:14:31] Speaker 04:
And what he can do is a smaller set of things, it sounds like.

[00:14:34] Speaker 03:
Well, that's why we had a vocational expert testify.

[00:14:38] Speaker 03:
And so the vocational expert was identifying these jobs, did not see any reason to say that they had explained it further.

[00:14:45] Speaker 03:
So again, if we're talking about an obvious or apparent conflict, which is the type of conflict we would need for an ALJ to resolve this,

[00:14:53] Speaker 03:
I just don't see it in the definition.

[00:14:55] Speaker 03:
I don't see there being a conflict, an obvious one, about the ability to do these kind of simple repetitive tasks in this definition of reasoning level.

[00:15:05] Speaker 04:
Given that there were these two articulations that don't seem exactly consistent, how do we know that the expert used the right half?

[00:15:14] Speaker 03:
Well, because the expert heard the hypothetical question.

[00:15:19] Speaker 03:
I mean, that's why the vocational expert was there.

[00:15:22] Speaker 03:
was to hear, this is the limitation.

[00:15:24] Speaker 03:
Are there jobs that this person can perform?

[00:15:28] Speaker 03:
So I don't see there's not a disconnect, say, between the hypothetical and the RFC that was matched.

[00:15:34] Speaker 03:
So we have a vocational expert getting an accurate understanding of this claimant's limitations and saying, here are the jobs that are available to this person.

[00:15:41] Speaker 03:
No one expressed any concern about that RFC formulation and the ability to do these jobs.

[00:15:49] Speaker 04:
Is there a reason to think that these jobs are

[00:15:52] Speaker 04:
easier than the average level two jobs.

[00:15:55] Speaker 04:
I mean, is that what you're saying that somehow level two has a range and these are the bottom of the range or something?

[00:16:01] Speaker 03:
Well, I'm saying that there's no indication that any of these particular jobs that the vocational expert identified, the VE felt that fit with the limitations that were presented.

[00:16:13] Speaker 03:
So I don't, you know, and I'm looking at the definition of reasoning level two now, and I just, these are still unskilled jobs, and we have a vocational expert that said there was no problem with the claimant doing that, that there was no confusion on the vocational expert's understanding of the RFC as being, you know, two different sets of limitations or conflicting limitations.

[00:16:37] Speaker 03:
Like there was just, the vocational expert didn't express any concern, didn't ask a follow-up question,

[00:16:43] Speaker 03:
the representative at the hearing didn't say, wait a second, I have confusion here about whether the claimant could perform these jobs with this particular RFC formulation.

[00:16:51] Speaker 03:
So there's just, I don't see any evidence that there is an actual conflict here, or apparent.

[00:16:56] Speaker 02:
What were the actual jobs that Level 2 encompassed, according to the expert here?

[00:17:02] Speaker 03:
I'm sorry, could you repeat that?

[00:17:03] Speaker 02:
Which jobs were encompassed by Level 2?

[00:17:05] Speaker 02:
I think it's assembler, packer, court, office court, paster.

[00:17:11] Speaker 03:
All of those jobs would have been cracked.

[00:17:15] Speaker 02:
And those jobs, do they have long tasks?

[00:17:19] Speaker 02:
Do any of those jobs require long, detailed tasks?

[00:17:24] Speaker 03:
In what respect?

[00:17:27] Speaker 02:
Well, I mean, the LJ said that he could only do short, repetitive tasks.

[00:17:30] Speaker 02:
Do you know that any of these specific jobs that were listed by the vocational officer have long tasks?

[00:17:37] Speaker 03:
Well, if they had, I don't think the vocational expert would have identified them.

[00:17:42] Speaker 03:
Right?

[00:17:43] Speaker 03:
I mean, that's what we're getting to is that, again, we have a vocational expert who understood the question that was presented with both the restriction against complex and detailed tasks and then the capacity for the simple repetitive ones.

[00:17:56] Speaker 03:
And so we have a vocation.

[00:17:57] Speaker 04:
So looking at the descriptions of the four jobs, I mean, if his abilities require that the tasks be repetitive, looking at the definitions of them in the Dictionary of Occupational Titles, I think only two of them say repetitive.

[00:18:11] Speaker 04:
The other two don't.

[00:18:12] Speaker 03:
Well, I don't know if the actual, if you're talking about the capsule description of what's going on with those jobs, I don't think you actually need to see the word repetitive in that description for the vocational expert who has the expertise to understand how these jobs are done to say that they can be done with a restriction to repetitive tasks.

[00:18:33] Speaker 02:
Am I understanding your argument correctly that we don't look to the dictionary definitions or even the level two definition because we could rely just solely on the vocational expert's testimony because the vocational expert understood all the limitations and then offered these?

[00:18:49] Speaker 03:
Yeah, here.

[00:18:50] Speaker 03:
And again, we're talking about was there an obvious or an apparent conflict at the hearing that would have triggered the ALJ to ask a follow-up question or to resolve any conflict.

[00:19:00] Speaker 03:
And we don't have that here, particularly when we have a qualified vocational expert who, again, heard the questioning, expressed no concern that there was some sort of conflict between these two parts of the RFC, and said, here are the jobs the person can perform.

[00:19:16] Speaker 02:
Did Hunnell raise the conflict?

[00:19:18] Speaker 03:
I don't remember them raising any kind of conflict at the hearing.

[00:19:21] Speaker 03:
I don't believe there's any questioning or follow-up on that.

[00:19:26] Speaker 03:
If there are no further questions, we would ask that you affirm the ALJ's decision.

[00:19:32] Speaker 03:
Thank you.

[00:19:46] Speaker 01:
One critical point I'd like to address is Judge Wilmote's last question.

[00:19:51] Speaker 01:
We don't leave it up simply to the VE.

[00:19:54] Speaker 01:
In rounds, the court said that we have to look to the reasoning levels.

[00:19:59] Speaker 01:
So we don't just defer to the VE.

[00:20:00] Speaker 04:
Was there an objection, though?

[00:20:02] Speaker 04:
Did you argue that the vocational expert had given an improper opinion?

[00:20:07] Speaker 01:
I did, Your Honor.

[00:20:09] Speaker 01:
And this is spoken to at length.

[00:20:10] Speaker 01:
The ALJ went through all my objections in her decision.

[00:20:14] Speaker 01:
At the end of the day, she rejected them.

[00:20:17] Speaker 00:
You raised them at the district court as well.

[00:20:20] Speaker 01:
Yes, Your Honor, I did.

[00:20:22] Speaker 02:
I guess what's the problem here?

[00:20:24] Speaker 02:
I mean, the review is substantial evidence.

[00:20:26] Speaker 02:
If the vocational expert said that he can perform these after listening to all the evidence, how's that not substantial evidence?

[00:20:33] Speaker 01:
Because those jobs, again, we're getting back to the R2 question.

[00:20:37] Speaker 01:
Those jobs don't comport with the requirements under R2.

[00:20:41] Speaker 01:
And R2 was not discussed at all during the hearing.

[00:20:45] Speaker 01:
The ALJ simply said what she said in terms of the limitation, but it was never spelled out.

[00:20:52] Speaker 01:
There was no dialogue about what R2 really means.

[00:20:55] Speaker 01:
And as such, if I'm hearing the panel correctly, forgive me for being presumptuous, there are too many unknowns about the vocational findings.

[00:21:04] Speaker 01:
I think because of the step five question alone, the case requires reversal and remand.

[00:21:09] Speaker 01:
Thank you.

[00:21:12] Speaker 04:
Thank you both sides for the helpful arguments.

[00:21:14] Speaker 04:
This case is submitted.