[00:00:00] Speaker 02:
And we'll move on to argument in Mackey versus O'Malley, case number 23-3620.

[00:00:11] Speaker 02:
Hello.

[00:00:23] Speaker 01:
Good morning, Your Honors.

[00:00:25] Speaker 01:
I am Chad Halfield, representing Kimberly Mackey.

[00:00:28] Speaker 01:
in her appeal of her social security disability denial.

[00:00:32] Speaker 01:
Ms.

[00:00:32] Speaker 01:
Mackey originally filed this claim April 14th, 2011, nearly 14 years ago.

[00:00:38] Speaker 01:
For this case, she's had four hearings, three federal district court remands, and now they'll current the case on appeal is currently before you.

[00:00:49] Speaker 01:
Throughout this time period and this process, there have been two conversations taking place in this record regarding two different worlds.

[00:00:58] Speaker 01:
One conversation regards the vocational world.

[00:01:01] Speaker 01:
Is Ms.

[00:01:01] Speaker 01:
Mackey able to show up five days a week at an appointed time and be productive and persist for what she should expect compensation in a competitive work environment?

[00:01:13] Speaker 01:
Another conversation is happening is whether she's able to progress through her treatment plans, whether she's able to leave her house how often without full-blown panic attacks or vomiting, and whether she's able to sit through her counseling sessions

[00:01:26] Speaker 01:
one-on-one with the trained mental health provider, many of which she's known for years, without crying and shaking uncontrollably.

[00:01:33] Speaker 01:
The ALJ points out to instances where she's able to leave the house a little bit more, she's able to make it through her appointments, show some progress with her treatment plan, and says, these two conversations don't match up.

[00:01:45] Speaker 01:
This is not finding inconsistencies.

[00:01:48] Speaker 01:
This is ignoring context.

[00:01:51] Speaker 01:
This issue was already decided in the previous district court decision,

[00:01:56] Speaker 01:
saying it was improper error of law to take rare instances of improvement, which were expected in the course of mental health treatment.

[00:02:03] Speaker 02:
So can I ask you about that?

[00:02:04] Speaker 02:
Because I mean, one of the unusual things about this case, is it the fourth?

[00:02:10] Speaker 02:
I mean, there were three remands or four remands?

[00:02:12] Speaker 02:
I guess there were four remands to three different ALJs.

[00:02:16] Speaker 02:
That was all by the same district court judge, or was it a different?

[00:02:20] Speaker 02:
Different district court judges.

[00:02:23] Speaker 02:
But to what degree does that weigh in here?

[00:02:27] Speaker 02:
Because all those remands suggest that the district court, you know, I say that, I guess, plural, at least the different judges were given a hard look at this, kept sending it back, and then they were satisfied.

[00:02:42] Speaker 02:
I mean, I know that there's no technical standard here.

[00:02:45] Speaker 02:
We're not giving deference.

[00:02:47] Speaker 02:
to the district court in the same way that we might in other cases.

[00:02:52] Speaker 02:
But doesn't that sort of suggest that fifth time is the charm?

[00:02:57] Speaker 02:
And the arguments that were made before aren't as relevant here, because the ALJ is presumed to have learned from its experience.

[00:03:10] Speaker 01:
Well, Your Honor, there's two things.

[00:03:12] Speaker 01:
One, 10 years ago, this court addressed this issue in Gerson v. Colvin.

[00:03:17] Speaker 01:
And in that specific, this case, the facts, everything really near that case.

[00:03:21] Speaker 01:
We talked about picking out isolated instances in the context of a mental health case.

[00:03:26] Speaker 03:
But this is a different question, and I'm interested in- Yes, and I'll get to that.

[00:03:30] Speaker 01:
And he said, to remand a case is not to give the ALJ a mulligan, to let him try again, to try to discredit the claimant and to try to, again, reject these medical opinions.

[00:03:42] Speaker 01:
That would create an unfair system of heads we play, heads we win, tails we play again until there's finally a judge who sees the case a little bit differently and does it.

[00:03:50] Speaker 01:
We'll see the same arguments that were rejected by this court before of rare instances.

[00:03:55] Speaker 01:
All of a sudden now they're saying, okay, a couple more years, a couple hundred pages more of treatment records.

[00:04:00] Speaker 01:
There's a few more instances.

[00:04:02] Speaker 01:
of leaving the house, improvement in treatment.

[00:04:05] Speaker 01:
Yet there's also a few more instances of medical opinions from treating and examining sources that cannot maintain competitive employment.

[00:04:13] Speaker 01:
For example, in the first U.S.

[00:04:15] Speaker 01:
District Court case, they said, oh, she went on a trip, a vacation once, in this time period.

[00:04:20] Speaker 01:
The court said that's not a sufficient basis.

[00:04:23] Speaker 01:
This court, the judge this time says, well, in 2020, she went accompanied, visited her sister in Michigan.

[00:04:29] Speaker 01:
So now there's two trips, nine years apart,

[00:04:32] Speaker 01:
Does that change the overall principle of why it was rejected based on rare instances of being able to have improvement in activities?

[00:04:42] Speaker 01:
In the case of looking at years, a longitudinal picture, it doesn't.

[00:04:46] Speaker 01:
So you have 15 medical opinions.

[00:04:50] Speaker 01:
Well, you have 15 medical sources, six treating physician statements, six examining source statements, three reviewing statements.

[00:04:58] Speaker 01:
Dr. Colby did two examining statements.

[00:05:00] Speaker 01:
There's actually more opinions than that.

[00:05:02] Speaker 01:
who all consistently found this, what causes that house to fall?

[00:05:08] Speaker 01:
It can't be more of the same errors, the more of the reason why the district court said this is error.

[00:05:14] Speaker 01:
I mean, that's the law of the case doctrine.

[00:05:16] Speaker 01:
You can't just keep arguing the same issue over and over until eventually someone gives you a different result.

[00:05:21] Speaker 01:
It just leads to judicial efficiency and it's just not like they said, Gerson, it's an unfair judicial process.

[00:05:28] Speaker 02:
I hear you to some degree, but I just want to be clear.

[00:05:31] Speaker 02:
I mean, it doesn't seem like law of the case is the issue because we're reviewing, I mean, Social Security, as you know, are odd because the district court takes a look at it, but then we review it all de novo.

[00:05:41] Speaker 02:
We don't give any deference to the district court.

[00:05:46] Speaker 02:
And so it doesn't seem to me that there is law of the case for us in this case.

[00:05:51] Speaker 02:
We've never remanded it unless I missed something.

[00:05:55] Speaker 02:
I mean, none of those, yeah, this is the first time it's come up to us, right?

[00:05:59] Speaker 01:
Well, it's the ALJ's decision that's being reviewed for the first time.

[00:06:04] Speaker 01:
The ALJ is the commissioner, and the federal district court said it was heir for the commissioner to find these heirs.

[00:06:09] Speaker 01:
So this particular ALJ's decision, a lot of the case, I mean, he's arguing the same issues that were made before.

[00:06:15] Speaker 01:
Well, he's arguing the ALJ.

[00:06:16] Speaker 01:
So it's a failure to follow the order of the court in that way.

[00:06:20] Speaker 03:
I mean, you didn't as such make a law of the case or a law of mandate argument.

[00:06:27] Speaker 03:
I've had a recent case in which those arguments were made as such.

[00:06:30] Speaker 03:
You don't, as such, make those arguments.

[00:06:31] Speaker 03:
Is that right?

[00:06:34] Speaker 03:
The arguments were framed, and they think- If you did make them, what specific directions from the earlier remands weren't followed, or were there any that weren't followed?

[00:06:48] Speaker 01:
All right.

[00:06:49] Speaker 01:
So specifically, cannot reject the claimants such as complaints of plain due to waxing and waning and isolating specific instances of improvement, followed with other instances of declining.

[00:06:59] Speaker 03:
So that was- Are there factual determinations that were made?

[00:07:05] Speaker 03:
Were there earlier, any of the earlier stages, were there factual conclusions that were rejected and that were then revived in the later ALJ opinion?

[00:07:17] Speaker 01:
Yes, for example, symptom exaggeration was raised prior to LJ.

[00:07:22] Speaker 01:
The U.S.

[00:07:22] Speaker 01:
District Court said, hey, there was, one provider said, possibly an exaggeration, but then did standard objective tests that strongly suggest it was not.

[00:07:32] Speaker 01:
And the U.S.

[00:07:33] Speaker 01:
District Court said, there's not evidence of symptom exaggeration here.

[00:07:38] Speaker 01:
This second ALJ wanted to review now, I shouldn't say second, but this ALJ reviewed now, dedicated a page and a half of his decision to symptom exaggeration again.

[00:07:48] Speaker 01:
Same thing with the treating source statements.

[00:07:51] Speaker 01:
Dr. Nelson must review the notes.

[00:07:54] Speaker 01:
It's not enough to say it's inconsistent with the longitudinal picture by picking out a few instances of improvement when she's recycling.

[00:08:01] Speaker 01:
That was the basis of the denial.

[00:08:04] Speaker 01:
Again, the ALJ, I mean, throughout the whole opinion, the ALJ's basis for denial is I can find some times where she's telling her provider that her treatment's going well.

[00:08:16] Speaker 01:
And if I could, I mean,

[00:08:18] Speaker 01:
There is the, it's just, it's just really important to look through some of these things cited by the ALJ.

[00:08:23] Speaker 01:
July, 2011, this was car 325.

[00:08:26] Speaker 01:
While Ms.

[00:08:27] Speaker 01:
Mackey reported some improvement in functioning, she noticed she was still very anxious and had difficulty getting out of the house before 2 p.m.

[00:08:37] Speaker 01:
April, 2013, car 687.

[00:08:39] Speaker 01:
Ms.

[00:08:40] Speaker 01:
Mackey was more stable than previous appointments, but appeared moderately anxious.

[00:08:45] Speaker 01:
January 15, CAR 75.

[00:08:46] Speaker 01:
Though she reported she was doing well, she was very anxious about her upcoming social security hearing.

[00:08:51] Speaker 01:
When asked about the way she managed her anxiety, she stated, I tried to manage it, but I am not doing well.

[00:08:59] Speaker 03:
And why is that?

[00:09:00] Speaker 01:
Those are the ones that actually ALJ stated where she was improving.

[00:09:03] Speaker 01:
It shows the discrepancy between improving and treatment and actual functioning.

[00:09:08] Speaker 01:
When we also look at these statements, he said she was doing one August of 2013, CAR 1446.

[00:09:14] Speaker 01:
distress, cognitively impaired, problems with word retrieval, poor sleep and having nightmares, blunted affect and anxious mood.

[00:09:21] Speaker 01:
There's not even a month in between saying she's doing well with her treatment goals and having difficulty.

[00:09:28] Speaker 01:
Now the judge also has over a year period of a gap of seeing this improvement.

[00:09:32] Speaker 01:
And so this is a transit concern.

[00:09:34] Speaker 01:
She's going through child protective services.

[00:09:37] Speaker 01:
She voluntarily gave her daughter to her sister while she gets her life in order.

[00:09:42] Speaker 01:
But you'll see she had concerns of family relations throughout this entire record.

[00:09:45] Speaker 01:
What was different this time is that she had to go to a parenting college.

[00:09:50] Speaker 02:
Counsel.

[00:09:50] Speaker 02:
Sorry.

[00:09:51] Speaker 02:
You were on a roll.

[00:09:52] Speaker 02:
But I just want to be clear.

[00:09:54] Speaker 02:
Every argument you're making now is regarding the medical opinions, right?

[00:10:00] Speaker 02:
Because you have a separate argument that the ALJ improperly discounted portions of her testimony.

[00:10:09] Speaker 02:
But everything you're going to now is to the medical opinions.

[00:10:11] Speaker 02:
Is that right?

[00:10:12] Speaker 01:
Not necessarily, Your Honor.

[00:10:14] Speaker 01:
It's the same argument the judge makes is that her subjective complaints or the opinions that she cannot maintain attendance is inconsistent with statements she makes or her provider state that she's doing well in her treatment notes.

[00:10:29] Speaker 01:
It's the same thing about the two worlds of what Garrison and Colvin specifically addressed when they said you have to be cautious about over relying on doing well.

[00:10:42] Speaker 01:
in quotations in a medical record, because doing well in treatment goals may not necessarily have any impact on vocational functioning, which is exactly what we're seeing here, both subjective complaints and the medical opinions.

[00:10:55] Speaker 03:
Can you just summarize for me?

[00:10:57] Speaker 03:
Because that would be helpful.

[00:11:01] Speaker 03:
She has, as I understand it, a slew of medical providers who said that she was

[00:11:08] Speaker 03:
seriously impaired in some way, right?

[00:11:13] Speaker 03:
Correct.

[00:11:13] Speaker 03:
What is the medical evidence that supports that the ALJ pointed to the contrary?

[00:11:20] Speaker 03:
I mean, you went through in your brief everything that supported her, but what about the ones that the ALJ regards as demonstrating that she was not in fact impaired?

[00:11:31] Speaker 03:
I mean, he debunks in various ways all of the ones that said she was impaired or seriously impaired or impaired in

[00:11:37] Speaker 03:
specific ways.

[00:11:38] Speaker 03:
And then what's left in the record of medical evidence?

[00:11:44] Speaker 01:
Yes, thank you.

[00:11:45] Speaker 01:
Well, that's what I was trying to articulate those same treatment notes that I was reading from.

[00:11:49] Speaker 01:
Those are the ones the judge was citing to saying she was doing better.

[00:11:52] Speaker 01:
You say the records show she's doing better, the best she's ever performed.

[00:11:56] Speaker 03:
And he therefore doesn't credit the opinions of the medical providers who said that she couldn't work continuously and so on.

[00:12:08] Speaker 03:
So then does he also have, are there also people, medical people in the record who said she could work, sanitary or low or light work or whatever, are there such, who are those people?

[00:12:26] Speaker 01:
So he gave partial weight to one examining source of social security, which other examining sources of social security appointed providers said she could not work.

[00:12:37] Speaker 01:
And he mostly, his weight as a whole opinion is based upon the DDS initial reviews of the record.

[00:12:42] Speaker 03:
Which is important because those providers were not- So this is what I've never understood.

[00:12:46] Speaker 03:
What were they reviewing?

[00:12:47] Speaker 03:
They were reviewing the same doctors who in fact said that she had these serious impairments?

[00:12:58] Speaker 03:
Is that what they were reviewing?

[00:12:59] Speaker 01:
No, Your Honor.

[00:12:59] Speaker 01:
And that's the conflict.

[00:13:02] Speaker 01:
They did not review the majority of all these disabling opinions.

[00:13:05] Speaker 01:
There's two conversations in this file.

[00:13:07] Speaker 01:
They only give them the one file.

[00:13:08] Speaker 01:
They don't let the provider actually weigh in of how she's doing vocationally and given that.

[00:13:14] Speaker 01:
ADDS providers did get to review Dr. Mansfield Blair, her CE, where she said she would have difficulty with maintaining attendance, difficulty with this.

[00:13:24] Speaker 01:
With ALJ said, well, that's not a specific limitation, difficulty, what does that mean?

[00:13:28] Speaker 01:
And without looking to the context of the other providers who said, hey, she missed four more days of work per month.

[00:13:34] Speaker 01:
I mean, some providers said she'd be off task 50% of the time.

[00:13:37] Speaker 01:
Other providers said she'd only be off task 26% to 50% of the time.

[00:13:41] Speaker 01:
Ms.

[00:13:41] Speaker 01:
Mackey herself said she'd isolate 50% of the time in her home.

[00:13:45] Speaker 01:
Other times, she said, I only have to hear about it.

[00:13:49] Speaker 03:
The people who stated, I didn't testify, I guess, but they stated in writing that she

[00:13:58] Speaker 03:
could do sedentary or light work or whatever, were all, none of them were examining doctors, is that right?

[00:14:09] Speaker 03:
Even exactly.

[00:14:10] Speaker 03:
That's correct.

[00:14:10] Speaker 03:
There were only people who did review.

[00:14:13] Speaker 01:
Right.

[00:14:14] Speaker 03:
And what they reviewed was all of these people, doctors or non-doctors, physical therapists, whatever, who said, whose conclusion was that she

[00:14:28] Speaker 03:
couldn't do this work.

[00:14:31] Speaker 01:
No, they didn't have those opinions to review.

[00:14:33] Speaker 01:
They didn't have the dozen of... So what were they reviewing?

[00:14:36] Speaker 03:
That's what I'm trying to understand.

[00:14:37] Speaker 03:
What were they reviewing?

[00:14:39] Speaker 01:
They were given some notes, treatment notes.

[00:14:41] Speaker 03:
Of what?

[00:14:42] Speaker 03:
By whom?

[00:14:44] Speaker 01:
It has treatment notes in the file.

[00:14:47] Speaker 01:
They make findings of various, some mental health treatment notes.

[00:14:50] Speaker 01:
They have some well-checked notes, primary care providers.

[00:14:53] Speaker 03:
Again, the problem is that the same providers whose treatment notes they were reviewing, when asked for their opinion as to what work she could do,

[00:15:10] Speaker 03:
that she could do, she wouldn't have attendance or whatever.

[00:15:14] Speaker 03:
Is that it?

[00:15:15] Speaker 03:
I mean, I don't understand what they were reviewing.

[00:15:17] Speaker 03:
That's what I'm having problems with.

[00:15:19] Speaker 01:
Yes.

[00:15:20] Speaker 01:
Well, they're reviewing how she would function in a workplace.

[00:15:23] Speaker 01:
I mean, there's no doubt.

[00:15:25] Speaker 03:
The DHS doctors who did the reviewing, they were reviewing the medical records of the same doctors or medical providers who later, I guess, gave opinions to the contrary.

[00:15:41] Speaker 03:
Is that it?

[00:15:43] Speaker 01:
That's it.

[00:15:44] Speaker 01:
They're giving a set.

[00:15:45] Speaker 01:
I mean, there's many records they did not review, but they were given a set of records from a certain time period during that time period.

[00:15:52] Speaker 01:
Like, for example, the later DDS providers, they just reviewed it.

[00:15:57] Speaker 01:
There was a subsequent claim file after this case was in federal district court.

[00:16:00] Speaker 01:
So they reviewed the new period.

[00:16:02] Speaker 01:
One of the providers says, hey, this case is already denied.

[00:16:05] Speaker 01:
I'm evoking Chavez.

[00:16:06] Speaker 01:
I'm not looking at it, which is not right because it was under review.

[00:16:09] Speaker 01:
But still, they just said, we're just going to keep the same thing.

[00:16:12] Speaker 01:
Other ones looked at the records just from that earlier period, from a set point of time from when she applied.

[00:16:16] Speaker 01:
until when they make their decision at six months, eight months or whatever that, you know, depending on initial reach consideration they make.

[00:16:22] Speaker 01:
They don't have any of the treatment records after that until the hearing.

[00:16:25] Speaker 01:
They don't have any of the medical opinion records of what the doctors actually feel, how she would function in the workplace or under the stress of work to review.

[00:16:33] Speaker 01:
So they're given the records to review from a certain set of period, but not the, I mean, of course nothing after that, the medical source opinions.

[00:16:44] Speaker 02:
Okay, we'll give you some time for rebuttal, but your time's up, so thank you.

[00:16:49] Speaker 01:
All right, thank you.

[00:17:03] Speaker 00:
Good morning your honors Elizabeth fear on behalf of Carolyn Colvin the acting commissioner of Social Security I do agree with Mike my opponent that this is a record of contrasts but the contrasts are between the very extreme allegations that the claimant is making such as that she shakes uncontrollably whenever she's encounters strangers she to the point of passing out and

[00:17:28] Speaker 00:
that she has physical pain to the point where it feels like her bones are breaking or she's screaming out in pain.

[00:17:35] Speaker 00:
And at the same time, you have this very consistent record showing that she has been able to deal with many

[00:17:45] Speaker 00:
complicated situations throughout the period at issue.

[00:17:48] Speaker 00:
She loses custody of her daughter.

[00:17:51] Speaker 00:
The alleged onset date is 2009.

[00:17:54] Speaker 00:
In 2013, in April specifically, she loses custody of her daughter because of her drinking.

[00:18:02] Speaker 00:
And all the records up to that point, including some from Dr. Nelson, show that she's been drinking up to this point.

[00:18:08] Speaker 00:
She stops drinking in April 2013 after finally going into a treatment facility.

[00:18:13] Speaker 00:
And the records after that show that, yes, this woman has limitations.

[00:18:20] Speaker 00:
She definitely has anxiety when she's going out, but the things that she's doing, taking care of her household, taking care of her child, budgeting things, planning and going on vacations, going out to events such as a wedding or a concert, and yes, it's true these are not

[00:18:36] Speaker 00:
like daily activities.

[00:18:39] Speaker 00:
But as this last ALJ points out, they are in extreme contrast to the kinds of things she's saying limit her ability to work.

[00:18:48] Speaker 00:
And yes, this record is kind of

[00:18:52] Speaker 00:
I guess extreme in a way that this is the fourth ALJ decision.

[00:18:55] Speaker 00:
There were three district courts who looked at it, three different district judges, I believe they were all magistrates, and three different ALJs.

[00:19:04] Speaker 00:
The last one was not, I don't think.

[00:19:09] Speaker 00:
looked at the case twice.

[00:19:11] Speaker 00:
Then there was a second ALJ and a third ALJ.

[00:19:13] Speaker 00:
And I would just like to walk you through the history.

[00:19:17] Speaker 00:
The first ALJ decision is in 2012.

[00:19:20] Speaker 00:
And the agency itself decided that it wasn't defensible and agreed to remand in a stipulation because the ALJ had not properly addressed the first set of state agency doctors.

[00:19:33] Speaker 00:
And that was Martin and me.

[00:19:34] Speaker 00:
And those doctors

[00:19:37] Speaker 00:
Realized the claimant was still drinking and some of their findings seemed to be a contingent on her stopping that so the agency thought we need to look at this again and Then we also wanted the ALJ to reevaluate the severity of her impairments at step two and then Contingent on what happens in those steps you agreed to a voluntary?

[00:19:56] Speaker 00:
Yes

[00:19:57] Speaker 00:
And so that goes back.

[00:20:00] Speaker 00:
The second ALJ decision is a little more detailed, but it's the same ALJ.

[00:20:05] Speaker 00:
That time, the district court

[00:20:08] Speaker 00:
didn't make any findings regarding the ALJ's analysis of the subjective symptoms, and really didn't address the ALJ's treatment of Dr. Nelson's opinion, which is what is kind of at issue here.

[00:20:23] Speaker 00:
Nelson and probably, I'm sorry.

[00:20:27] Speaker 00:
Colby?

[00:20:28] Speaker 00:
Colby, yes, thank you.

[00:20:29] Speaker 00:
I was blanking on the name.

[00:20:30] Speaker 00:
And again, the subjective symptom analyses.

[00:20:32] Speaker 00:
But that second district court remanded

[00:20:35] Speaker 00:
by finding that the first, the second ALJ decision didn't comply with the remand order.

[00:20:41] Speaker 00:
And Sue Espante decided that that was based on- Did this one comply with the remand order?

[00:20:46] Speaker 03:
I'm sorry?

[00:20:47] Speaker 03:
Did this one comply with the remand order?

[00:20:49] Speaker 03:
Yes.

[00:20:50] Speaker 03:
What about with her guardian?

[00:20:52] Speaker 03:
Dr. Colby, for example, didn't he basically say the same thing about Dr. Colby that had been said previously?

[00:21:00] Speaker 03:
The reason why it's for the remand?

[00:21:03] Speaker 00:
This ALJ's decision, because now we're talking about the third, and I didn't get to the third in my sort of outline.

[00:21:08] Speaker 00:
Why don't you finish what you were doing?

[00:21:09] Speaker 00:
Okay, so the third ALJ actually notes that the court that remanded on its own didn't actually address the merits of Dr. Nelson's opinion, but sort of found that it was in error because of these treatment notes from a different person who's Ms.

[00:21:28] Speaker 00:
May.

[00:21:29] Speaker 00:
And then had Sue Esponte decided that the ALJ didn't deal with Martin and me,

[00:21:34] Speaker 00:
Properly and that's off the table now.

[00:21:37] Speaker 00:
So the third ALJ who Issued a much more comprehensive decision than the other ALJ and it does you're right Your honor contains a lot of similarities to this one, but it's also much more fleshed out there's in there's information that third ALJ decision was 2018

[00:21:58] Speaker 00:
so there's a lot of evidence in this record after that it was october 2018 so is there for example more different evidence from dr colby than there was before no because dr colby didn't really treat the claimant um he just looked at her during those washington um state state of washington um

[00:22:17] Speaker 00:
examination findings, and you asked a question at the end of my opponent's testimony about what kind of evidence those doctors look at, and if you look at page 1581, that is Dr. Colby, he says that he looked at his own prior findings, and I believe there's another one from either.

[00:22:37] Speaker 03:
Dr. Colby was an examining psychologist.

[00:22:40] Speaker 00:
Yes, for the state, not a treating.

[00:22:43] Speaker 00:
All right, but he was looking.

[00:22:44] Speaker 03:
He did meet her.

[00:22:46] Speaker 00:
Yes.

[00:22:46] Speaker 00:
And I will point out, as this ALJ goes into considerable detail pointing out, and the last one did too, how Clement presented to Dr. Colby in a way that she didn't present to anyone else in this record.

[00:22:59] Speaker 00:
And that is that she talked about being attacked by ghosts in her home and having physical manifestations of this.

[00:23:09] Speaker 03:
There's so many layers here.

[00:23:12] Speaker 03:
The last district court opinion before this one say about Dr. Colby.

[00:23:17] Speaker 00:
That the ALJ properly addressed Dr. Colby.

[00:23:20] Speaker 03:
So the third one, not the one that we're reviewing, but the one before that said that the ALJ properly addressed Dr. Colby?

[00:23:29] Speaker 00:
That is a good question.

[00:23:31] Speaker 00:
I don't have a specific answer for that.

[00:23:35] Speaker 00:
I do know that that

[00:23:37] Speaker 00:
That court remanded because of Dr. Nelson.

[00:23:41] Speaker 00:
Oh, yes, Dr. Nelson and Dr. Colby.

[00:23:43] Speaker 00:
I do have that.

[00:23:43] Speaker 00:
The third.

[00:23:44] Speaker 00:
Yes.

[00:23:44] Speaker 02:
The third remand was because of both of those.

[00:23:46] Speaker 00:
Yes.

[00:23:47] Speaker 00:
And it was.

[00:23:47] Speaker 03:
So if the next ALJ says the same thing, the third one said, and we're back to the same, even though the district court had said that it wasn't persuasive the way it was, then why don't we have to do it again?

[00:24:03] Speaker 00:
Well, I think that the fourth ALJ decision is actually more fleshed out than the third regarding Dr. Colby.

[00:24:10] Speaker 03:
And I- That's what I was asking.

[00:24:12] Speaker 00:
Yes.

[00:24:12] Speaker 03:
Vagampe saying this was pretty much the same.

[00:24:14] Speaker 03:
Sorry about that.

[00:24:14] Speaker 03:
That's why I started that.

[00:24:15] Speaker 00:
Yes.

[00:24:16] Speaker 00:
It's all wrote.

[00:24:16] Speaker 00:
So the last time this court was remanded from the district court, which was in April 2020, I believe, that that court said to reconsider Dr. Nelson, and within the context of Ms.

[00:24:29] Speaker 00:
May's treatment records, reconsider Martin and me, who are no longer part of the issues here, and then Dr. Colby.

[00:24:39] Speaker 00:
And then that the ALJ might want to reconsider some other medical sources in light of those two major reevaluations.

[00:24:47] Speaker 00:
And then also reevaluate the claimant's subjective allegations.

[00:24:51] Speaker 00:
So back to Dr. Colby.

[00:24:52] Speaker 00:
The claimant presents there with a very different presentation than she did anywhere else.

[00:24:58] Speaker 00:
And I will admit that there are a couple points in the record.

[00:25:02] Speaker 00:
I know in page 82, she talks about ghosts here and there.

[00:25:07] Speaker 00:
The way she's talking to Dr. Colby is consistent with a psychosis.

[00:25:12] Speaker 00:
And you can see that in Dr. Colby's report.

[00:25:14] Speaker 00:
He believes that this woman is psychotic.

[00:25:16] Speaker 00:
And that's why he assesses these very significant limitations.

[00:25:21] Speaker 00:
The record does not bear that out.

[00:25:23] Speaker 00:
And the ALJ appropriately states that this is a very unusual presentation.

[00:25:29] Speaker 00:
And I would like to point the court's attention to Dr. Thorpe, who did examine claimant also.

[00:25:35] Speaker 02:
that contrasts with Dr. Colby's testimony.

[00:25:38] Speaker 00:
Yes, and Dr. Thorpe literally says the claimant is somewhat cagey in her presentation, and that's on page 928 in the record, and this is in April 2013.

[00:25:48] Speaker 00:
The second ALJ decision on pages 499 to pages 500

[00:25:55] Speaker 00:
addresses some of claimant's behavior during the hearing that immediately preceded that case, which is consistent with what Dr. Thorpe says, that claimant's not always presenting herself the same way.

[00:26:06] Speaker 00:
That said, all of the ALJs agreed that this claimant is limited.

[00:26:10] Speaker 00:
They all assessed residual functional capacities that account for mental limitations.

[00:26:16] Speaker 00:
The first one didn't have any physical limitations.

[00:26:19] Speaker 00:
The second one found claimant could perform medium work.

[00:26:22] Speaker 00:
The third one found light.

[00:26:24] Speaker 00:
This one found sedentary.

[00:26:25] Speaker 00:
So you can see that these ALJs are looking at the record as it is being upgraded, and they're coming to reasonable conclusions, which is what the final district court judge found.

[00:26:38] Speaker 00:
The ALJ's rejection of Dr. Nelson's findings stand that it's inconsistent with the record, that Dr. Nelson doesn't appear to understand social security rules.

[00:26:51] Speaker 00:
And that's evident in the way he talks about episodes of decompensation, which are not evident in the record.

[00:26:57] Speaker 00:
The ALJ talks about that.

[00:26:59] Speaker 00:
The ALJ talks about how Dr. Nelson's opinion is inconsistent with claimant's abilities.

[00:27:10] Speaker 00:
Yeah, and he doesn't really explain why she's as limited as he says.

[00:27:15] Speaker 00:
So all of that is still supported by the record.

[00:27:19] Speaker 00:
It's all supported by the regulatory process, and it's supported by this court's holdings.

[00:27:25] Speaker 00:
And regarding claimants, I would also like to point out there is the third remand doesn't actually talk about

[00:27:38] Speaker 00:
It seems to agree that the ALJ's rejection of Dr. Nelson's finding as being unsupported by the objective evidence is a valid reason.

[00:27:52] Speaker 00:
And I might have got the district court order wrong, but it's at pages 246 and 47 in the record.

[00:27:59] Speaker 02:
So can you summarize why the

[00:28:07] Speaker 02:
the third remand happened or the, uh, the, I guess it's the third.

[00:28:14] Speaker 02:
There were three remands or four.

[00:28:15] Speaker 02:
There were four remands.

[00:28:16] Speaker 00:
There were three remands, four decisions.

[00:28:19] Speaker 02:
Okay.

[00:28:20] Speaker 02:
So the, the, the last one prior to, uh, prior to this one, what were the bases for the district court to, to send it back?

[00:28:31] Speaker 00:
OK, I think that's the one you're talking about was before the district court upheld, right?

[00:28:36] Speaker 00:
Yeah, exactly.

[00:28:37] Speaker 02:
The last one that was remanded.

[00:28:38] Speaker 00:
Yeah, and that one was?

[00:28:40] Speaker 02:
And that was based on Nelson?

[00:28:41] Speaker 00:
Yes, Nelson and Colby.

[00:28:43] Speaker 00:
And Colby.

[00:28:44] Speaker 00:
And also sort of to reevaluate the claimant's subjective allegations as well.

[00:28:50] Speaker 00:
So this 28-page ALJ decision is very detailed.

[00:28:57] Speaker 00:
You can't say that this ALJ is shying away from any of this claimant's allegations.

[00:29:02] Speaker 00:
Yes, she does show up to certain treatment functions with anxiety or shaking and whatnot, but she's still able to accomplish all of these things, not only on a daily basis, budgeting her household, taking care of her daughter, going out in public when she says she'll faint when she's around anybody who she doesn't know,

[00:29:21] Speaker 00:
All of these things are contrasted by what this record continually shows she's able to do.

[00:29:26] Speaker 00:
That's all still supported.

[00:29:28] Speaker 00:
And the remands in the past, like the only one that really, I think, holds any water, honestly, from the district court's own actions is that one right before the district court upheld.

[00:29:40] Speaker 00:
And that one wanted the ALJ to again address Drs.

[00:29:42] Speaker 00:
Nelson and Colby, and he did.

[00:29:45] Speaker 00:
And again, as Judge Nelson pointed out in the very beginning, we have four ALJs and three district court jurists who looked at this and agreed that this claimant's not disabled.

[00:29:58] Speaker 02:
If at any point in that time a judge had decided to... Well, hold on, hold on, because I'm not sure that that's true.

[00:30:08] Speaker 02:
I mean, it's true as to the ALJs, but as to the district courts, there's only one, because the other is all remanded.

[00:30:14] Speaker 00:
I was going to add to that, that at any point, one of those judges could have said, enough is enough.

[00:30:20] Speaker 00:
This claim is disabled agency.

[00:30:21] Speaker 00:
You're getting it wrong.

[00:30:22] Speaker 03:
So we could say enough is enough.

[00:30:24] Speaker 00:
Yes.

[00:30:24] Speaker 00:
Yes, you could.

[00:30:25] Speaker 00:
But my point is that no one did.

[00:30:27] Speaker 00:
And the first two district court orders, one was stipulated.

[00:30:32] Speaker 00:
That's completely reasonable.

[00:30:34] Speaker 00:
The second one was kind of suesponte and didn't really go to the merits of the ALJ's discussion of Dr. Nelson.

[00:30:41] Speaker 00:
her subjective allegations.

[00:30:43] Speaker 00:
The third one finds a problem with Dr. Nelson, finally, but it's based on these treatment records from Ms.

[00:30:50] Speaker 00:
May, who is the person who, as we've noted, she treated Clement at Compass, and that's where all of those reports come from, that she's doing exemplary, she's

[00:31:00] Speaker 00:
doing a really good job with her treatment.

[00:31:03] Speaker 00:
She's learning things.

[00:31:04] Speaker 00:
All of that is in this ALJ's decision.

[00:31:08] Speaker 00:
And all of it still shows that even though there's a lot of time that's passed here, even though there are several medical sources who kind of piggybacked on each other and didn't really look at this whole record, no one did except this ALJ and came to the conclusion that this claimant is limited but not disabled.

[00:31:27] Speaker 00:
And I think your honors could uphold that decision.

[00:31:29] Speaker 00:
at this point.

[00:31:31] Speaker 00:
Okay.

[00:31:32] Speaker 00:
Thank you.

[00:31:32] Speaker 01:
Thank you.

[00:31:38] Speaker 01:
Thank you, Your Honor.

[00:31:39] Speaker 01:
So, in conclusion, so obviously- Two minutes.

[00:31:43] Speaker 02:
Sorry.

[00:31:43] Speaker 02:
Yeah, I need to tell, yeah, that we're giving you two minutes for rebuttal.

[00:31:50] Speaker 01:
Thank you.

[00:31:51] Speaker 01:
This current ALJ does not mention alcohol as a basis of the decision.

[00:31:55] Speaker 01:
This is not an issue.

[00:31:57] Speaker 01:
It can't be regarded in this case.

[00:31:59] Speaker 01:
Dr. Colby, a different presentation that was specifically addressed in detail by the last FTC decision, said that was an error.

[00:32:09] Speaker 01:
She reluctantly said that, denied it only upon pressing and then wished she hadn't said it as she was in the middle of dealing with a CPS battle.

[00:32:17] Speaker 01:
So that was specifically addressed.

[00:32:18] Speaker 01:
There are no new facts to present that the second ALJ just ignored the order of the court, repeated the same erroneous reasoning.

[00:32:25] Speaker 01:
Dr. Nelson, Dr. May, specifically the last Federal Court decision, finding error, specifically said that Dr. Nelson's records were supported by his notes and Ms.

[00:32:36] Speaker 01:
May, that there were times she's doing better, times she's doing worse.

[00:32:39] Speaker 01:
The ALJ failed to note that.

[00:32:41] Speaker 01:
I've gone through, look at a briefing, page 26 to 27, the opening.

[00:32:44] Speaker 01:
Every month, the judge says doing better.

[00:32:46] Speaker 01:
There's another month right after, right before, she's doing much worse.

[00:32:51] Speaker 01:
They bring up the thing that she does well, she'll be able to manage her budget, go to some meetings.

[00:32:55] Speaker 01:
During that time period, CAR 823, she talks about it.

[00:32:59] Speaker 01:
March 2014, tearful and trembling, disgust, pattern of anxiety, she throws up, brushing her teeth when it has to go to appointment before noon.

[00:33:08] Speaker 01:
So there are different opinions in this record, different ways of looking at this.

[00:33:12] Speaker 01:
She says, the claim herself, some days she says she isolates 50% of the days.

[00:33:16] Speaker 01:
Other times she says she only has severe anxiety one to two days per month, depends on how often she leaves.

[00:33:22] Speaker 01:
They say 26% off task.

[00:33:24] Speaker 01:
I'm going to say 50% off task.

[00:33:26] Speaker 01:
Every one of these is disabling.

[00:33:28] Speaker 01:
The ALJ's RFC does not contain anything regarding missing work, having to show up late for vomiting, trying to use coping skills.

[00:33:35] Speaker 01:
There's none of that.

[00:33:37] Speaker 01:
The ALJ seems to say, hey, at some time she's way past what the vocational expert said would be disabling.

[00:33:42] Speaker 01:
And other times she's just barely past what would cause her to get fired in the competitive workforce.

[00:33:49] Speaker 01:
Everything points to it.

[00:33:50] Speaker 01:
It's never been just by the judge's air of fee.

[00:33:53] Speaker 01:
It's the exact same finding.

[00:33:54] Speaker 01:
It's the same thing as Colvin.

[00:33:55] Speaker 01:
As we win, tails we play again.

[00:33:58] Speaker 01:
We'll finally get our result.

[00:33:59] Speaker 01:
And Ms.

[00:34:00] Speaker 01:
Mackey, who was forced to pay, I mean, paid her security taxes as mandated by everyone has been waiting 14 years with the same errors being perpetuated through time.

[00:34:10] Speaker 01:
Thank you.

[00:34:11] Speaker 02:
Thank you.

[00:34:11] Speaker 02:
Thank you to both counsel for your arguments in the case.

[00:34:13] Speaker 02:
The case is now submitted.