[00:00:01] Speaker 01:
Thank you, Your Honors.

[00:00:02] Speaker 01:
May it please the Court, I'm Chad Halfield, attorney for Mr. LaRocque and his appeal of his claim for SSI benefits.

[00:00:08] Speaker 01:
This is a de novo review of the administrative law judge's decision, and I do request to defer two minutes for rebuttal.

[00:00:15] Speaker 01:
Administrative law judges have a duty to consider all conditions and their symptoms, and per this Court's decision in Beecher, those from physical and mental health conditions must be considered in combination and not parceled out individually.

[00:00:30] Speaker 01:
Here, the administrative law judge's decision contains errors in law and is not based on substantial evidence, in large part due to a misunderstanding and failure to properly consider Mr. LaRocque's somatic disorder.

[00:00:41] Speaker 01:
This error pervades the entire decision.

[00:00:43] Speaker 01:
A few examples.

[00:00:47] Speaker 01:
Mr. LaRocque reported to the emergency room in October 2018 for chest pain.

[00:00:53] Speaker 01:
He was noted to be nervous and anxious and assessed with anxiety disorder.

[00:00:59] Speaker 01:
He testified that even the thought of going to a hospital caused increased anxiety, yet the ALJ found said some of these kinds of severe conditions you would expect to have more emergency room visits.

[00:01:13] Speaker 01:
The judge questioned why he was not on more medications despite the fact that he had testified that he felt his body was trying to purge these medications from a system

[00:01:25] Speaker 01:
from his body and he had adverse side effects.

[00:01:28] Speaker 01:
One provider even noting that he had good reason for being reluctant based on that adverse side effects he'd had in the past.

[00:01:36] Speaker 01:
The judge questioned why he didn't have more visits and more severe symptoms at these medical visits with these complaints he's having even though the record shows Mr. LaRocque testified he could only go out of his house on some days and only for very short times to attend appointments

[00:01:53] Speaker 01:
But most days, he could not even leave his house.

[00:01:56] Speaker 03:
Can I ask you this question?

[00:01:58] Speaker 03:
Had there been a prior claim and a prior adjudication by this claimant?

[00:02:04] Speaker 01:
Yes.

[00:02:05] Speaker 03:
And when did that happen?

[00:02:07] Speaker 03:
I don't have that in front of me.

[00:02:09] Speaker 01:
Well, the prior mystery of law decision was sent out written in early 2018.

[00:02:18] Speaker 03:
OK, and I've also puzzled by something in the record.

[00:02:23] Speaker 03:
A medical chart on June 13, 2019 has him 6 foot, almost 6 foot 3, weighing 326 pounds.

[00:02:33] Speaker 03:
A year later, July 20, he's 6 foot 6, 3 inches taller, and 245 pounds, 80 pounds lighter.

[00:02:43] Speaker 03:
What's going on?

[00:02:46] Speaker 01:
Well, I'm not sure on the height that might be a mistake.

[00:02:50] Speaker 01:
He does testify to nausea.

[00:02:52] Speaker 01:
He does test.

[00:02:53] Speaker 01:
I mean, his providers have noted he has poor his history, his poor insight and judgment.

[00:02:58] Speaker 01:
preoccupied with thoughts, but he's actually having enough nausea and not eating.

[00:03:02] Speaker 03:
Excuse me.

[00:03:02] Speaker 03:
I'm not asking about that for the moment.

[00:03:04] Speaker 03:
I'm just asking about physical measurements.

[00:03:06] Speaker 03:
The ALJ says he was obese, but he is no longer.

[00:03:12] Speaker 03:
I mean, so are we to take that he's lost 80 pounds in a year?

[00:03:18] Speaker 01:
Potentially, Your Honor.

[00:03:19] Speaker 01:
It did say he didn't have enough income to even afford food at times.

[00:03:26] Speaker 04:
How old is he?

[00:03:32] Speaker 02:
Okay, that's all.

[00:03:34] Speaker 02:
All right.

[00:03:35] Speaker 02:
I think the question was how old is he?

[00:03:37] Speaker 04:
How old is your client?

[00:03:41] Speaker 04:
30.

[00:03:43] Speaker 01:
Now or at the time of the hearing?

[00:03:44] Speaker 03:
Now.

[00:03:47] Speaker 03:
30.

[00:03:53] Speaker 01:
He was born in 1994.

[00:03:58] Speaker 01:
And so the time he alleged disability, he would have been 18 years old.

[00:04:04] Speaker 01:
And then at the time of the hearing in 2020, he would have been approximately 26 if he had had his birthday.

[00:04:11] Speaker 04:
And so in these 30 years, or it's not 30 years, but other than four days working at a carnival, never had a job?

[00:04:21] Speaker 01:
That's correct, Your Honor.

[00:04:22] Speaker 01:
And that was brought up by the administrative law judge.

[00:04:25] Speaker 01:
And he has a history of physical and sexual abuse as a minor in different homes.

[00:04:32] Speaker 01:
He was in special education in school.

[00:04:34] Speaker 01:
alleged disability since the age of 18 has had these conditions.

[00:04:39] Speaker 01:
So the ALJ fall to that for a weak work history, but every single claimant must have a period of low income or no income in order to be eligible for these benefits.

[00:04:51] Speaker 01:
And so this is during the alleged onset date to the present time.

[00:04:56] Speaker 01:
So in that regard, the administrative law judge is holding against the claimant for

[00:05:00] Speaker 01:
not having good work history.

[00:05:02] Speaker 01:
During the time period, he was claiming his conditions keep him from working.

[00:05:07] Speaker 02:
So you say that the ALJ erred in discounting the opinions of some of the treating physicians and maybe starting with Dr. Kendall.

[00:05:16] Speaker 02:
The ALJ said Dr. Kendall only saw him twice.

[00:05:19] Speaker 02:
The one of those visits, the January 2019 visit, he was

[00:05:24] Speaker 02:
seemed basically fine.

[00:05:28] Speaker 02:
So we have one visit where he's not, and the ALJ thought that the findings there were inconsistent with some of the other objective evidence from other times.

[00:05:40] Speaker 02:
So why, I mean, one can agree or disagree with all that, but why is that not within the range of substantial evidence?

[00:05:51] Speaker 01:
I don't think context.

[00:05:52] Speaker 01:
Obviously, that is a reason to discount an opinion.

[00:05:55] Speaker 01:
But within context of here, Dr. Kendall understood that there's a physical and mental component to this alleging suicidal ideation, depressive disorder, not ability to attend appointments frequently.

[00:06:08] Speaker 01:
So not being able to always attend appointments and not having frequent appointments was consistent with opinion that she provided.

[00:06:19] Speaker 01:
They would miss four more days of work per month.

[00:06:21] Speaker 01:
that would be off task.

[00:06:23] Speaker 01:
I struggled with this, both mental health and suicidal ideation.

[00:06:27] Speaker 01:
I think the judge's summary of the record is not accurate.

[00:06:33] Speaker 01:
He said there's only increased symptoms in a brief period of June of 2019.

[00:06:38] Speaker 01:
When we go through in the briefing, we see a pattern of at least half the visits having abnormal findings.

[00:06:46] Speaker 01:
through 2019, in October 2019 being really significant.

[00:06:52] Speaker 01:
And then in March 2020, the provider noting that due to chronic homelessness, inability even to afford food, and being overwhelmed, hasn't seen him for several months.

[00:07:04] Speaker 01:
And then of course, that we have the pandemic with Mr. Lerock saying he's trying to find someone to do telehealth, but couldn't do so yet.

[00:07:16] Speaker 01:
So in that situation, we're saying Dr. Kendall considered both the physical and the mental health.

[00:07:24] Speaker 01:
The ALJ did state that he found the state agency opinions more persuasive.

[00:07:31] Speaker 01:
But of course, those are exactly what we're talking about.

[00:07:33] Speaker 01:
There's a physical doctor who evaluated just the physical complaints, a mental health source who evaluated just the mental health complaints.

[00:07:42] Speaker 01:
And where this derives from a different set of facts,

[00:07:46] Speaker 01:
and that they're considering both the physical and the mental health together.

[00:07:50] Speaker 01:
This opinion, and I'd say for all opinion evidence that the judge did, if you take each one piecemeal and try to give reasons for it, you know, there might be a basis there, but you look at them in connection with each other, they are consistent and should bolster the reliability of the whole.

[00:08:07] Speaker 01:
Dr. Breedlove assessed the somatic disorder with excessive rumination and thought and

[00:08:16] Speaker 01:
on his physical complaints and also gave a marked level limitation for being able to maintain attendance and complete a normal work day and work week without psychologically based symptoms.

[00:08:31] Speaker 01:
It wasn't an inability to do any work, but an inability to sustain work, a normal work day.

[00:08:35] Speaker 01:
Just as Mr. LaRocque had testified as his life was going, going short trips out on some days, the majority of days not being able to leave his home.

[00:08:44] Speaker 02:
You wanted to.

[00:08:48] Speaker 02:
Just suggesting that you wanted to reserve some time.

[00:08:50] Speaker 02:
You're down to about a minute 20.

[00:08:52] Speaker 01:
OK, yes, I'll reserve time.

[00:08:54] Speaker 01:
Thank you.

[00:09:00] Speaker 02:
Mr Staples.

[00:09:09] Speaker 00:
Good morning.

[00:09:09] Speaker 00:
May it please the court, Jeff Staples here for the commissioner who asks that you affirm the district court's judgment because substantial evidence supports the ALJ's findings of fact.

[00:09:20] Speaker 00:
My friend Mr. Hatfield is positing that this whole case kind of comes together with the physical and the mental complaints around a somatic symptom disorder.

[00:09:30] Speaker 00:
And he gets that from Dr. Breedlove's opinion

[00:09:36] Speaker 00:
But I think what's important about that is that, well, first of all, the ALJ considered it at step two.

[00:09:42] Speaker 00:
Did LaRocq have a somatic symptom disorder?

[00:09:45] Speaker 00:
And when you look at Dr. Breedlove's opinion, you find something that's unfortunately very consistent throughout the record, which is that Dr. Breedlove says this is a rule-out diagnosis pending more information.

[00:09:58] Speaker 00:
The findings just aren't there to support that diagnosis.

[00:10:02] Speaker 00:
And so the ALJ noted that and said, I see that.

[00:10:05] Speaker 00:
Dr. Breedlove mentioned that, but it's not supported by anything.

[00:10:08] Speaker 00:
It's a rule-out diagnosis.

[00:10:09] Speaker 03:
So tell me where I can... I'm looking at Dr. Breedlove's report.

[00:10:13] Speaker 00:
Tell me where I can find that it's a rule-out.

[00:10:15] Speaker 00:
It's at page 421.

[00:10:16] Speaker 00:
It's toward the top of the page.

[00:10:19] Speaker 00:
I can bring my computer over.

[00:10:21] Speaker 03:
That's R slash O. Yes, Your Honor.

[00:10:25] Speaker 00:
And at the end of that line, it says, pending more information.

[00:10:29] Speaker 00:
So even Dr. Breedlove didn't think that she had enough information to, you know, assess that diagnosis.

[00:10:35] Speaker 00:
And I think that's what Judge Miller was kind of getting to, that with the paucity of these medical records during this period and the real dearth of abnormal findings, the ALJ found that these opinions are unsupported.

[00:10:52] Speaker 00:
You know, you also have

[00:10:56] Speaker 00:
Dr. Mitchell's reviewing opinion, which relies very heavily on Dr. Breedlove's opinion, which is also, you know, unpersuasive for... Let me ask you this, if I may.

[00:11:09] Speaker 03:
Please.

[00:11:10] Speaker 03:
If we credit Dr. Kendall, in the question asked on the form,

[00:11:16] Speaker 03:
to Dr. Kendall is, how many days would your patient miss on an average per month?

[00:11:22] Speaker 03:
Dr. Kendall checks four days or more.

[00:11:27] Speaker 03:
Symptoms would be unable to perform more duties.

[00:11:31] Speaker 03:
And then question 14, based on cumulative effect, what percentage of time does your patient likely be off task or predictive during a 40-hour week?

[00:11:40] Speaker 03:
Checks over 30%.

[00:11:41] Speaker 03:
Now, if we take that to be true, is he disabled?

[00:11:47] Speaker 00:
I would say probably yes.

[00:11:48] Speaker 00:
I don't recall exactly what questions the vocational expert was asked, but I'm not familiar with any vocational expert that would say that that's compatible with work.

[00:11:58] Speaker 03:
So what happens is that the ALJ simply doesn't believe Dr. Kendall?

[00:12:03] Speaker 00:
The ALJ found that Dr. Kendall's opinion was not persuasive.

[00:12:06] Speaker 00:
That's right, Your Honor.

[00:12:07] Speaker 00:
And the ALJ gave reasons for doing that.

[00:12:10] Speaker 00:
And the reasons were that the opinion was not supported.

[00:12:15] Speaker 00:
As Judge Miller pointed out, Dr. Kendall saw LaRocque only twice during the relevant period.

[00:12:21] Speaker 03:
Dr. Kendall had, to the extent that he had a treating physician during his lifetime, that was Dr. Kendall, correct?

[00:12:28] Speaker 00:
That's right, Your Honor.

[00:12:28] Speaker 00:
Dr. Kendall was the treating physician.

[00:12:30] Speaker 03:
I would point out that we're under the revised medical regulations where that relationship doesn't carry any inherent weight.

[00:12:43] Speaker 03:
Since before that time, Dr. Kendall had been the treating physician, so it's not quite accurate to say that Dr. Kendall has seen him only two times.

[00:12:51] Speaker 03:
Dr. Kendall saw him only two times during a particular period.

[00:12:54] Speaker 00:
Yeah, that's fair.

[00:12:55] Speaker 00:
And on that point, I would point out something that Your Honor brought up, which is that LaRocca has already been seen by an administrative law judge for the period before

[00:13:07] Speaker 00:
the time that we're discussing here.

[00:13:10] Speaker 00:
He was found not disabled.

[00:13:12] Speaker 00:
That was not appealed.

[00:13:13] Speaker 00:
So, you know, to look back to the time when Dr. Kendall was seeing him before is a time when we know he's not disabled.

[00:13:22] Speaker 04:
But at the time the ALJ saw this man,

[00:13:25] Speaker 04:
The ALJ himself conceded that he had, this is step two, he had major depressive disorder, personality disorder, asthma problems, pneumothoracic issues, he was a substance abuser, he was living on the streets,

[00:13:47] Speaker 04:
He dropped out of high school in the 10th grade, special ed before that.

[00:13:55] Speaker 04:
His entire work history comprised four days, a 30-year-old man who worked for four days, foster care, and a litany of circumstantial disabilities that goes on for quite some time.

[00:14:17] Speaker 04:
And when I was reading the ALJ's report, it was almost as though he was considering a different human being than this guy.

[00:14:29] Speaker 00:
LaRocque has not had an easy life.

[00:14:30] Speaker 04:
I'm not trying to come up and say... What job could someone with this profile possibly be reasonably expected to do?

[00:14:40] Speaker 00:
So, I think what I would say to that is

[00:14:46] Speaker 00:
First of all, I don't know.

[00:14:48] Speaker 00:
Is LaRocque ever going to work?

[00:14:51] Speaker 00:
You're a specialist in this.

[00:14:52] Speaker 04:
You know more than most people.

[00:14:53] Speaker 00:
Yes, Your Honor, absolutely.

[00:14:55] Speaker 00:
And here's what, let me say what I would say to that, is what I'm a specialist in and what the ALJ is a specialist in is very narrow.

[00:15:04] Speaker 00:
It's not... It's important.

[00:15:06] Speaker 00:
It is important, but what the ALJ is a specialist in is translating these medical conditions, not the totality of LaRocque's life.

[00:15:17] Speaker 00:
I'm with you, Judge, on what is going on in his whole life, and it's not a pretty picture.

[00:15:26] Speaker 00:
But what the ALJ has to do is look at the medical record in this case and decide whether

[00:15:32] Speaker 00:
you know, these opinions like Dr. Kendall's opinion, is it supported by objective medical evidence?

[00:15:38] Speaker 00:
And is it consistent with the other medical evidence in the record?

[00:15:42] Speaker 00:
So, you know, you can certainly look at LaRocque's life and make some, you know, conclusions about whether we think he's probably going to work or not, but that's not what this decision is about.

[00:15:58] Speaker 00:
This decision is about looking at the medical record

[00:16:01] Speaker 00:
and drawing reasonable conclusions about specific functional limitations, and then taking those specific functional limitations and deciding whether they would prevent LaRoe from working.

[00:16:14] Speaker 04:
Not whether he's likely... Why wouldn't they on this record?

[00:16:17] Speaker 00:
They wouldn't on this record because the limitations that Dr. Kendall is describing, as Judge Fletcher was pointing out, those are the disabling limitations.

[00:16:26] Speaker 00:
But what the LJ had to do was ask whether those limitations are consistent

[00:16:31] Speaker 00:
and supported by objective medical evidence.

[00:16:34] Speaker 03:
So when ... No, objective medical evidence.

[00:16:39] Speaker 03:
What's the word medical doing in there?

[00:16:41] Speaker 03:
What kind of work is that?

[00:16:43] Speaker 03:
Is it supported by objective evidence?

[00:16:46] Speaker 03:
Would be different from objective medical evidence.

[00:16:50] Speaker 03:
And that may be a key ... I mean, it sounds like petafogging, but that may be a key question here is ... I mean, so I get a rule out.

[00:16:57] Speaker 03:
I'm looking now at Dr. Breedlove.

[00:17:00] Speaker 03:
If we don't question the symptoms, do we nonetheless deny benefits because we can't quite figure out the source of the symptoms, even though we don't question the symptoms?

[00:17:13] Speaker 00:
Do you mean we here today?

[00:17:14] Speaker 03:
Yeah, yeah.

[00:17:15] Speaker 00:
That's what I'm asking.

[00:17:15] Speaker 00:
Well, first of all, I think there are reasons to question the symptoms, but assuming we're not questioning the symptoms,

[00:17:23] Speaker 00:
I think that there are still reasons to question the opinions, for example, from Dr. Kendall.

[00:17:32] Speaker 00:
And, you know, as I pointed out, we're in the world of these revised regulations where object of medical evidence

[00:17:39] Speaker 00:
is essential.

[00:17:40] Speaker 00:
That's one of the two factors that an ALJ has to discuss every time the ALJ considers the persuasiveness of a medical opinion.

[00:17:48] Speaker 00:
You can't set that to one side.

[00:17:50] Speaker 00:
You have to look every time at is there objective medical evidence supporting this opinion?

[00:17:57] Speaker 03:
Here we are again to that magic word medical evidence.

[00:17:59] Speaker 03:
What is the difference between objective evidence and objective medical evidence?

[00:18:04] Speaker 03:
Meaning, I can't lift something.

[00:18:06] Speaker 03:
Is that objective evidence?

[00:18:08] Speaker 03:
Is that objective medical evidence?

[00:18:10] Speaker 03:
I can't get out of bed in the morning.

[00:18:13] Speaker 03:
What's the word medical doing there?

[00:18:16] Speaker 00:
I think in the context of a disability case, objective medical evidence is going to be

[00:18:25] Speaker 00:
the only kind of objective evidence in the file because we're just mostly looking at medical records the kind of things that you're describing.

[00:18:32] Speaker 00:
Can I lift?

[00:18:33] Speaker 00:
Can I get out of bed?

[00:18:34] Speaker 00:
Those things are subjective.

[00:18:36] Speaker 00:
That's what LaRocq is coming in.

[00:18:37] Speaker 03:
No, that can't be right.

[00:18:38] Speaker 03:
If I can't lift 20 pounds, that's objective.

[00:18:42] Speaker 03:
That's not subjective.

[00:18:43] Speaker 03:
It may not be medical in the way that you're trying to use the word medical, but it's clearly objective.

[00:18:49] Speaker 03:
I can't lift it.

[00:18:50] Speaker 00:
So the term objective medical evidence, it's a term of art.

[00:18:55] Speaker 00:
It has a specific definition in the regulations.

[00:18:59] Speaker 03:
Yeah, what I'm after, and I'm not sure you can help me because I'm not sure it's your fault.

[00:19:05] Speaker 03:
My question is, if we have clear evidence of capacity or incapacity, is it fatal to the claim if we can't arrive at a conclusive medical diagnosis for the source of the disability?

[00:19:23] Speaker 00:
I think what I would say about the capacity question and how do we define that, I think when you're talking about how much can the person lift, how long can they stay on their feet, I think those questions can be answered by two sources, neither of which is objective medical evidence.

[00:19:39] Speaker 00:
One is the claimant's statements.

[00:19:41] Speaker 00:
The claimant coming say, hey, I can only lift 10 pounds.

[00:19:43] Speaker 00:
And another is a doctor making an opinion.

[00:19:46] Speaker 00:
In my opinion, this person can lift 10 pounds.

[00:19:49] Speaker 00:
This person can stay on their feet for six hours.

[00:19:53] Speaker 00:
What you need then is, in order to support that opinion, when a doctor makes an opinion like that, is some laboratory data, or imaging, or these are the kind of things that are object of medical evidence that a doctor, not lawyers, not the administrative law judge, but that a doctor can look at and say,

[00:20:19] Speaker 00:
Here's the thing that tells me in my professional expertise that a person with this kind of situation, I think based on all the evidence, they can only lift 10 pounds or whatever the case may be.

[00:20:35] Speaker 00:
And the fact that you don't have that here is the problem with LaRocque's case.

[00:20:40] Speaker 00:
And the reason that the ALJ gave for looking at these opinions about his capacity

[00:20:45] Speaker 00:
You know, there are opinions about his capacity, and the ALJ compared those with the medical record.

[00:20:53] Speaker 00:
And it was really just too scant.

[00:20:55] Speaker 00:
It didn't support these opinions about the extent of his functional limitations.

[00:21:01] Speaker 00:
And because substantial evidence supports the ALJ's assessment, we would ask the court to affirm, unless there are further questions.

[00:21:08] Speaker 00:
Thank you.

[00:21:08] Speaker 00:
Thank you very much.

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

[00:21:11] Speaker 02:
Mr. Hatfield?

[00:21:13] Speaker 01:
Yes, I think it's very important to understand Dr. Breedlove did make a diagnosis, an unspecified somatic symptom and related disorder, rule out somatic symptom disorder, and that's versus a somatiform disorder.

[00:21:26] Speaker 01:
There is a diagnosis, and she did recommend that there be a seasoned and experienced practitioner to treat his case due to the complexity of it.

[00:21:35] Speaker 01:
So there's different modalities, different ways of treating this.

[00:21:37] Speaker 01:
different kind of variants of this condition, but it is diagnosed in the record.

[00:21:41] Speaker 01:
That rule out is just for the specific example, like autism and versus Asperger's.

[00:21:46] Speaker 01:
You're still on the spectrum.

[00:21:49] Speaker 01:
This was a diagnosis.

[00:21:52] Speaker 01:
In Buck versus Barry Field in the Ninth Circuit, clinical observations are objective evidence.

[00:21:57] Speaker 01:
That's the nature of psychiatry.

[00:21:59] Speaker 01:
The judge did not say there was not clinical observations of mental health disease.

[00:22:04] Speaker 01:
He just wanted more.

[00:22:06] Speaker 01:
And the reasons he wasn't able to see more, well, one, he mistakenly said it was just June of 19 where the record supports much more than that.

[00:22:14] Speaker 01:
But most importantly, there wasn't more because due to the nature of the condition itself, he was not able to get more treatment and due to his resources.

[00:22:23] Speaker 01:
These are both reasons that an ALJ, it's improper to hold against a client, a claimant.

[00:22:29] Speaker 01:
So if it's improper to hold against the claimant, you can't say that and say, hey, we need more in order to

[00:22:35] Speaker 01:
to substantiate the opinion of those who have actually seen and treated him and have made these opinions.

[00:22:43] Speaker 01:
So for those reasons, there is a diagnosis.

[00:22:47] Speaker 01:
There is objective evidence supporting that.

[00:22:51] Speaker 01:
And it is all consistent with each other, but not if you piece and parcel out all the different aspects of it.

[00:22:59] Speaker 01:
Looking at it as a whole, the judge's decision is not best.

[00:23:03] Speaker 01:
But based on substantial evidence, it does contain errors of law.

[00:23:07] Speaker 02:
Thank you very much.

[00:23:08] Speaker 02:
Thank both counsel for their arguments and the cases submitted.