[00:00:04] Speaker 03:
Good morning.

[00:00:06] Speaker 00:
Good morning, Your Honors.

[00:00:07] Speaker 00:
May it please the court.

[00:00:09] Speaker 00:
Jamila Macabong on behalf of Petitioner Michael Trogdon.

[00:00:12] Speaker 00:
I would like to reserve two minutes for rebuttal, please.

[00:00:15] Speaker 03:
I'm sorry.

[00:00:16] Speaker 03:
How much time?

[00:00:17] Speaker 00:
Two minutes.

[00:00:17] Speaker 00:
All right.

[00:00:17] Speaker 03:
Could you raise the microphone?

[00:00:18] Speaker 03:
Thank you.

[00:00:20] Speaker 03:
I know.

[00:00:20] Speaker 03:
We go from very tall to very short.

[00:00:22] Speaker 03:
So it's helpful, because when we record it, we can't get it otherwise.

[00:00:27] Speaker 03:
Thank you.

[00:00:28] Speaker 00:
Your Honors, as we laid out in our briefs, the ALJ committed multiple errors here in this case, both legal and factual, in denying Mr. Trogdon's application for disability benefits.

[00:00:39] Speaker 00:
I won't spend my time here today repeating all of those arguments, but would like to just focus on a couple of key issues that we think warrant reversal here.

[00:00:48] Speaker 00:
First is the ALJ's application of the incorrect legal standard.

[00:00:52] Speaker 00:
When determining that the medical opinions conflicted with certain findings in the record,

[00:00:58] Speaker 00:
And the commissioner has failed to respond to those points, and specifically the ALJ reason that the doctor's opinions conflicted with Mr. Trogdon's inability to drive or his otherwise attempts to lead a normal life.

[00:01:12] Speaker 00:
And those just aren't legitimate reasons to discount that testimony.

[00:01:15] Speaker 03:
Well, didn't the ALJ, wasn't it that, well, he was driving three to four times a week, I think, was the testimony.

[00:01:21] Speaker 03:
And the finding was that that would be inconsistent.

[00:01:25] Speaker 03:
Wouldn't that be inconsistent with having seizures?

[00:01:28] Speaker 00:
Well, not quite so, Your Honor.

[00:01:31] Speaker 00:
Well, I hope he wasn't driving with seizures.

[00:01:34] Speaker 03:
That's, you know, that we're hoping for that.

[00:01:37] Speaker 00:
No, and in fact, he wasn't.

[00:01:39] Speaker 00:
In fact, he testified that if he ever felt a seizure coming on, he would need to take breaks, he would need to stop driving at that point.

[00:01:47] Speaker 00:
And that's one of the key reasons why just the mere fact of driving alone isn't necessarily indicative

[00:01:53] Speaker 00:
of a claimant's disability status.

[00:01:57] Speaker 00:
This court has held time and time again that claimants can attempt to lead normal lives by participating in daily activities such as driving a car or taking a walk or doing routine chores around the household, but that doesn't necessarily mean that they could function properly in the workplace.

[00:02:15] Speaker 00:
And that was one of the key reasons that the ALJ discounted much of the testimony here, pointing to Mr. Trogdon's ability to drive,

[00:02:22] Speaker 00:
also pointing to alleged improvements with his treatment, and that too falls short of the standard that the ALJ should have applied in this case.

[00:02:34] Speaker 02:
Don't most of your arguments ask us to just interpret the facts differently than the administrative law judge?

[00:02:41] Speaker 00:
No, Your Honor.

[00:02:42] Speaker 00:
We're asking the court to actually look at the reasons or look at the ALJ's analysis, which was incorrect.

[00:02:49] Speaker 00:
The ALJ actually did not engage in the appropriate analysis here.

[00:02:53] Speaker 00:
In looking at that alone, the court can remand based on the ALJ's inappropriate findings without engaging in an entirely new analysis of the facts.

[00:03:02] Speaker 02:
Well, let's take Mr. Trogdon's wife as an example.

[00:03:07] Speaker 02:
You say that she testified to things differently or to different abilities than Mr. Trogdon.

[00:03:14] Speaker 02:
But if we disagree with you and find that actually she testified to the same basic things as Mr. Trogdon, then there would be no harm.

[00:03:22] Speaker 02:
Even if there were error, any error would be harmless, correct?

[00:03:28] Speaker 02:
Because the same reasons that the ALJ used to discount Mr. Trogdon would then also apply equally to Mr. Trogdon's wife.

[00:03:37] Speaker 00:
Assuming that the court agreed that their testimony was similar, we would submit that there were some key differences in the testimony.

[00:03:44] Speaker 00:
But even so, the mere fact that there are just some overlapping or similarities wouldn't necessarily be a germane reason in and of itself.

[00:03:54] Speaker 00:
to discount that testimony, the ALJ was still required.

[00:03:57] Speaker 03:
Well, I think, didn't the ALJ say regarding the wife that, okay, she said that her testimony largely mirrors Trojan's allegations and then moved on.

[00:04:12] Speaker 03:
So what more should the ALJ have done than saying, OK, you're saying the same thing as your husband, and then discuss this later why the husband's testimony was

[00:04:28] Speaker 03:
why it may not be consistent with some of the medical evidence or whatever.

[00:04:34] Speaker 03:
What more did he have to say?

[00:04:35] Speaker 00:
Well, the ALJ, that actually doesn't actually engage with Ms.

[00:04:41] Speaker 00:
Trogdon's testimony, which was markedly different than Mr. Trogdon.

[00:04:46] Speaker 00:
certain observations that Mr. Trogdon, or that only someone who's observing Mr. Trogdon closely would be able to witness, including seeing him miss, forget to take his medications on repeated times, him having, falling out or not being able to pay attention for extended periods of times.

[00:05:06] Speaker 00:
That's unique testimony that someone only in a position of observing the claimant would be able to identify, and the ALJ did not consider that unique perspective that Ms.

[00:05:17] Speaker 00:
Trogdon had.

[00:05:20] Speaker 03:
So let me ask you this.

[00:05:21] Speaker 03:
I think regarding your argument about SSR 83-12, where did you raise that argument before the administrative agency or the district court?

[00:05:32] Speaker 03:
I wasn't able to find that.

[00:05:33] Speaker 03:
Can you point me on the record where you preserved that issue?

[00:05:40] Speaker 00:
Yes, Your Honor.

[00:05:41] Speaker 00:
Mr. Trogdon.

[00:05:47] Speaker 00:
Just get the exact site for you.

[00:05:50] Speaker 03:
Well, if you don't have it at your fingertips, maybe when you're waiting to come back up on rebuttal, you could give me a specific record site.

[00:05:58] Speaker 00:
Yes, Your Honor.

[00:05:59] Speaker 00:
So Mr. Trogdon actually challenged the vocational expert testimony directly before the appeals council.

[00:06:11] Speaker 00:
And we'll get the exact site for you.

[00:06:14] Speaker 00:
But I think the key issue there is the commissioner argues that

[00:06:19] Speaker 00:
Mr. Trogdon needed to raise that at the hearing itself.

[00:06:23] Speaker 00:
But that's just incorrect standard under the law.

[00:06:26] Speaker 00:
Mr. Trogdon had to raise the issue at some point during the proceedings.

[00:06:31] Speaker 00:
And actually, I have the site here, CAR 159.

[00:06:33] Speaker 00:
Mr. Trogdon actually

[00:06:39] Speaker 00:
objective to the ALJ's findings in the medical evidence and that would be sufficient enough to encompass the VE testimony as well, the vocational expert testimony as well.

[00:06:48] Speaker 02:
You stated that the ALJ didn't provide germane reasons to discount the testimony of Mr. Trogdon's wife, but don't the Ninth Circuit decisions thus far say that the new regulations eliminated that requirement?

[00:07:02] Speaker 02:
I agree they're unpublished, but if you read the tea leaves, it looks like that's the understanding.

[00:07:09] Speaker 00:
Well, Your Honor, there is a considerable amount of discord on that point, but we would submit that the standard has not changed because there hasn't been any published decision that has come out changing that rule.

[00:07:22] Speaker 00:
So as it is today, the AOJ still needed to apply, you know, the Jermaine Reason standard as we indicated in our briefs.

[00:07:31] Speaker 00:
I see that I'm also coming up on two minutes.

[00:07:34] Speaker 03:
Would you like to reserve the balance of your time?

[00:07:36] Speaker 00:
Yes, I would like to reserve the balance.

[00:07:38] Speaker 00:
All right.

[00:07:38] Speaker 03:
Let me make sure my colleagues don't have any additional questions right now.

[00:07:41] Speaker 03:
No, thank you.

[00:07:42] Speaker 03:
We don't.

[00:07:42] Speaker 03:
So you can reserve the balance.

[00:07:44] Speaker 03:
Thank you.

[00:07:53] Speaker 03:
Good morning.

[00:07:55] Speaker 04:
Good morning.

[00:07:55] Speaker 04:
Katherine Watson for the commissioner.

[00:07:59] Speaker 04:
Here's substantial evidence supports the ALJ's finding that Trogdon was not disabled.

[00:08:06] Speaker 04:
We discussed that the ALJ reasonably discounted Trogdon's subjective complaints.

[00:08:12] Speaker 04:
The ALJ found.

[00:08:13] Speaker 03:
So I guess it's, I mean, obviously he has a lot of problems, which is not uncommon with many people.

[00:08:19] Speaker 03:
Are we really looking at this more just going through the steps and seeing how the ALJ evaluated each of those?

[00:08:28] Speaker 03:
I think Judge Koh made a comment.

[00:08:32] Speaker 03:
Maybe we would have decided it differently.

[00:08:37] Speaker 03:
But the ALJ had reasons, or what's your position?

[00:08:40] Speaker 04:
That is the correct standard.

[00:08:42] Speaker 04:
That's correct.

[00:08:42] Speaker 04:
So essentially, substantial evidence means more than a mere scintilla of evidence.

[00:08:47] Speaker 04:
And looking at the ALJ's findings, that standard was met here.

[00:08:51] Speaker 04:
Turning to seizures, for example, the ALJ found that the seizures improved with treatment.

[00:08:57] Speaker 04:
And there is ample evidence supporting that.

[00:08:59] Speaker 04:
In fact, on the alleged onset date he had a seizure, he then took medications.

[00:09:04] Speaker 04:
He had no seizures at all for one year.

[00:09:06] Speaker 04:
He subsequently took the medication VIMPAT.

[00:09:10] Speaker 04:
Treatment notes during the relevant period indicate that his seizures markedly improved with VIMPAT.

[00:09:16] Speaker 04:
In March 2015, he indicated that he had

[00:09:20] Speaker 04:
that his last seizure was two to three months ago.

[00:09:22] Speaker 04:
He had a seizure in March 2015, but after that he had no seizures at all, major or minor, through the date last insured, and indeed for some years after the date last insured.

[00:09:33] Speaker 03:
So I know it's driving three to four times a week and consistent with having severe seizures.

[00:09:39] Speaker 04:
Yes, and under this court's case law, it's an unpublished case, but Cross v. O'Malley, the unpublished decision, which was issued early this year, specifically dealt with the claimant with seizures.

[00:09:52] Speaker 04:
And it upheld the LJ's reasons for discounting the claimant's subjective complaints.

[00:09:57] Speaker 04:
One of those reasons was his ability to drive in spite of the fact that he had seizures.

[00:10:02] Speaker 04:
I note here that he did testify that he usually was able to take precautions, but he also indicated that he wasn't always able to take precautions.

[00:10:11] Speaker 04:
And his treating physician, Dr. Harner, similarly indicated in her opinion that he was not always able to take precautions when he had seizures.

[00:10:19] Speaker 04:
The fact that both the treating physician as well as Trogdon indicated to the agency that he was still able to drive was sufficient to discount his testimony.

[00:10:28] Speaker 02:
Is the agency's position that if you're able to drive, you can't be disabled?

[00:10:32] Speaker 02:
That's not your position, is it?

[00:10:34] Speaker 04:
No.

[00:10:34] Speaker 04:
That is not the agency's position.

[00:10:36] Speaker 04:
But here we're looking at the context of seizures specifically.

[00:10:39] Speaker 04:
So yes, there are cases where if a claimant is alleging pain, for example, the mere fact that he's able to drive would not be sufficient.

[00:10:47] Speaker 04:
But we also have cases such as Cross View O'Malley.

[00:10:50] Speaker 04:
where the claimant is alleging seizures.

[00:10:53] Speaker 04:
And the LJ did find it notable that he nevertheless testified that he was still driving a few times a week.

[00:10:59] Speaker 02:
But he also had an accident.

[00:11:00] Speaker 02:
He was also hospitalized.

[00:11:02] Speaker 04:
He had an accident early in the relevant period, that is correct.

[00:11:06] Speaker 04:
I believe he was only hospitalized once for generalized tonic-clonic seizures, but generally speaking, he did not have debilitating seizures for a year or longer through the insured period, the day last insured.

[00:11:20] Speaker 03:
Did he ever distance himself and say, I shouldn't have been driving because of my seizures?

[00:11:27] Speaker 04:
I believe there were points in the record where he did indicate he wasn't driving, so there's some conflicting evidence there.

[00:11:33] Speaker 04:
But the ALJ relied on his testimony to the agency, on his statements to the agency, both in his function report as well as at the hearing, where he did indicate that he was driving.

[00:11:43] Speaker 02:
Could you answer counsel's point that there's no published opinion that says that Germain reasons requirement for discounting late witness testimony?

[00:11:54] Speaker 02:
no longer applies based on the new regulation?

[00:11:57] Speaker 04:
Yeah, so in our federal registrar, we do indicate with the new regulations that the ALJs are no longer required to evaluate lay witness testimony in every case.

[00:12:09] Speaker 04:
In two unpublished decisions, this court has acknowledged that standard.

[00:12:13] Speaker 04:
So the most recent is in Kennedy v. O'Malley.

[00:12:16] Speaker 04:
That is similarly an unpublished decision.

[00:12:18] Speaker 04:
But this court in that case did indicate that under the revised regulations, ALJs are no longer required to discuss their findings regarding the lay witness testimony.

[00:12:29] Speaker 04:
That being said, as this court has noted, the ALJ did discuss and consider those findings.

[00:12:33] Speaker 04:
The ALJ specifically discussed how the non-medical evidence largely mirrored trogden subjective complaints

[00:12:40] Speaker 04:
In every social security case, lay witnesses generally do have a unique perspective.

[00:12:45] Speaker 04:
But here, the lay witness described limitations that largely mirrored those that trodden described.

[00:12:51] Speaker 04:
And under this court's rulings, for example, Molina v. Astru, when the lay witness testimony is similar, largely mirrors the claimant's testimony.

[00:13:01] Speaker 04:
then there is no harmful error, no basis for reversal, because the ALJ's reasons for discounting the claimant's testimony would apply with equal force to non-medical statements.

[00:13:16] Speaker 03:
I mean obviously people want publication pursuant to, they want it to be published the way that it would be consistent with their view of the case.

[00:13:25] Speaker 03:
Is this something, should there be a published opinion here to address lay witnesses saying you don't have to address them consistent with your regulations?

[00:13:35] Speaker 04:
Certainly, we would have no objection to a published opinion on that case.

[00:13:39] Speaker 04:
The revised regulations are, they came out in 2017, but the cases coming before the appeals court on revised regulations are relatively new.

[00:13:48] Speaker 04:
Our federal registrar, as I noted, does expressly state that ALJs are not required to address

[00:13:55] Speaker 04:
non-medical sort statements in every decision, although they can.

[00:14:00] Speaker 04:
And as we said, we had two unpublished opinions, but you're correct, we don't have a published opinion yet on that.

[00:14:07] Speaker 01:
What should we do with the situation where although the, excuse me, ALJ is not required to discuss the testimony, he or she does so,

[00:14:23] Speaker 01:
and it's in conflict with other testimony, then do we weigh that testimony the same as any other testimony?

[00:14:31] Speaker 04:
So the ALJ is not required, and please correct me if I'm not answering your question, the ALJ is permitted to do so in some cases.

[00:14:39] Speaker 04:
In this case, the ALJ found that the non-medical source statement or lay witness testimony largely mirrored claimant subjective complaints.

[00:14:48] Speaker 04:
And under this court's holdings, for example, in Molina v. Strew, when lay witness testimony largely mirrors a claimant subjective complaints,

[00:14:58] Speaker 04:
The ALJ's reasons for discounting the claimant's subjective complaint, so long as they're valid, would apply similarly to the lay witness testimony.

[00:15:06] Speaker 04:
So that is sufficient under this court's standards to prevent any reversal on that issue.

[00:15:12] Speaker 02:
Have all the unpublished cases thus far just rested on harmless error, that there was no harmless error?

[00:15:18] Speaker 04:
I don't know.

[00:15:19] Speaker 04:
I believe in Kennedy.

[00:15:20] Speaker 04:
I mean, there are two unpublished cases, Fryer and then Kennedy v. O'Malley.

[00:15:25] Speaker 04:
And Fryer said it is clear under the revised regulations that ALJs are no longer required to discuss lay witness testimony in their decisions.

[00:15:34] Speaker 04:
Similarly, in Kennedy v. O'Malley, the court similarly indicated that under the revised regulations, ALJs are no longer required to discuss lay witness testimony.

[00:15:44] Speaker 04:
I don't remember if in those cases they went on to evaluate on the marriage or if they also found harmless error.

[00:15:52] Speaker 04:
I believe they did.

[00:15:53] Speaker 04:
So I believe it was a both and situation.

[00:15:55] Speaker 02:
Stevens versus Kijikaze.

[00:15:57] Speaker 04:
Excuse me?

[00:15:58] Speaker 02:
Stevens versus Kijikaze also addressed this issue.

[00:16:01] Speaker 02:
I was on that panel.

[00:16:02] Speaker 02:
Got it.

[00:16:03] Speaker 02:
Yeah.

[00:16:04] Speaker 04:
So there's been a few unpublished.

[00:16:06] Speaker 04:
Those are the two that I know about where the court expressly did indicate ALJs are no longer required to discuss non-medical source statements.

[00:16:13] Speaker 03:
So as your time is dwindling, I want to make sure.

[00:16:16] Speaker 03:
Do my colleagues have any additional questions?

[00:16:18] Speaker 04:
No, thank you.

[00:16:19] Speaker 03:
We don't have additional questions.

[00:16:20] Speaker 03:
You have a minute and 30 seconds left.

[00:16:23] Speaker 04:
If there are no additional questions, I'd simply state that more than a mere scintilla of evidence here supports the ELJ's findings with regard to the subjective complaints, the treating positions.

[00:16:34] Speaker 04:
I'd also finally just note, under this court's holdings for forfeiture,

[00:16:40] Speaker 04:
For example, in independent towers for Washington, argues must be raised distinctly and specifically so a bare assertion of error does not preserve an issue.

[00:16:49] Speaker 04:
That is what we have here in CAR 159.

[00:16:52] Speaker 04:
A generalized assertion that the ALJ's findings are not supported by medical evidence is not sufficient to preserve it.

[00:16:58] Speaker 04:
But regardless, under SSR-12, I note that that ruling was designed to discuss circumstances when ALJs

[00:17:07] Speaker 04:
must consult a vocational expert, because under our regulations, either we can consult a vocational expert or the ALJ can rely on our grids.

[00:17:17] Speaker 04:
In situations where there's very limited or unusual standing or walking, that is a situation where vocational expert testimony is required under that ruling, and that is what the ALJ did here.

[00:17:26] Speaker 03:
So the SSR 83-12, I asked the other side to give me a site where that was raised.

[00:17:35] Speaker 03:
Are you aware of any site in the record where it was raised?

[00:17:37] Speaker 04:
I am aware of no site in the record where it was raised.

[00:17:40] Speaker 04:
It was not raised at the administrative hearing.

[00:17:43] Speaker 04:
And CAR 159, again, as noted by opposing counsel, that was a generalized or a bare assertion of error.

[00:17:49] Speaker 04:
There was no specific allegation that that site was not complied with.

[00:17:55] Speaker 04:
Okay, thank you.

[00:17:56] Speaker 04:
Thank you.

[00:18:05] Speaker 00:
Just a couple points, your honor.

[00:18:07] Speaker 00:
The commissioner spent a lot of time discussing the cross O'Malley case and how that distinguishes- Do you have a site for me?

[00:18:14] Speaker 00:
Yes, the Crosswell-Malley case, that's 2024, Westlaw 68427.

[00:18:22] Speaker 00:
We also discussed this.

[00:18:24] Speaker 03:
Well, you're giving a case site, right?

[00:18:26] Speaker 03:
I mean, do you have a site in the record where you raise an argument before the administrative agency or the justice court regarding 83-12?

[00:18:36] Speaker 00:
Oh, regarding that.

[00:18:39] Speaker 00:
Apologies, Your Honor.

[00:18:40] Speaker 00:
I was discussing a different point.

[00:18:42] Speaker 00:
The best site we have for that is CAR 159, Your Honor.

[00:18:45] Speaker 00:
And the Commissioner is correct that that was a general argument.

[00:18:47] Speaker 00:
That was a general challenge that Mr. Trogdon raised.

[00:18:51] Speaker 00:
OK.

[00:18:52] Speaker 00:
If that's the site, that's fine.

[00:18:54] Speaker 00:
Yeah, that's the site.

[00:18:55] Speaker 00:
And we would argue and we would just contend there that this court has a discretion to consider issues of waiver.

[00:19:03] Speaker 00:
At first impression here, the parties have already briefed this issue fully, so there wouldn't be much prejudice to the court considering the issue at this point.

[00:19:11] Speaker 00:
But to the point about Mr. Trogdon's ability to drive, the cross O'Malley case is distinguishable on these facts, as we discussed at page 20 to 21 of our reply brief.

[00:19:23] Speaker 00:
In that case, the court actually made specific findings about the testimony about the claimant's ability to drive being inconsistent with the overall treatment notes.

[00:19:34] Speaker 00:
And here, there's just no justifiable basis on how Mr. Trogdon's ability to drive three to four times per week, whenever and however he chooses to do so, is actually inconsistent with the other evidence in the record.

[00:19:49] Speaker 00:
And with respect to, just quickly on the

[00:19:52] Speaker 00:
Jermaine Reason's point, Your Honor.

[00:19:54] Speaker 00:
As the court has noted, there has not been a published decision on that point.

[00:19:59] Speaker 00:
But even if the court applies that standard, the ALJ still was required to consider Ms.

[00:20:08] Speaker 00:
Trogdon's testimony and not just discount it or wave it off simply because there were some overlaps with Mr. Trogdon's testimony.

[00:20:15] Speaker 00:
The ALJ should have considered the ways in which the testimony differed.

[00:20:19] Speaker 00:
And as we outlined in our brief, there are a few

[00:20:22] Speaker 00:
specific unique perspectives that Ms.

[00:20:24] Speaker 00:
Trogdon had, that Mr. Trogdon would not have, that the ALJ should have considered.

[00:20:30] Speaker 03:
All right.

[00:20:30] Speaker 03:
Thank you for your argument.

[00:20:32] Speaker 03:
Thank you both for your argument.

[00:20:33] Speaker 03:
Thank you for the pro bono work that you're doing, and we appreciate this matter, and it will be submitted as of this date.

[00:20:42] Speaker 03:
Thank you.