[00:00:03] Speaker 04:
And we will hear first from Mr. Rolfing.

[00:00:08] Speaker 01:
Good morning.

[00:00:08] Speaker 01:
May it please the court?

[00:00:12] Speaker 01:
Lawrence Rolfing on behalf of Rooney Romero.

[00:00:15] Speaker 01:
This is a social security disability case.

[00:00:17] Speaker 01:
Mr. Romero had a psychotic break and immediately applied for disability benefits.

[00:00:26] Speaker 01:
His journey starts in September of 2019.

[00:00:29] Speaker 01:
His claim is denied initially in February of 2020 and on reconsideration in April of 2020.

[00:00:35] Speaker 01:
He was, as of April 2020, he was still five months away from his statutory one year duration requirement.

[00:00:47] Speaker 01:
And both Dr. Paxson and Dr. Patterson opined that by September of 2020,

[00:00:56] Speaker 01:
He will be better.

[00:00:57] Speaker 04:
I mean, that's one reading of it.

[00:01:00] Speaker 04:
But, you know, the document seems somewhat ambiguous.

[00:01:07] Speaker 04:
And don't we normally defer to the agency's interpretation of ambiguous evidence if it can be read two different ways and they adopt one way, we have to go along with that?

[00:01:22] Speaker 01:
That's the usual rule, but this exists in a slightly different context.

[00:01:30] Speaker 01:
We should readily assume under a doctrine of governmental regularity that Dr. Paxton and Dr. Patterson actually know what they're doing, and they're following the guidelines that are in the program's operation manual system, commonly referred to as POMPS.

[00:01:46] Speaker 01:
And POMS in 24510.020A sets out the policy principle.

[00:01:53] Speaker 01:
And there's a note at the bottom of that section in the POMS.

[00:01:58] Speaker 01:
Do not project severity if a claimant's impairment, though severe, does not currently prevent substantial gainful activity, SGA.

[00:02:09] Speaker 01:
Why would Dr. Paxton and Dr. Patterson say, by September of 2020, this is going to be his residual functional capacity?

[00:02:21] Speaker 01:
And Palms answers that question.

[00:02:23] Speaker 01:
You're told.

[00:02:24] Speaker 04:
There's a lot of points in these documents where they use the present tense

[00:02:37] Speaker 04:
you know, they go through all the issues, you know, he is capable of doing this, he retains adequate ability to, but it all seems like it's being done in the present, not that he will be able to do this later.

[00:02:53] Speaker 04:
I understand, you know, the summary comment, it does read more the way you want it, but there's other parts of the document that read a different way, and that's, normally we don't get to

[00:03:06] Speaker 04:
second-guess agencies when they read ambiguous things?

[00:03:11] Speaker 01:
Well, part of the problem with ambiguity, if there is one, and to me, the labeling of this RFC as projected is dispositive, but if we're struggling with an ambiguity, the first thing we need to do is say, this is ambiguous.

[00:03:32] Speaker 01:
The judge didn't think it was ambiguous.

[00:03:35] Speaker 01:
The judge didn't think it was ambiguous at all.

[00:03:37] Speaker 01:
The judge thought that this applied from September of 2019 when he gets out of the hospital until the date of adjudication in 2021.

[00:03:44] Speaker 01:
There's no recognition of ambiguity.

[00:03:47] Speaker 01:
There's no dealing with the fact that both Dr. Patterson and Dr. Paxton said the residual functional capacity is effective September 2020.

[00:03:57] Speaker 01:
And that's clear, and under Vincent

[00:04:02] Speaker 01:
the heckler and the cases that have followed Vincent for the last 40 years have said that when there's probative evidence, the judge must address that probative evidence.

[00:04:13] Speaker 01:
And that's a basic tenet of administrative law.

[00:04:16] Speaker 01:
And so when Dr. Patterson and Dr. Paxton say, this is the residual functional capacity, and as of September 2020, and then uses the present tense verb later on underneath that heading,

[00:04:34] Speaker 01:
The judge should at least address that, but she didn't.

[00:04:37] Speaker 01:
She didn't address that.

[00:04:38] Speaker 01:
Because POMS is clear.

[00:04:41] Speaker 01:
They don't exercise their medical adjudicated responsibilities under the statute and the regulations to project

[00:04:53] Speaker 01:
an RFC as of September of 2020 instead of currently, which is the label that is typically on a residual functional capacity assessment, or they're projecting because of the date last insured in a Title II cases in the past, they'll say as of that date last insured, this is a residual functional capacity, or there's an insufficient evidence residual functional capacity.

[00:05:17] Speaker 01:
Those are the four flavors that we get in this administrative paradigm.

[00:05:24] Speaker 01:
Dr. Patterson and Dr. Paxton were clear that this is a projected residual functional capacity.

[00:05:31] Speaker 01:
And to not countenance that projection,

[00:05:39] Speaker 01:
is clear error, Judge.

[00:05:41] Speaker 03:
Mr. Rolphin, I guess I'm not sure what to make of that.

[00:05:44] Speaker 03:
And of course, as Judge Collins has said, this is a substantial evidence review.

[00:05:47] Speaker 03:
Can you speak a little bit, the ALJ did spend quite a bit of time discussing

[00:05:54] Speaker 03:
a pretty consistent record of Mr. Romero's mental acuity judgment.

[00:06:06] Speaker 03:
Why shouldn't we credit all of that as being decisive here?

[00:06:14] Speaker 01:
Under this court's decision in Tackett, the judge isn't allowed to go it alone.

[00:06:19] Speaker 01:
The judge needs evidence that is probative and significant.

[00:06:23] Speaker 03:
Well, this is based on repeated remarks in the medical record, as well as both opinion evidence, as well as the secondhand reporting of Mr. Romero's reports to these experts.

[00:06:41] Speaker 03:
So I'm not talking about where he's going it alone.

[00:06:43] Speaker 03:
There's pretty consistent evidence of him being, again, good judgment.

[00:06:50] Speaker 03:
Why isn't that decisive?

[00:06:52] Speaker 03:
What did he miss?

[00:06:56] Speaker 01:
The mental status examination typically contains 27 points of inquiry, but the regulations, the appendix one listing 12.00 paragraph C2 lists the things that are necessary to consider in terms of assessing a mental residual functional capacity.

[00:07:16] Speaker 01:
And good judgment is a fraction of that equation.

[00:07:22] Speaker 01:
So in October of 2020, for instance, so this is the first visit after the 12-month anniversary.

[00:07:30] Speaker 01:
He's still having anhedonia two or three times a week.

[00:07:33] Speaker 01:
They want to get it down.

[00:07:35] Speaker 01:
He's still having inappropriate response to internal stimuli two to three times a day.

[00:07:43] Speaker 01:
Two to three times a day, he's responding to internal stimulation that is impacting his ability to function.

[00:07:52] Speaker 01:
He may have good judgment.

[00:07:54] Speaker 01:
He may know not to commit homicide or murder.

[00:07:58] Speaker 01:
He may know to drop a stamped envelope in a mailbox.

[00:08:03] Speaker 01:
He may understand that he's having mental health symptoms and he have good insight.

[00:08:08] Speaker 01:
But that doesn't mean that he's not still responding to internal stimulation.

[00:08:15] Speaker 01:
In October of 2020, two to three times a day

[00:08:22] Speaker 01:
I see that I'm- Can I have some time for rebuttal?

[00:08:24] Speaker 01:
Yes, please.

[00:08:24] Speaker 01:
Thank you.

[00:08:25] Speaker 04:
All right.

[00:08:26] Speaker 04:
So we'll hear now from Ms.

[00:08:29] Speaker 04:
Feyer.

[00:08:38] Speaker 00:
Good morning, Your Honors.

[00:08:39] Speaker 00:
Elizabeth Fear on behalf of Martin O'Malley, the Commissioner of Social Security.

[00:08:44] Speaker 00:
The record in this case has a pretty obvious and clear trajectory from the time when this claimant had his breakdown in October 2019.

[00:08:53] Speaker 00:
His alleged onset date is actually a month prior to that.

[00:08:56] Speaker 00:
I'm not sure why.

[00:08:57] Speaker 00:
But in October 2019, he had a breakdown where he was hallucinating and he was delusional.

[00:09:04] Speaker 00:
And this was brought on by

[00:09:06] Speaker 00:
drug use.

[00:09:08] Speaker 00:
He's admitted on several occasions that it was marijuana and mushrooms that he took at this time.

[00:09:13] Speaker 00:
So this is October 2019.

[00:09:17] Speaker 00:
Almost immediately after that, he starts improving.

[00:09:19] Speaker 00:
He starts improving in the hospital when he's properly medicated.

[00:09:23] Speaker 00:
Then he has another incident in December

[00:09:27] Speaker 00:
um, 2019, where he, um, goes back to the emergency room, and that's because he's, um, he has suicidal ideation at that time, but it's much shorter than the previous hospitalization, and he's not delusional at that time.

[00:09:39] Speaker 00:
So he's already improving by the time that Dr. Patterson first looked at this record in February

[00:09:46] Speaker 00:
2020.

[00:09:46] Speaker 00:
And by that time, irrespective of whether the court wants to find that the functional capacity in Dr. Patterson's and Dr. Paxton's findings projected or not

[00:09:59] Speaker 00:
I would agree with Judge Collins that it's in the present tense and by February, which is the earliest that these doctors are looking at the record, he's already considerably improved from the time that he had his breakdown, which was the impetus of his disability claim.

[00:10:14] Speaker 04:
There are two things about the reports, well actually three things that are significant.

[00:10:21] Speaker 04:
One is that it says, although your condition is, limitations are currently severe, then, you know, it will get better, basically.

[00:10:32] Speaker 04:
The other is this focus on 12 months.

[00:10:34] Speaker 04:
In 12 months, this wasn't randomly picked out of the air.

[00:10:37] Speaker 04:
It not only isn't in the palm, it's in the statute that it has to be over 12.

[00:10:41] Speaker 04:
So, obviously, looking at that issue, which,

[00:10:45] Speaker 04:
You know, we don't always see in these.

[00:10:47] Speaker 04:
Usually they just say they are or they aren't.

[00:10:50] Speaker 04:
And to invoke the 12 months suggests you think something's different about this case.

[00:10:55] Speaker 04:
And the third thing, which I initially thought maybe was a typo, was the use of EOD rather than AOD, which would suggest, again, all these data points think

[00:11:08] Speaker 04:
that they really do think he's got a lot of problems now, but it won't last 12 months.

[00:11:13] Speaker 04:
And this ALJ seemed to just totally miss this issue.

[00:11:17] Speaker 00:
Well, I don't think the ALJ has an obligation to address this issue.

[00:11:21] Speaker 00:
Let's assume that the DDS psychological consultants fill this out the correct way.

[00:11:27] Speaker 00:
That still shows, both reports show that within 12 months from the, let's say EOD, which would be his, because they use EOD, established onset date,

[00:11:37] Speaker 00:
and AOD almost interchangeably.

[00:11:40] Speaker 00:
So let's assume it's the alleged onset date that's the established.

[00:11:43] Speaker 00:
That is September 2019, which predates the medical emergency kind of situations.

[00:11:50] Speaker 00:
But within 12 months, both of these doctors have said that the claimant will have the ability to work under the parameters that they set there.

[00:11:59] Speaker 04:
But the LG didn't seem to realize this was a projection and treated it as evidence of current

[00:12:08] Speaker 04:
contemporaneous capacity, and given what seems like a clear mistake, does that mean it has to go back?

[00:12:17] Speaker 04:
I mean, maybe the ALJ will reach the same conclusion, but maybe it needs to go back because we can't reweigh this if we think that this got messed up.

[00:12:25] Speaker 00:
Well, you don't have to reweigh it.

[00:12:28] Speaker 00:
First of all, I will say that I don't think the ALJ had any obligation to address the temporary, even if it was projected, because the record proves that the claimant

[00:12:38] Speaker 00:
improved within the parameters set forth in those DDS reports.

[00:12:43] Speaker 00:
So what the ALJ did was look at the record as a whole and she addressed what is in those reports.

[00:12:50] Speaker 00:
So let's assume it's projected by the time it's, by the time that 12 months is up, the ALJ is looking at the record and the ALJ has more evidence in front of her.

[00:12:59] Speaker 03:
But the ALJ also, I mean, discussed, I think there's a significant discussion of the fact that Mr. Romero is not compliant with

[00:13:06] Speaker 03:
medication and this is I think the projections all have to be predicated on complying with a treatment plan.

[00:13:16] Speaker 03:
What are we to do with that?

[00:13:18] Speaker 00:
Well, that is part of the

[00:13:21] Speaker 00:
The complying with treatment was that he stayed off drugs.

[00:13:25] Speaker 00:
And by the end of December 2019, he's reporting that he's off drugs.

[00:13:29] Speaker 03:
That's one part, but it's pretty clear that there are some psychiatric symptoms that are being treated with several different approaches.

[00:13:36] Speaker 00:
No question.

[00:13:38] Speaker 00:
And there was a few more points that I wanted to make about the state agency reports and the ALJ's RFC finding.

[00:13:43] Speaker 00:
The LG looked at those in the context of the record as a whole and decided that the claim was, in fact, at the time of her decision, a little bit more limited.

[00:13:51] Speaker 00:
So she added social limitations, she added concentration within two-hour increments, and she had a prohibition against fast-paced work and production-level work.

[00:14:01] Speaker 00:
But back to the treatment.

[00:14:03] Speaker 00:
If you look at what the record shows regarding his medication compliance, back in October 2019, when everything happens, page 636, he's not taking his medications.

[00:14:14] Speaker 00:
He also says that in November 2019, he's telling Dr. Ingram that he doesn't want to take Abilify, and he says it's because of weight gain.

[00:14:25] Speaker 00:
She says that's weight gain neutral.

[00:14:27] Speaker 00:
medication, but all antipsychotics are going to probably cause weight gain.

[00:14:33] Speaker 00:
So the clinic's not taking in November 2019.

[00:14:36] Speaker 00:
Then by December 2019, he's telling, he's refusing, and this is Dr. Ingram on page 609, he's refusing physical therapy, or one-on-one therapy.

[00:14:47] Speaker 00:
he stopped taking another medication because of sexual side effects and he stopped taking Abilify on his own and against medical advice.

[00:14:56] Speaker 00:
But then by, he's still improving even with this.

[00:15:00] Speaker 00:
So the point of the ALJ's reliance on this treatment history and this lack of compliance is that he's not taking, he goes on and off his medications

[00:15:09] Speaker 00:
against medical advice.

[00:15:11] Speaker 00:
And there's a page, on page 1086, this is in July 2020, Dr. Lewis, who's another treating physician who comes in later in the game, she discusses with claimant that he has to take his meds for 30 days for them to be effective.

[00:15:25] Speaker 02:
Can you point me to a portion of the ALJ's decision where it indicates that the ALJ considered Romero's explanations for going on off his medications?

[00:15:35] Speaker 02:
I mean, does she explain it?

[00:15:36] Speaker 00:
I don't think she did.

[00:15:37] Speaker 00:
She's just talking about how he's going on and off.

[00:15:41] Speaker 00:
And that is under our Social Security ruling 163P.

[00:15:45] Speaker 00:
Acclaimants' willingness or need to stay on a prescribed course of treatment

[00:15:52] Speaker 00:
does go to the verity of his subjective allegations overall.

[00:15:57] Speaker 00:
And if this claimant is not taking his meds the way he's supposed to, he's not waiting the 30 days to make sure that they're effective, that shows, and he's more concerned about his weight gain.

[00:16:07] Speaker 04:
The case law that says that sometimes people don't stay on their medication because of the underlying illness itself, and that

[00:16:17] Speaker 04:
And when that is suggested in the record, that's something the ALJ has to consider.

[00:16:22] Speaker 04:
What's your response to that case?

[00:16:24] Speaker 00:
Well, we have the reasons why he stopped taking them.

[00:16:27] Speaker 00:
At several points, he notes weight gain.

[00:16:29] Speaker 00:
That's not a psychiatric symptom that would prevent him from taking medications.

[00:16:34] Speaker 00:
He also talks about the sexual side effects of other medications.

[00:16:37] Speaker 00:
That shows that he's much more

[00:16:40] Speaker 00:
Capable he's thinking about these meds not in terms of their therapeutic effect for his mental illness in fact at page I believe it's page 1074.

[00:16:48] Speaker 00:
He says he'd rather be skinny and have a personality disorder.

[00:16:52] Speaker 03:
So I mean we're aware of the record and we can we can pick out these these pieces I guess pivoting off of the question of his own testimony I believe we also have case law that requires the ALJ to provide clear and convincing reasons I see

[00:17:09] Speaker 03:
several reasons.

[00:17:10] Speaker 03:
It's well documented with respect to the testimony I discussed with your friend in terms of his kind of mental competence on good days.

[00:17:18] Speaker 03:
Where does the ALJ provide clear and convincing reasons that address his direct testimony on the fact that

[00:17:27] Speaker 03:
You know, for half of a week he could be unregulated, insomnia, anxiety.

[00:17:36] Speaker 03:
That seems pretty significant, and I don't see the ALJ paying as much attention to that piece as to these other reports.

[00:17:42] Speaker 00:
Well, the ALJ's discussion of the subjective centers is on page 17 and 18.

[00:17:47] Speaker 03:
But I would the ALJ knows that this claimant is limited and she knows that he has significant and your honor, I guess just to just to Come back to this the ALJ on 17 and 18 says the claimant alleged

[00:18:03] Speaker 03:
delusions, insomnia, et cetera, the ALJ focuses on coherent.

[00:18:07] Speaker 03:
Obviously, some of the more troubling symptoms of psychosis addresses that.

[00:18:13] Speaker 03:
Insight good, obsessive-compulsive ideals that, intact memory, but doesn't seem to come back to what seems to be quite material evidence of the fact that he can't make it through a week awake on regular sleep patterns, the things that might even more directly affect

[00:18:32] Speaker 03:
His ability and then the RFC points out that two hours at a time So how it wears I still don't see the part where they're addressing The insomnia the sleeplessness the anxiety as opposed to the mental coherency, which I agree is documented

[00:18:48] Speaker 00:
Well, Your Honor, I don't think this record proves in any way that he can't get through a week because of insomnia.

[00:18:54] Speaker 00:
And I would like to also point to there are several references in the record from four different medical sources, Dr. Ingram, Dr. Salib, and Dr. Gutierrez, and Dr. Morales that say claimants

[00:19:07] Speaker 00:
The psychotic symptoms that he had when he was hospitalized have now been reduced to irritability, anxiety, and symptoms of depression, which he has three to seven days a week, and they're hoping will be reduced to three to 30 days a week.

[00:19:21] Speaker 00:
Someone can have symptoms three to seven days a week that doesn't disable them.

[00:19:26] Speaker 00:
We are not doubting that this claimant has psychiatric symptoms.

[00:19:32] Speaker 00:
is able to work within the RFC that the ALJ assessed, which is consistent with the record in which my opponent has not pointed to any legal or material error.

[00:19:42] Speaker 03:
I'm just not sure what to do with this, and I understand that the RFC is clear.

[00:19:46] Speaker 03:
How is he supposed to be employable if he can only work two hours at a time?

[00:19:51] Speaker 00:
I don't, there's nothing in the record that says he can only work two hours a day.

[00:19:54] Speaker 03:
The RFC is remember and carry out simple routine tasks for up to two hour periods of time with only occasional interaction with the general public.

[00:20:01] Speaker 00:
Am I misreading that?

[00:20:01] Speaker 00:
That means short increments.

[00:20:03] Speaker 00:
That, you know, like during a work day, there's two hours and then you have a scheduled break, you have a scheduled lunch.

[00:20:09] Speaker 00:
That's not, the ALJ's RFC is for a full eight hours of work.

[00:20:12] Speaker 00:
And I would like to just address Judge Collins' point about the DDS doctors' reports in severe versus disabling.

[00:20:21] Speaker 00:
These doctors absolutely agreed that this claimant would have severe impairments for more than 12 months.

[00:20:27] Speaker 00:
But severe is the step two threshold.

[00:20:30] Speaker 00:
That doesn't mean disabling.

[00:20:31] Speaker 00:
It means that he has impairments that are going to continue to limit him.

[00:20:34] Speaker 00:
And that's what the ALJ found based on this record.

[00:20:38] Speaker 04:
Final question, I know we've taken over your time.

[00:20:41] Speaker 04:
If we were to find that the ALJ erred in failing to appreciate that the reports of Dr. Paxton and Dr. Patterson were projections and not contemporaneous evaluations, if we were to find that was a mistake,

[00:21:06] Speaker 04:
Would it have to go back, or do you think it could still be upheld that that error would be harmless?

[00:21:15] Speaker 00:
There would be no reason to remand it, and there's two reasons, because the ALJ looked at those reports the way she was supposed to, and in fact found the claimant based on the rest of the record more limited than those doctors did.

[00:21:28] Speaker 00:
And the second reason is that if you look at the ALJ's decision ... She found them more limited than both doctors Patterson and Paxton did.

[00:21:35] Speaker 00:
So the ALJ ... She found what more limited?

[00:21:37] Speaker 00:
Claimant, more limited.

[00:21:39] Speaker 00:
Sorry.

[00:21:40] Speaker 00:
The RFC is more limiting than what those doctors said.

[00:21:43] Speaker 00:
So we know the ALJ looked at them in the context of the record as a whole.

[00:21:47] Speaker 00:
And given that, her decision is still supported by substantial evidence, irrespective of whether you think she should have acknowledged that these two reports were prospective.

[00:21:58] Speaker 00:
Substantial evidence still supports her findings, and it still shows that she adequately addressed the limitations contained within those reports.

[00:22:07] Speaker 04:
All right.

[00:22:07] Speaker 04:
Thank you, Your Honor.

[00:22:19] Speaker 01:
In this case, we have doctors that reasonably agreed, Dr. Patterson, Dr. Paxson, that his functional capacity was likely to change.

[00:22:30] Speaker 01:
We have assessments, and counsel has agreed that he's still having symptoms three or more times per week, every week.

[00:22:39] Speaker 01:
I just disagree with her on one thing, weight gain

[00:22:43] Speaker 01:
or weight loss is a significant recognized symptom of depression in listing 12.04a paragraph 1.

[00:22:53] Speaker 01:
Changes in weight are a symptom of a depressive symptomatology.

[00:22:57] Speaker 01:
And so all of the – and his concern about weight gain is reasonable.

[00:23:05] Speaker 01:
We have – and

[00:23:06] Speaker 01:
To go to your point, Your Honor, on the harmlessness issue, we can't be confident under stout what the result would be if the ALJ looked at this symptomatology that Dr. Paxson and Dr. Patterson are looking at, and then looking at his continued symptomatology in the year that comes after that to say that she would have reached the same result.

[00:23:30] Speaker 01:
She started from a flawed foundation,

[00:23:33] Speaker 01:
And once we take the foundation away, the whole house falls down.

[00:23:40] Speaker 01:
Thank you, Your Honor.

[00:23:41] Speaker 04:
All right.

[00:23:41] Speaker 04:
Thank you, Counsel.

[00:23:43] Speaker 04:
All right.

[00:23:43] Speaker 04:
The case just argued will be submitted.