[00:00:00] Speaker 04:
And we will move on to the third argument set for today, which is Nielsen versus O'Malley, case number 23-35619.

[00:00:39] Speaker 04:
Mr. Hatfield.

[00:00:41] Speaker 01:
Yes.

[00:00:41] Speaker 01:
Good morning, Your Honors, and please the Court.

[00:00:44] Speaker 01:
I am Chad Hatfield representing Ms.

[00:00:46] Speaker 01:
Nielsen in her appeal of the administrative law judge ALJ's denial of social security disability benefits.

[00:00:52] Speaker 01:
The standard of review is the de novo review of the ALJ's decision.

[00:00:56] Speaker 01:
I do wish to reserve two minutes for rebuttal.

[00:01:01] Speaker 01:
The primary contention of the Commissioner in this case is that if there is alternative

[00:01:08] Speaker 01:
rational interpretations of the evidence, then the ALJ's decision should not be overturned.

[00:01:13] Speaker 01:
However, that test cannot be that if the ALJ misinterprets the evidence, takes the evidence out of context, misses certain evidence, then the evidence with the porous conclusion should not be overturned.

[00:01:25] Speaker 01:
To say reasonable minds could come to different conclusions does not override the ALJ's duty to properly consider all evidence

[00:01:33] Speaker 01:
In doing so, that would be the prohibited activity by this court of cherry picking the evidence.

[00:01:39] Speaker 01:
In this claim, we see that Miss Nielsen has not claimed that she doesn't have the cognitive ability to maintain attention and focus.

[00:01:49] Speaker 01:
She concedes that within the confines of her own home, she's able to play little games on her phone, she's able to have telephone

[00:01:58] Speaker 01:
Hello video visits with her mental health provider on most days, able to watch TV and do that.

[00:02:05] Speaker 01:
By leaving her home, she says she must take for appointments two days to calm herself down, engages in self-cutting behavior to build emotional pain.

[00:02:14] Speaker 01:
She's able to leave only with the companionship of her fiance, is able to make it through 45 to 60 minutes during an appointment, and then must rush immediately home.

[00:02:24] Speaker 01:
And this is her contentional disability,

[00:02:27] Speaker 01:
Now the reason what the ALJ, his findings, it's really important to find what the actual ALJ actually found for dismissal.

[00:02:36] Speaker 01:
So when the social security system of the state agency hired a consult Dr. Anderson to do a psychological consultative examination, Dr. Anderson found her tendency to isolate mood symptoms not due to cognitive impairment, due to her mood systems and tendency to isolate, her ability to maintain attendance in the workplace is markedly impaired.

[00:02:57] Speaker 01:
To this, the ALJ said, there is no supporting evidence of a marked rating for attendance issue.

[00:03:05] Speaker 01:
And it's really important that we stay to the reasons the ALJ offered for rejecting this opinion.

[00:03:13] Speaker 01:
We see throughout the record, she underwent a psychological evaluation from the social security source, Dr. Anderson, also the state agency, sort of Dr. Islam Zork, underwent a review

[00:03:25] Speaker 01:
of that by Dr. Harmon, which the ALJ failed to address, and then had this opinion of her treating psychologist, Ms.

[00:03:33] Speaker 01:
Weld, which all give support for a marked limitation in attendance.

[00:03:39] Speaker 01:
The vocational expert found that even missing more than one day per month would preclude all competitive employment.

[00:03:47] Speaker 01:
The ALJ said there's no supporting evidence for this.

[00:03:50] Speaker 01:
And I would like to go through the ALJ

[00:03:55] Speaker 01:
I gave a string citation used for all sources, except for the one he forgot to mention, Dr. Harmon.

[00:04:02] Speaker 00:
Excuse me.

[00:04:03] Speaker 01:
Yes.

[00:04:03] Speaker 00:
Of the string citation, a lot of them seem to be non-mental health practitioners who were just doing some boilerplate thing about how she looked when she walked in and she looked happy.

[00:04:19] Speaker 00:
But some of them were not, right?

[00:04:21] Speaker 00:
Were some of them from mental health examiners who said her mood was OK today, or she was denying any suicidal ideation, or she was denying hallucinations at some times?

[00:04:39] Speaker 01:
Right.

[00:04:40] Speaker 01:
And that's correct, Your Honor.

[00:04:41] Speaker 01:
And it's important to note, yes, physical examinations, even the physical CE, which the ALJ said it wasn't even supported on the physical side,

[00:04:48] Speaker 01:
On the mental health exams, we have the ALJ cited Dr. Islem Zorz examination, which he found did on its own support her limitations of marked impairment.

[00:04:58] Speaker 01:
So it's unclear why you cited that one.

[00:05:01] Speaker 01:
And the other one cited were all telehealth appointments where she was doing within the confines of her own home.

[00:05:08] Speaker 01:
And even on those, for example, CAR 792, 794, the ALJ said, you know, this is

[00:05:15] Speaker 01:
normal, did show current suicidal ideation on occasional auditory visual hallucinations.

[00:05:22] Speaker 01:
Other appointments, she said she's not having any current suicidal ideations.

[00:05:25] Speaker 01:
She's not currently having hallucinations.

[00:05:27] Speaker 01:
Again, take her within her own home.

[00:05:30] Speaker 01:
And we see that, for example, CAR page 613 says, you know, due to the COVID pandemic, this is doing by tele-video from her own home.

[00:05:38] Speaker 01:
So again, most of the citations the judge gives,

[00:05:42] Speaker 00:
So your point is that since her main problem was leaving the house, that how she felt when she was in her house was really not the relevant criteria.

[00:05:51] Speaker 01:
Correct, Your Honor.

[00:05:51] Speaker 01:
And that's exactly the issue.

[00:05:54] Speaker 01:
So most of the citations the ALJ gives is to cog into functioning.

[00:05:58] Speaker 01:
Her attention, her concentration are doing well when she's in her own home or for a brief appointment.

[00:06:03] Speaker 01:
But that's not really the contention that Ms.

[00:06:06] Speaker 01:
Nielsen's stating that keeps her from competitive employment.

[00:06:11] Speaker 01:
We go through most of the citations, the records the ALJ provides are from that June 2019, November 2019, which DDS had were these physical findings where she has some things or wasn't currently suicidal.

[00:06:25] Speaker 01:
My briefing goes through many, many things in 2020, 2021 where she was having

[00:06:31] Speaker 01:
auditory hallucinations when anxiety got bad, but not all the time.

[00:06:36] Speaker 01:
I mean, she said three or four days a week she could not leave her house.

[00:06:39] Speaker 01:
Not every day.

[00:06:40] Speaker 01:
And when she did, it was only for short periods of time.

[00:06:43] Speaker 01:
What the ALJ never does is say why that is inconsistent.

[00:06:46] Speaker 01:
If she can do computer games on her phone, he cites to this, or go to church service, how that would equate to a 40-hour work week, particularly when her church service was

[00:06:56] Speaker 01:
for I think 30 to 60 minutes and she left half the times and hadn't been the last two and a half, three months.

[00:07:02] Speaker 01:
Just further support, even the ALJs, what he's found, how she functions out of the home really does support her claim of disability.

[00:07:12] Speaker 01:
The other things are really important.

[00:07:16] Speaker 01:
Dr. Harmon, that was not even addressed and this was not just a

[00:07:22] Speaker 01:
box check, Dr. Harmon said, Dr. Islam Zawart's opinion I agree with, she provided a narrative and she stated reasons that the ALJ specifically stated for reasons for rejecting Dr. Islam Zawart's opinion.

[00:07:32] Speaker 01:
She said that even with her care and her mental health treatment, her past history of substance abuse, she'd still not be able to function adequately in the workplace and that the marked level of limitations for attendance issues would still be supported.

[00:07:47] Speaker 01:
The ALJ

[00:07:48] Speaker 01:
did put in a limitation to no public contact.

[00:07:53] Speaker 01:
But again, at the very outset of the hearing, the very beginning, the alleged onset date was stated to be on the date where she had to quit her semi-truck driving job due to having suicidal thoughts.

[00:08:05] Speaker 01:
There is absolutely no public contact in a semi-truck driving position.

[00:08:11] Speaker 01:
And so it just shows that the ALJ's RFC does not adequately address

[00:08:19] Speaker 00:
Was Dr. Harmon a record review person or what was her role?

[00:08:26] Speaker 01:
Yes, she's hired to review the records.

[00:08:28] Speaker 01:
I see.

[00:08:29] Speaker 00:
Hired by the agency?

[00:08:32] Speaker 01:
She's hired by the state agency to review whether it would likely meet the social security criteria.

[00:08:39] Speaker 01:
The way the state agency, the state disability office works is that they will approve for

[00:08:46] Speaker 01:
age-blind disabled benefits while someone's awaiting their SSI claims, but they want to have a reviewer review whether it's likely to prevail in a social security claim.

[00:08:54] Speaker 01:
If it does, they'll prove it.

[00:08:55] Speaker 01:
If not, then they don't give the benefits.

[00:08:57] Speaker 01:
Dr. Harmon did feel that it would meet the test of social securities.

[00:09:06] Speaker 01:
I guess, criteria for disability.

[00:09:09] Speaker 01:
So that is a record review.

[00:09:10] Speaker 04:
Just to be clear, because I thought Dr. Harmon looked specifically at Nielsen.

[00:09:15] Speaker 04:
Oh, she did review the medical records and Dr. Islam Swartz report, right?

[00:09:21] Speaker 01:
Right.

[00:09:22] Speaker 01:
And she and like I said, she gave a basis for it.

[00:09:25] Speaker 01:
She wrote a narrative.

[00:09:26] Speaker 01:
She explained why this was a decision.

[00:09:29] Speaker 01:
It's important because the ALJ made a lay finding specifically on this issue.

[00:09:36] Speaker 01:
and did not see that there was a PhD who made the exact same funny contrary to his own.

[00:09:41] Speaker 02:
So if Dr. Harmon only did a record review, why was it so harmful that the ALJ did not independently consider her opinion because all she did was look at what was otherwise already in the record?

[00:10:02] Speaker 01:
Well, because it comes down to, the ALJ said there was no support for mark limitations in attendance.

[00:10:08] Speaker 01:
That's what he found, no support.

[00:10:10] Speaker 01:
When you have another PhD who reviewed the same thing and said, hey, there is support in the record.

[00:10:15] Speaker 01:
Dr. Islam's work, the judge said, hey, there's no support in the rest of the records for this.

[00:10:20] Speaker 04:
Dr. Islam isn't even what you're relying on.

[00:10:23] Speaker 04:
I thought it was Dr. Anderson.

[00:10:27] Speaker 01:
Well, they all are, Your Honor.

[00:10:28] Speaker 01:
They all found mark limitations

[00:10:30] Speaker 01:
marked to severe limitations in attendance issues.

[00:10:32] Speaker 01:
They're all consistent.

[00:10:33] Speaker 01:
I think that's the point.

[00:10:35] Speaker 01:
All of the people who saw her like this found marked limitations.

[00:10:39] Speaker 01:
Dr. Harmon reviewed that and also found the marked limitations in attendance issues.

[00:10:43] Speaker 00:
Well, any of the people who gave the imposing opinion, did any of them actually see her?

[00:10:52] Speaker 01:
No, that was DDS and they only had cited records from November of 2019.

[00:10:57] Speaker 00:
I'm sorry?

[00:10:57] Speaker 00:
They only had what?

[00:10:58] Speaker 01:
They were all reviewing sources and they only had records through November of 2019.

[00:11:02] Speaker 00:
And they were, but they were all just reviewers.

[00:11:06] Speaker 00:
Correct.

[00:11:07] Speaker 00:
And they, he did rely on those, but Dr. Harmon, who was also a reviewer, he ignored.

[00:11:13] Speaker 01:
Correct.

[00:11:14] Speaker 02:
Okay.

[00:11:14] Speaker 02:
And as to Bridget Anderson, you

[00:11:18] Speaker 02:
quoted one sentence, but then there was a second sentence.

[00:11:21] Speaker 02:
Let me read both sentences.

[00:11:23] Speaker 02:
I'm not sure this is fatal to you, but I just want to make sure that we're focused on this.

[00:11:26] Speaker 02:
Dr. Anderson writes, first, due to her mood symptoms, her tendency to isolate, her ability to maintain regular attendance in the workplace is markedly impaired.

[00:11:36] Speaker 02:
Then Dr. Anderson writes, her ability to complete a normal work week or work day without interruption from mood symptoms is likely

[00:11:43] Speaker 02:
moderately impaired.

[00:11:45] Speaker 02:
So the first sentence, markedly impaired.

[00:11:48] Speaker 02:
Second sentence, moderately impaired.

[00:11:50] Speaker 02:
Dr. Anderson, of course, is describing different things, but what are we to do with the moderately impaired in that second sentence?

[00:11:57] Speaker 01:
Well, it's supposed to good days, bad days.

[00:12:00] Speaker 01:
She's not going to show up on her bad days.

[00:12:02] Speaker 01:
That's what she stated.

[00:12:03] Speaker 01:
On the days where she's having better days, I mean, she did openly concede she can play games on her phone, goes to church sometimes.

[00:12:11] Speaker 01:
And so that I guess dropped to a moderate level as far as, you know, being able to maintain concentration and tension on her better days.

[00:12:19] Speaker 01:
Not every day is the same.

[00:12:21] Speaker 01:
And she never states that she cannot, you know, like watch TV all day on her good days within the confines of her home.

[00:12:28] Speaker 01:
That just is not what she stated.

[00:12:29] Speaker 01:
She wasn't special education.

[00:12:32] Speaker 02:
You're not really addressing my question.

[00:12:34] Speaker 02:
Both of those sentences by Dr. Anderson address not what she's doing at home, but rather whether she can go to work.

[00:12:41] Speaker 02:
In the first one, she says her regular attendance is markedly impaired

[00:12:48] Speaker 02:
Second one, complete a normal work day or work day without interruption, moderately impaired.

[00:12:54] Speaker 02:
So I'm going to take it that, well, if we're looking at more than a normal work week or work day, which is the second sentence, moderately impaired, then if we're maybe looking at a longer period we're talking about, markedly impaired, I'm trying to figure out what Dr. Anderson's telling us and then how do we fit it into what constitutes a disability.

[00:13:14] Speaker 01:
So we would say that the attendance is being able to show up regularly each day.

[00:13:20] Speaker 01:
Complete normal workday, workweek is once you show up and you're there, are you able to stay throughout your shift?

[00:13:25] Speaker 01:
Are you able to maintain attention while you are there at the workplace?

[00:13:28] Speaker 00:
Her problem is getting out of the house.

[00:13:31] Speaker 00:
Right.

[00:13:32] Speaker 00:
So if she gets out of the house and she gets there, she'll stay, maybe, moderately.

[00:13:37] Speaker 01:
Moderately, yeah.

[00:13:39] Speaker 01:
Not markedly on those days.

[00:13:40] Speaker 04:
Okay.

[00:13:42] Speaker 04:
Okay, we'll give you a couple minutes for a bottle.

[00:13:45] Speaker 01:
Thank you.

[00:13:57] Speaker 03:
Good morning again, your honors, Joseph line camera on behalf of the commissioner.

[00:13:59] Speaker 03:
I felt like I just did this.

[00:14:03] Speaker 03:
There's no question that Ms.

[00:14:06] Speaker 03:
Nelson does have psychological impairments that she's limited.

[00:14:10] Speaker 03:
You know, the ALJ included a lot of limitations in this residual functional capacity, limited her to simple routine tasks, occasional and simple changes, no fast-paced tasks, no public interaction at all, occasional superficial interaction with coworkers.

[00:14:25] Speaker 00:
And her contention that she has real problems leaving her house.

[00:14:29] Speaker 03:
Right.

[00:14:30] Speaker 00:
Right.

[00:14:31] Speaker 00:
Does he deal with that?

[00:14:32] Speaker 00:
I don't even think he mentions it.

[00:14:33] Speaker 03:
Oh, he does.

[00:14:35] Speaker 03:
The LJ talks about her allegations starting on page 22 of the LJ's decision.

[00:14:45] Speaker 03:
The LJ is talking about

[00:14:48] Speaker 03:
her testimony on that first full paragraph.

[00:14:49] Speaker 03:
And near the end, the LJ says, is talking about the- There's no page 22 of the administrative laws.

[00:14:56] Speaker 04:
I thought it was a 17-page opinion.

[00:14:58] Speaker 00:
Yeah, it's a 17-page- Oh, I'm sorry.

[00:14:59] Speaker 03:
It says page 7 of 17 at the top.

[00:15:02] Speaker 03:
I'm talking about the baits stamped at the bottom, the 22.

[00:15:04] Speaker 03:
Wait.

[00:15:05] Speaker 04:
Help me.

[00:15:08] Speaker 04:
That's not helping me.

[00:15:09] Speaker 03:
OK.

[00:15:10] Speaker 04:
So- In the record, what page of the opinion is this?

[00:15:14] Speaker 03:
Page 7.

[00:15:15] Speaker 04:
Page 7 of 17.

[00:15:17] Speaker 03:
Exactly.

[00:15:21] Speaker 04:
Okay, go ahead.

[00:15:22] Speaker 03:
Okay.

[00:15:23] Speaker 03:
So at the bottom of that first full paragraph, the LJ is talking about her testimony about the difficulties that she has leaving the home, you know, that she's engaging in this really dramatic behavior every time she leaves the house.

[00:15:36] Speaker 03:
She testified that she leaves the house only twice a week.

[00:15:38] Speaker 03:
So the LJ is acknowledging that.

[00:15:41] Speaker 00:
Repeating what she said, that he never deals with it.

[00:15:44] Speaker 00:
Well, I... Leaving it or not believing it or why he doesn't believe it or anything about it.

[00:15:48] Speaker 03:
So I would disagree with that, Your Honor.

[00:15:51] Speaker 03:
And if you look at that next paragraph, this is the LJ's segue into

[00:15:57] Speaker 03:
analyzing these subjective complaints.

[00:16:00] Speaker 03:
And what follows is a very lengthy analysis of the medical records, first with respect to her allegations about knee pain, and then following that on page 25.

[00:16:11] Speaker 04:
Just to summarize that, is basically saying, look, I agree with this assessment, but I think she's exaggerating.

[00:16:21] Speaker 03:
I wouldn't say that the LJ is finding that she's necessarily exaggerating, but her subjective complaints are not comporting with what the medical records are showing.

[00:16:32] Speaker 04:
The claimant statements concerning the intensity, persistence, and limiting effects of these symptoms are not

[00:16:38] Speaker 04:
entirely consistent with the medical evidence.

[00:16:41] Speaker 03:
Exactly.

[00:16:43] Speaker 00:
The medical evidence is two people, is this correct, two doctors who reviewed the record in 2019 and then the rest of the people who did support her testimony.

[00:17:01] Speaker 00:
I mean, is that what we have?

[00:17:03] Speaker 00:
Do we have any examining or treating or anybody from after 2019, any medical person who says that this isn't so?

[00:17:13] Speaker 03:
Well, we certainly have the opinions of the sources that Your Honor identified, but we also have all of the hundreds of pages of- 2019, and they were only reviewing records.

[00:17:22] Speaker 03:
Correct.

[00:17:22] Speaker 03:
We have those findings.

[00:17:24] Speaker 03:
But we also have hundreds of pages of medical records that the ALJ looked through.

[00:17:27] Speaker 03:
And that's what this is.

[00:17:29] Speaker 00:
But those medical records were primarily not mental health practitioners.

[00:17:36] Speaker 03:
I disagree with that characterization.

[00:17:38] Speaker 03:
I know that that's an argument that the claimant has made.

[00:17:41] Speaker 04:
But which ones were?

[00:17:44] Speaker 04:
Because I wasn't seeing a lot that were mental health.

[00:17:47] Speaker 04:
But there were statements in there

[00:17:51] Speaker 04:
that went to mental health, that she self-reported, saying that I don't have any suicidal tendencies and things like that.

[00:17:58] Speaker 03:
That is correct.

[00:17:59] Speaker 03:
There also are mental health treatment records.

[00:18:02] Speaker 03:
My colleague mentioned them today.

[00:18:04] Speaker 04:
Those are referenced in the?

[00:18:06] Speaker 03:
Sure.

[00:18:08] Speaker 03:
In the decision or in our brief?

[00:18:10] Speaker 03:
Yeah, in the decision.

[00:18:11] Speaker 04:
OK.

[00:18:12] Speaker 04:
Sure.

[00:18:12] Speaker 04:
If you look at, I think it's page 14, is kind of the main string site.

[00:18:18] Speaker 04:
It's just hard to see unless you walk through all of it.

[00:18:21] Speaker 04:
It doesn't really say.

[00:18:23] Speaker 04:
All it says is exhibits.

[00:18:26] Speaker 03:
Sure.

[00:18:27] Speaker 04:
Any of these exhibits that are mental health examples?

[00:18:29] Speaker 03:
Yes.

[00:18:29] Speaker 03:
I mean, if we actually go a little bit earlier, Judge Nelson, to page 10 of 17, this is where the LJ starts talking about the psychological evidence at the top of the page there.

[00:18:42] Speaker 03:
The LJ's pointed out how she has a consultative psychological evaluation there.

[00:18:46] Speaker 03:
And look at what the LJ is pointing out that, yes, she's making these complaints.

[00:18:51] Speaker 03:
You know, there's findings about being cooperative.

[00:18:54] Speaker 03:
She's making fair eye contact.

[00:18:56] Speaker 03:
She's denying hallucinations.

[00:18:58] Speaker 03:
You know, we move on to April 2021, where here's the LG talking about how she had a psychotherapy video visit.

[00:19:03] Speaker 04:
So exhibit five.

[00:19:06] Speaker 03:
Yes, the consultative psychological evaluation is exhibit 5F.

[00:19:13] Speaker 04:
Exhibit 13F is the May 2020.

[00:19:17] Speaker 04:
Is that also a psych?

[00:19:19] Speaker 04:
I guess that must be a psychological.

[00:19:20] Speaker 03:
I believe it is.

[00:19:21] Speaker 03:
I would have to pull up the record for that.

[00:19:22] Speaker 03:
But it does indicate that she took a mental health examination and no depression.

[00:19:28] Speaker 03:
And that's at page 156 of 13F.

[00:19:30] Speaker 03:
So I think to your honor's point,

[00:19:33] Speaker 03:
And when talking about these non-examining doctors from the state agency, let me get there, Dr. Haney and Dr. Forsyth, it's true that those doctors only reviewed records up through 2019, but it's true that those doctors only reviewed records up through 2019, but it's true that those doctors only reviewed records up through 2019.

[00:19:55] Speaker 03:
Frankly, that's just part of how the administrative process works.

[00:19:58] Speaker 03:
We have these state agency doctors who look at these claims in the initial and reconsideration phases.

[00:20:04] Speaker 00:
But when the agencies center to, for evaluations, to those people all said otherwise.

[00:20:13] Speaker 03:
Well, the agents, and just so I can make a correction here.

[00:20:16] Speaker 00:
Wasn't Anderson one of those people?

[00:20:18] Speaker 03:
Anderson was one of those people, was a consultative examiner.

[00:20:22] Speaker 03:
Harmon was not.

[00:20:23] Speaker 03:
I wanted to make a correction there.

[00:20:24] Speaker 03:
I believe that was an incorrect statement.

[00:20:29] Speaker 03:
Harmon actually is a contractor for the Washington Department of Social and Health Services.

[00:20:36] Speaker 03:
That's a different agency.

[00:20:37] Speaker 00:
That's not associated with social security.

[00:20:41] Speaker 03:
But Dr. Harmon reviewed only another DSHS opinion, this Dr. Islam Zwart.

[00:20:48] Speaker 03:
and essentially rubber-stamped.

[00:20:50] Speaker 03:
If you compare the check boxes.

[00:20:51] Speaker 04:
Something additional that's added.

[00:20:53] Speaker 03:
That's correct.

[00:20:54] Speaker 04:
Meaning he rises or falls with what we view of Islam.

[00:20:57] Speaker 03:
That's correct.

[00:20:58] Speaker 00:
So the ultimate question is, what is the support for the statement that there was no medical evidence supporting Dr. Anderson's conclusion that she was markedly impaired in tendons?

[00:21:11] Speaker 03:
Well, the evidence is that Dr. Anderson

[00:21:16] Speaker 03:
Dr. Anstern did not cite any clinical evidence for it.

[00:21:21] Speaker 00:
And Judge Fletcher, you were making this- So ultimately, isn't the problem here that when she says, I don't leave my house, I can't leave my house, there's no way for anybody to observe that.

[00:21:31] Speaker 00:
How would anybody observe it?

[00:21:33] Speaker 03:
Well, I mean, that's a fair point, Your Honor.

[00:21:35] Speaker 03:
I mean, there's not necessarily somebody there, you know, every time she's experiencing this, but so you have to ask yourself, what does the LJ do with an allegation like that?

[00:21:44] Speaker 03:
What does the LJ do?

[00:21:45] Speaker 03:
The LJ has to look at the medical records.

[00:21:47] Speaker 03:
The LJ has to look at the claimants' activity levels, things like that.

[00:21:51] Speaker 00:
to glean to test essentially the reliability of the she agrees that if she's in her house she can do things well she has terrible panic attacks and she can't leave her house and she and so on and at least some of these mental health people seem to believe her but i don't know how you'd ever prove it up

[00:22:13] Speaker 03:
Well, I think it's telling to actually look at what her subjective complaints were, because they were pretty extreme.

[00:22:18] Speaker 00:
That's not subjective.

[00:22:19] Speaker 00:
That's objective, actually.

[00:22:21] Speaker 00:
Is she leaving her house or not?

[00:22:22] Speaker 00:
But nobody knows.

[00:22:23] Speaker 03:
Well, it's her making these statements.

[00:22:26] Speaker 03:
Again, as your honor points out, there's not really maybe an objective way to measure that.

[00:22:30] Speaker 03:
It's just, is she leaving or not?

[00:22:32] Speaker 03:
But she's saying she can't leave because of, she said she has panic attacks if she even got near her front door and that she has suicidal thoughts no matter where she was.

[00:22:43] Speaker 03:
So that would include in her house too.

[00:22:45] Speaker 03:
What does the ALJ have to look at?

[00:22:47] Speaker 03:
What did the medical records show?

[00:22:49] Speaker 03:
And they showed whether or not she's at appointments, because there actually were

[00:22:53] Speaker 03:
And we see how she is behaving even in her house where she's claiming that she has even in her

[00:23:10] Speaker 04:
And then she's reporting that she's not and they're seeing and they're seeing things like good judgment good mood good insight page 14 is that what because that is the confusion here is that the ALJ says I find this opinion talking about Anderson generally persuasive except there is no supporting evidence of a marked rating for attendance issues and

[00:23:34] Speaker 04:
I think that's what we're getting caught up on is when it says no supporting evidence, is he saying that Anderson doesn't provide supporting evidence or is the ALJ saying there's no supporting evidence at all in the record?

[00:23:47] Speaker 03:
I think the LJ is certainly talking about Dr. Anderson's opinion there, because if you look at what Dr. Anderson says on page 452 of the administrative record, that's again at the bottom right-hand corner, and Judge Fletcher, you were discussing this, there is this statement about, you know, due to her mood symptoms, her tendency to isolate, her ability to maintain regular attendance is markedly impaired.

[00:24:12] Speaker 03:
Well, where did Dr. Anderson get

[00:24:15] Speaker 03:
the allegation about her tendency to isolate.

[00:24:18] Speaker 03:
Well, right up at the top of this page, Dr. Anderson says claimant reports that she is extremely self-isolating.

[00:24:25] Speaker 03:
So under Social Security's regulations, when you're evaluating medical opinions, you're looking at two primary things.

[00:24:32] Speaker 03:
Number one, does the opinion contain objective medical support and explanation?

[00:24:37] Speaker 03:
And number two, is it consistent with the overall record?

[00:24:40] Speaker 03:
And that first prong, the supportability, well, what is Dr. Anderson citing as a basis for these attendance problems?

[00:24:49] Speaker 03:
Well, you know, really the only thing we can see here is just the claimant's own complaints.

[00:24:52] Speaker 03:
And that's not corroborated as we talked about earlier.

[00:24:55] Speaker 03:
That's really, those extreme complaints aren't necessarily corroborated by all of these medical records that are showing intact mental functioning.

[00:25:02] Speaker 03:
And Judge Fletcher, you're right.

[00:25:03] Speaker 03:
She does say, Dr. Anderson then does go on to say,

[00:25:06] Speaker 03:
that her ability to complete a normal work week or workday without interruption from mood symptoms is likely moderately impaired and earlier

[00:25:16] Speaker 03:
in that functional assessment on the prior page.

[00:25:18] Speaker 03:
Dr. Anderson also says the claimant appears to have a clear ability to reason and understand, only mild impairments in sustained concentration.

[00:25:27] Speaker 03:
The ALJ actually did not reject this opinion outright.

[00:25:30] Speaker 03:
If you look at what the ALJ did with Dr. Anderson's opinion on page 14 of 17 at the top,

[00:25:37] Speaker 02:
gave it gave most of it persuasive value credit except to the point that's relevant to the disability well credits that I think to the to I mean that's true I mean to the I mean because I do agree that the markedly it is to say the ALJ credits everything except the critical sentences here

[00:25:56] Speaker 03:
Well, the critical sentence, though, did not have support.

[00:25:59] Speaker 03:
And that's the point that the ALJ is making with respect to you.

[00:26:02] Speaker 02:
Well, it does have support in the sense that that's what the claimant reported to Dr. Anderson.

[00:26:07] Speaker 02:
So that's clearly support.

[00:26:08] Speaker 03:
That's right.

[00:26:09] Speaker 03:
But there was no objective support.

[00:26:12] Speaker 03:
And if we steer it back to what the ALJ said earlier about all of these medical records and her intact functioning.

[00:26:17] Speaker 04:
The problem is, I think the problem is how the ALJ wrote this.

[00:26:21] Speaker 04:
Because the ALJ says there's no support for the attendance issues.

[00:26:25] Speaker 04:
But then if you go through the rest of that paragraph, a lot of it doesn't really relate to attendance issues.

[00:26:32] Speaker 04:
So there is some inconsistency here.

[00:26:35] Speaker 04:
And I guess the question is, is it enough that this needs to be re-reviewed or not?

[00:26:41] Speaker 03:
And I would submit the answer is no.

[00:26:43] Speaker 03:
I mean, we have to ask ourselves, well, what would be the basis for her allegations about the attendance issues?

[00:26:51] Speaker 03:
She's describing severe anxiety, hallucinations, suicidal thoughts.

[00:26:57] Speaker 03:
It's these medical symptoms that she's describing that are resulting in what she's claiming and what this doctor has basically repeated would be the problem with her attending work.

[00:27:10] Speaker 03:
And when we go to the core of those medical impairments, when we look at the medical records, which we've

[00:27:15] Speaker 03:
you know, cited in our briefing, they are fairly consistent, whether or not it's at telehealth or whether or not it's in person, that she is, you know, able to function, you know, relatively well, she's having a normal mood, concentration, all things that we, you know, we're seeing, you know, that are undermining this

[00:27:37] Speaker 03:
this argument that she would be unable to attend work.

[00:27:41] Speaker 03:
Okay.

[00:27:41] Speaker 03:
And I do see that I'm over my time.

[00:27:42] Speaker 03:
So I will ask the court questions.

[00:27:46] Speaker 04:
Okay.

[00:27:46] Speaker 04:
We'll give, we'll give a couple of minutes for rebuttal.

[00:27:49] Speaker 01:
Thank you.

[00:27:50] Speaker 01:
Your honor.

[00:27:51] Speaker 01:
So this has already been addressed by this court in Buckabee very well.

[00:27:54] Speaker 01:
Psychiatry is different than physical complaints.

[00:27:56] Speaker 01:
You can't observe all the clinical signs.

[00:27:59] Speaker 01:
If that were so nightmares

[00:28:01] Speaker 01:
You could just completely ignore from the social security system.

[00:28:04] Speaker 01:
Nobody observes somebody sleeping and waking up with nightmares.

[00:28:07] Speaker 01:
You can't do it.

[00:28:08] Speaker 01:
And when she says she has anxiety attacks, it's when she's attempting to leave the home, which is actually what is the social security listings for mental health talks about anxiety panic attacks is when you have the preemptive anxiety of having to leave the home.

[00:28:20] Speaker 01:
If she's having a telehealth visit, she's not having to leave the home.

[00:28:24] Speaker 01:
And we'll also look at the stream citations in my briefing.

[00:28:27] Speaker 01:
There are more citations to abnormal mental status examinations than the ALJ provided.

[00:28:32] Speaker 01:
For example, the Commissioner keeps bringing up the ALJ's reference to April 9th, 2021, the normal mental status examination.

[00:28:40] Speaker 01:
April 14th is an abnormal mental status examination still within the home.

[00:28:44] Speaker 01:
That's just five days later.

[00:28:45] Speaker 01:
And like I said, there's more abnormal mental status examinations than there are normal.

[00:28:50] Speaker 01:
Probably the only thing that's not true for that is cognitive functioning, but that's not the basis of her disability is attention being oriented to person place thing.

[00:29:00] Speaker 04:
So when we look at this page, I mean, at page 11, this May 2021 psychological evaluation, it

[00:29:12] Speaker 04:
It reports back everything herself reporting problems.

[00:29:18] Speaker 04:
But then it said, when examined, her thought process and content were within normal limits, as was her orientation.

[00:29:25] Speaker 04:
There was some indication of cognitive difficulty.

[00:29:27] Speaker 04:
I understand that doesn't address it.

[00:29:28] Speaker 04:
But then it says, her mental status and fund of information were within normal limits.

[00:29:34] Speaker 04:
She was diagnosed.

[00:29:35] Speaker 04:
I mean, why doesn't that sort of address?

[00:29:38] Speaker 04:
I mean, that is a mental examiner.

[00:29:42] Speaker 04:
who said that her mental status and fund of information were within normal limits.

[00:29:47] Speaker 01:
She put recent suicidal ideation, not current suicidal ideation.

[00:29:53] Speaker 00:
That sounds like a cognitive assessment, because everything before and after is a cognitive assessment.

[00:29:59] Speaker 00:
It doesn't have any indication of it being a mental health assessment.

[00:30:06] Speaker 04:
Well, this is a psychological evaluation.

[00:30:08] Speaker 00:
Yeah, but it's about

[00:30:10] Speaker 00:
everything she's talking about is about cognitive issues.

[00:30:15] Speaker 02:
You know, I should know this, but I don't.

[00:30:19] Speaker 02:
For that paragraph we're talking about, who is evaluating her?

[00:30:22] Speaker 02:
The ALGA doesn't tell us.

[00:30:26] Speaker 02:
Who is this?

[00:30:26] Speaker 02:
Who's making this evaluation?

[00:30:27] Speaker 04:
In May of 2021, do you know who she saw?

[00:30:30] Speaker 01:
Oh, I believe that as well, but I'd have to look at that actually.

[00:30:35] Speaker 02:
It's exhibit 11F, but I didn't go back and look.

[00:30:41] Speaker 02:
Okay, so you don't know what, as you sit here, you don't know.

[00:30:45] Speaker 01:
Okay.

[00:30:49] Speaker 01:
Yeah, so I mean, that is entirely the waxing and waning is probably the most common error we see for judges in the value mental health as we see here.

[00:30:58] Speaker 01:
But again,

[00:30:59] Speaker 01:
When she comes through these telehealth visits, she's recounting what's happened the last two weeks before and doing these things.

[00:31:05] Speaker 01:
And she's already testified that she's having a really bad day.

[00:31:08] Speaker 01:
Her fiance reschedules her appointments for her.

[00:31:11] Speaker 01:
So we're not expecting her to have auditory and active visual hallucinations during these visits.

[00:31:18] Speaker 01:
But she is noted to have anxiety and be sad and poor mood on numerous mental status examinations.

[00:31:25] Speaker 01:
And like I said, the briefing has more of those than it does

[00:31:28] Speaker 01:
the other way down.

[00:31:30] Speaker 01:
I did look, and your honor, it was Josephine Phillips at that time who was a nurse practitioner for medication management on that one.

[00:31:39] Speaker 02:
I'm sorry.

[00:31:39] Speaker 01:
Take a note, May 21.

[00:31:41] Speaker 02:
Say that again, Sid.

[00:31:42] Speaker 01:
It was the nurse practitioner who prescribes medications.

[00:31:48] Speaker 04:
Well, is a nurse practitioner, that seems, okay, we'll take a look at that, because the nurse practitioner can do a psychological evaluation?

[00:32:00] Speaker 01:
They're allowed to, yeah.

[00:32:02] Speaker 00:
Was the May 2021 person the nurse practitioner?

[00:32:06] Speaker 01:
I think that's what you were saying.

[00:32:08] Speaker 01:
Well, the May 12th one there, I mean, they go back and forth and that's who she sees, the medication management and then her... We'll take, I mean, the real question is Exhibit 11F and we can pull that up, so.

[00:32:21] Speaker 04:
All right, I think you've helped get us into the record of this

[00:32:28] Speaker 04:
a deep case and we appreciate both counsel's efforts in helping us understand it better and the case is now submitted.

[00:32:36] Speaker 04:
We're going to take a brief recess and then we'll be back to hear argument in the final two cases.