[00:00:00] Speaker 04:
And argument set for this morning, Roe versus O'Malley, case number 23-35590.

[00:00:50] Speaker 01:
Good morning, Your Honors.

[00:00:51] Speaker 01:
I'm Jeffrey Baird, representing Sarah Rowe.

[00:00:55] Speaker 01:
This is a low back pain case.

[00:00:57] Speaker 01:
The most important evidence during the period at issue is beginning in January of 2022, where imaging showed a disc herniation at L5S1 and crowding of the recesses, which is the area around the spinal cord.

[00:01:14] Speaker 01:
That's not bone on nerve contact, but it is a form of contact.

[00:01:19] Speaker 01:
The measurements of the lumbar range of motion on February 1st of that year were severe in every plane.

[00:01:29] Speaker 01:
And most importantly, the tug test, which is timed up and go.

[00:01:35] Speaker 01:
That's where the patient sits and rises.

[00:01:38] Speaker 04:
I don't want to short-chain.

[00:01:39] Speaker 04:
I mean, this is all helpful.

[00:01:41] Speaker 04:
What I would like to focus on is I understand it.

[00:01:45] Speaker 04:
Correct me if I'm wrong.

[00:01:46] Speaker 04:
The real issue in this case is we have an expert opinion that came in.

[00:01:51] Speaker 04:
And the question is whether that expert opinion

[00:01:55] Speaker 04:
goes in, clearly there was some regression at some point.

[00:02:00] Speaker 04:
And the question is, did that regression include the time period that was at issue here?

[00:02:05] Speaker 04:
Because there wasn't an indication in the expert report that that was.

[00:02:09] Speaker 01:
Well, there is.

[00:02:10] Speaker 01:
He did take a history.

[00:02:11] Speaker 01:
So that was going back to the period at issue.

[00:02:16] Speaker 00:
But he didn't look at any medical records from before.

[00:02:18] Speaker 00:
There was no indication he did.

[00:02:19] Speaker 01:
Pardon me?

[00:02:20] Speaker 00:
There's no indication he looked at any medical records from earlier.

[00:02:24] Speaker 01:
Okay, but he matched them, right?

[00:02:26] Speaker 01:
The lumbar range of motion and the... That means he matched them.

[00:02:30] Speaker 01:
He made similar findings, which would be even more impressive if he hadn't looked at the other ones.

[00:02:35] Speaker 00:
I mean, your argument has to be that he made more specific and more consistent with disability findings because you're relying almost entirely on that.

[00:02:48] Speaker 01:
um and his findings so no it can't be that they're the same it has to be that they're they're more more helpful to her than the others but it's more detailed but the range of motion and the lumbar area were severe in every domain the alj never said that he said that lumber range of motion is fine so she's a lot worse in january 2022 and that's when dr halzer becomes her

[00:03:13] Speaker 01:
primary care physician, and Dr. Halzer also signed off on the FCE, the functional capacity evaluation.

[00:03:20] Speaker 00:
Are you walking away from the Dr. Miller argument now?

[00:03:23] Speaker 01:
No, I'm dealing with a Dr. Miller argument showing Dr. Miller made similar findings to those that were made in January and February of 2022.

[00:03:33] Speaker 02:
But Dr. Miller says considerable limitations due to rapid increase in... And he's now after the other reports and after the period.

[00:03:44] Speaker 02:
So what do you do with that language about rapid increase?

[00:03:46] Speaker 01:
Rapid increase was referring to duration.

[00:03:49] Speaker 01:
That is, as she was sitting, it got a lot worse.

[00:03:52] Speaker 01:
As she was standing, any static position, it got a lot worse.

[00:03:56] Speaker 01:
But his findings aren't dramatically worse.

[00:03:58] Speaker 01:
They aren't dramatically worse than Dr. Halzor's.

[00:04:02] Speaker 00:
To be specific, can you prevail without Dr. Miller?

[00:04:07] Speaker 01:
I would prevail with the FCEES.

[00:04:10] Speaker 01:
Or under sentence six, it could be remanded because it has a reasonable possibility, right?

[00:04:15] Speaker 00:
What's sentence six?

[00:04:16] Speaker 01:
Pardon me?

[00:04:17] Speaker 00:
Tell me what sentence six is.

[00:04:18] Speaker 00:
This is all very inside-based.

[00:04:20] Speaker 01:
Oh, yeah.

[00:04:20] Speaker 01:
Well, sentence six of 405G permits this court to remand to the district court to put the case back under its same number.

[00:04:28] Speaker 01:
and then sent it back to the ALJ, who does additional work, additional development, analyzes the FCE, for example, and then sends it back to the lower court.

[00:04:39] Speaker 01:
And the lower court makes a decision.

[00:04:41] Speaker 01:
So that's sentence six.

[00:04:43] Speaker 01:
I don't get each of these.

[00:04:44] Speaker 01:
But my client gets another chance.

[00:04:46] Speaker 04:
So we'd asked you to talk, and you did some supplemental briefing on the administrative record point.

[00:04:54] Speaker 04:
And there does seem to be some confusion on when something's in the administrative record or not.

[00:05:01] Speaker 04:
I take it your position is Dr. Miller's report is a part of the administrative record.

[00:05:07] Speaker 01:
Right.

[00:05:08] Speaker 01:
If you noticed the lower courts, Washington and Oregon do it differently.

[00:05:11] Speaker 01:
In Washington, it's treated as sentence for evidence.

[00:05:15] Speaker 01:
It's part of the record under review.

[00:05:17] Speaker 01:
And that would match the regulations.

[00:05:19] Speaker 01:
Remember, Bruce wasn't decided on Judge Posner's policy arguments.

[00:05:23] Speaker 01:
It was purely regulatory.

[00:05:25] Speaker 01:
And that's true here as well.

[00:05:26] Speaker 01:
The regulation has been changed for new evidence, but it includes a good cause requirement

[00:05:35] Speaker 01:
You have to present it to a prior proceeding, which under BRUCE includes presenting it to the appeals council.

[00:05:40] Speaker 01:
That's part of the prior proceeding.

[00:05:41] Speaker 04:
Well, there's no question that it was submitted.

[00:05:44] Speaker 04:
I think the question is whether it was considered by.

[00:05:47] Speaker 04:
And what the appeals council here said is, look, I mean, I'm sort of confused because I would think that your argument might be the

[00:05:59] Speaker 04:
It wasn't part of the administrative record, and that's the error because it should have been part of the administrative record because it did encompass the time period.

[00:06:07] Speaker 04:
But they didn't consider it because they said it didn't cover the time period.

[00:06:11] Speaker 04:
So if they didn't consider it, then how is it part of the administrative record?

[00:06:16] Speaker 01:
well that was my tricky argument i showed how administrative regularity follows these cases all from the statute all the way down to the immediate action of the lower court the appeals council had to follow its regulation and that has been changed so now the evidence goes in the record

[00:06:36] Speaker 01:
even if it's not exhibited, and the appeals council must evaluate and determine if it belongs to be an exhibit.

[00:06:44] Speaker 04:
Right.

[00:06:45] Speaker 04:
And they did that.

[00:06:46] Speaker 01:
No.

[00:06:47] Speaker 04:
Well, I think they did that in the sense that they reviewed additional evidence.

[00:06:54] Speaker 04:
They admitted three of those exhibits.

[00:06:56] Speaker 04:
They did not admit Dr. Miller's report.

[00:06:59] Speaker 04:
So I just don't understand why that wouldn't be an indication enough that this is not part of the

[00:07:05] Speaker 01:
Because they had to go through the process articulated in the regulation to evaluate and determine if it belonged in the record.

[00:07:13] Speaker 01:
That's precisely what happened in Bruce.

[00:07:14] Speaker 04:
But then your point is, under that theory, everything's part of the administrative record as soon as it's submitted.

[00:07:20] Speaker 01:
Right.

[00:07:21] Speaker 01:
They could send it back.

[00:07:22] Speaker 04:
I don't think that's what the case law says.

[00:07:23] Speaker 01:
That's certainly not what... Well, it used to be.

[00:07:25] Speaker 01:
Maybe under the new regulations, they just submit everything to the record.

[00:07:30] Speaker 01:
But the final certified record can't contain extraneous documents that the court's not allowed to review.

[00:07:39] Speaker 00:
But more than that, if, for example, let's say that Dr. Miller's

[00:07:46] Speaker 00:
report had said, I've reviewed all of the medical records and I certify that what I'm finding now was also true at that time.

[00:07:57] Speaker 00:
I suppose you're specific about it.

[00:08:00] Speaker 00:
He did not do that.

[00:08:01] Speaker 00:
I'm sorry, what?

[00:08:01] Speaker 01:
He did not do that.

[00:08:02] Speaker 00:
I know he did not do that.

[00:08:04] Speaker 00:
I'm saying suppose he had.

[00:08:06] Speaker 00:
And suppose the appeals council had said he didn't

[00:08:14] Speaker 00:
it wasn't relevant to the relevant period, then would we have no authority to say, well, wait a minute, obviously it is, unless it's in the administrative record.

[00:08:25] Speaker 00:
Under Bruce, it would be part because... So there would have to be some way that we could look at the material, which is physically in the certified administrative record, and say what the appeals council said about it isn't true.

[00:08:41] Speaker 01:
Right.

[00:08:42] Speaker 01:
We know the appeals council had to evaluate and determine if it belonged.

[00:08:47] Speaker 01:
That would be the same process as consideration under Bruce.

[00:08:51] Speaker 01:
Remember in Bruce, the appeals council didn't exhibit it.

[00:08:54] Speaker 01:
They rejected it.

[00:08:56] Speaker 00:
And Taylor was essentially exactly the case I'm describing.

[00:09:00] Speaker 01:
Well, was Taylor brought in under sentence six?

[00:09:03] Speaker 01:
I can't remember.

[00:09:04] Speaker 00:
That part I don't know.

[00:09:06] Speaker 00:
What I do know is that the agency had said that it didn't relate to the right period, and they said it did.

[00:09:13] Speaker 01:
Right.

[00:09:14] Speaker 01:
So just to be like Taylor, then, in that sense.

[00:09:16] Speaker 01:
Well, it's like Bruce.

[00:09:18] Speaker 00:
It was completed after the period at issue, but has findings relevant to the period at issue, because they match the findings in- So ultimately, the real question here is, does Miller's opinion substantively reach that standard or not?

[00:09:37] Speaker 00:
I.e., does it relate to or doesn't it relate to?

[00:09:39] Speaker 00:
Or was the agency

[00:09:41] Speaker 00:
Do we refer to the agency in concluding that it didn't relate to him?

[00:09:47] Speaker 01:
Well, the findings that he made, for example, on the tug test, which I found useful, that's timed up and go.

[00:09:54] Speaker 01:
You start sitting, then you rise, then you walk a few steps, turn, and then go back.

[00:10:00] Speaker 01:
In February 1st, 2022, she could not do it.

[00:10:04] Speaker 01:
And in Dr. Miller's assessment, she could, but it took her 26.7 seconds, which she said indicated a severe risk of falling and was much slower than normal, which would be under 10 seconds.

[00:10:18] Speaker 01:
So she has trouble with static positions and she has trouble changing static positions.

[00:10:24] Speaker 01:
That is in both the February 1st findings and in the September 12th findings.

[00:10:32] Speaker 01:
And again, Dr. Halzor was the primary treating physician.

[00:10:36] Speaker 01:
She knew all these records.

[00:10:38] Speaker 01:
She referred all the imaging for the recess crowding in L5S1.

[00:10:45] Speaker 01:
But also, she certified and said, I cannot say this meets a disability standard.

[00:10:51] Speaker 01:
That's not my role.

[00:10:52] Speaker 01:
However, I do agree with the functional capacity assessment.

[00:10:56] Speaker 01:
And the most important finding was she can do lifting 10 pounds, a little standing, a little walking, but she can't last eight hours a day.

[00:11:05] Speaker 00:
Moreover, the specific findings of the FCE were, she's going to have to do... But in terms of your brief, I don't see anything... It doesn't seem to me that in terms of the arguments you're making, we could reach any conclusion without Dr. Miller.

[00:11:21] Speaker 01:
Oh no, you need Dr. Miller.

[00:11:23] Speaker 04:
Thank you for clarifying because I thought earlier in response to Judge Berzon's question a few minutes ago you said you could win without Dr. Berzon.

[00:11:32] Speaker 01:
No, I could win it under sentence six and maybe I should just talk to that for a minute.

[00:11:37] Speaker 01:
My opponent didn't respond.

[00:11:38] Speaker 04:
Actually, why don't we give you some time?

[00:11:40] Speaker 01:
Okay, can I have two minutes to rebut?

[00:11:43] Speaker 04:
One minute?

[00:11:44] Speaker 04:
We'll at least give you a minute.

[00:11:46] Speaker 04:
We'll probably give you two.

[00:11:47] Speaker 04:
Okay, thank you.

[00:12:01] Speaker 03:
Good morning your honors Joseph line camera on behalf of the Commissioner I want to start judge Nelson with your sort of threshold question about whether or not this opinion is part of the record my colleague mr. Barron I agree on that it is part of the record and and Yeah, and I I noticed that I mean you didn't you didn't make much of a you know

[00:12:23] Speaker 04:
position in the supplemental briefing on this other than just say it It's not intuitive to me though that that it is because I think can and there is confusion on this issue And you would agree with that right?

[00:12:34] Speaker 04:
Yes confusion on the administrative record point So two questions is I mean go ahead and explain why you think it is it is in the administrative record, but also

[00:12:44] Speaker 04:
Doesn't matter because at the end of the day if we thought that they just got it wrong and Miller's report Actually, if we looked at Miller's report.

[00:12:54] Speaker 04:
Well, if it's not in the administrative record, could we even look at Miller's report?

[00:12:58] Speaker 03:
No.

[00:12:59] Speaker 03:
Well, if it's not in the administrative record, then... But it is physically in the administrative record.

[00:13:04] Speaker 03:
Exactly.

[00:13:04] Speaker 03:
So I think if I can sort of explain and then hopefully this will sort of clarify things.

[00:13:10] Speaker 03:
When a claimant submits new evidence after an ALJ's decision,

[00:13:17] Speaker 03:
They do that basically when they're submitting a request for review to the appeals council.

[00:13:23] Speaker 03:
And the appeals council typically says something about what this new evidence shows, whether or not it warrants granting review of the ALJ's decision.

[00:13:34] Speaker 03:
And there's a regulation that kind of sets forth the rules that the appeals council follows when in making that determination about whether to grant review

[00:13:43] Speaker 03:
If the appeals council grants review based on that new evidence, many times the appeals council is looking at the case, is basically reviewing the ALJ's decision and potentially making a new decision.

[00:13:56] Speaker 03:
That didn't happen here.

[00:13:57] Speaker 03:
What happened here is the appeals council received that evidence.

[00:14:02] Speaker 04:
Along with other evidence.

[00:14:04] Speaker 03:
As well as other evidence.

[00:14:05] Speaker 03:
It received the Dr. Miller report as well as other evidence.

[00:14:08] Speaker 03:
and determined that it didn't warrant granting review.

[00:14:12] Speaker 03:
But when it does that, as a matter of agency policy, it still includes that additional evidence in the administrative record.

[00:14:23] Speaker 04:
Help me then, because the Appeals Council, there were at least three other pieces of evidence where they said this is part of the record.

[00:14:30] Speaker 04:
They did not do that with Dr. Miller.

[00:14:33] Speaker 04:
Then there's a, as I understand it, there's, I don't know, is it a clerk or something that basically said it certified Dr. Miller as part of the administrative record.

[00:14:43] Speaker 04:
So what does all that mean?

[00:14:44] Speaker 04:
I mean, why did they go through and say, hey, these other three pieces are part of the administrative record, but Dr. Miller's not?

[00:14:50] Speaker 03:
I think what the appeals council said about the other, I think that if I'm understanding your honor's course, as I recall, that other evidence may have related to the period.

[00:15:00] Speaker 03:
It may have actually been, I think one of the pieces of evidence was like there were some medical records that fell within that time frame.

[00:15:07] Speaker 04:
I think that's probably right.

[00:15:07] Speaker 03:
And I think that's right.

[00:15:08] Speaker 03:
And I think maybe where the hang up here is,

[00:15:12] Speaker 03:
the appeals council can exhibit things, or it can just include them in the administrative record.

[00:15:18] Speaker 03:
And if you look at the administrative record here, Dr. Miller's report shows up kind of in the earlier part of the record, which means it's not technically an exhibit.

[00:15:26] Speaker 03:
But I think all of this, it's a lot of technicalities, and I think it can be confusing, as your honor points out.

[00:15:33] Speaker 03:
But it's still in.

[00:15:34] Speaker 00:
You say that they included

[00:15:39] Speaker 00:
As far as I can tell, the medical evidence that was submitted, some of it was rejected as not showing a reasonable probability that it would change the outcome of the decision.

[00:15:51] Speaker 00:
We do not exhibit this evidence.

[00:15:53] Speaker 00:
And then the Miller evidence doesn't relate to the period issue.

[00:15:56] Speaker 00:
And the only thing that they did exhibit was a request for a review of hearing, a request for a review of hearing, and a representative brief.

[00:16:04] Speaker 00:
Is that right?

[00:16:04] Speaker 03:
That's right.

[00:16:05] Speaker 00:
So there was no medical evidence that was included.

[00:16:07] Speaker 03:
There was no medical evidence that was exhibited.

[00:16:09] Speaker 00:
And so, for example, had they wanted to argue about the other medical evidence, then it would have been about whether it showed a reasonable probability that it would change the outcome of the decision.

[00:16:25] Speaker 00:
And somehow, if there was a dispute about that, you're not arguing that we couldn't review that question.

[00:16:33] Speaker 03:
I'm, I'm, well.

[00:16:34] Speaker 03:
You're saying we could.

[00:16:35] Speaker 03:
The Luther, the Luther decision, and I, I think this also adds a little.

[00:16:39] Speaker 00:
Which decision, I'm sorry?

[00:16:40] Speaker 03:
Luther, the, this court's ninth, the Ninth Circuit Luther decision, says that we're actually not reviewing the appeals council's decision in these cases.

[00:16:48] Speaker 00:
I understand that.

[00:16:48] Speaker 00:
Or the rationale.

[00:16:49] Speaker 00:
But, but, but if the, but if the appeals council had a blatantly wrong characterization of some of this evidence, and it's physically in the administrative record, we couldn't say we're gonna look at that?

[00:17:01] Speaker 03:
You can under Bruce.

[00:17:03] Speaker 03:
I think this all goes back to Bruce, which is kind of where I wanted to sort of steer the conversation to.

[00:17:08] Speaker 03:
Bruce basically says when, and it's sort of a separate inquiry, what does this court do with that evidence once it's in the record?

[00:17:18] Speaker 03:
And that's just what we have here, regardless of what the appeals council said it did or did not do with that evidence.

[00:17:23] Speaker 03:
Under Bruce, if it's in the record,

[00:17:25] Speaker 03:
then this court can review whether or not the ALJ's decision is supported by substantial evidence, notwithstanding that additional evidence.

[00:17:35] Speaker 03:
So, Judge Berzon, you're absolutely right.

[00:17:37] Speaker 03:
You can look at the evidence, and I would encourage the court to look at Dr. Miller's report in this case, because it shows that none of... It doesn't relate to the time period.

[00:17:48] Speaker 04:
Exactly, it's about... But you're saying, if it were not part of the administrative record, could we...

[00:17:54] Speaker 04:
Wouldn't we then say there was an error in not putting in the administrative record and not considering it?

[00:18:01] Speaker 03:
If it was not in the administrative record I think I think my colleague is correct that we're talking maybe more about a sentence six issue because what happens in sentence six that's a sentence six of 42 USC 405 G talking about court review and and it's a it's sort of a technical term but but what

[00:18:19] Speaker 03:
sentence six is referring to is when new evidence is submitted for say the first you know the first that's not in the record perhaps and often we see it it's the first time in federal court a claimant comes in submits new evidence what this court looks at in us in that scenario is was the evidence new as in is this was it in the record or is it new is it material

[00:18:44] Speaker 03:
Does it somehow impact the ALJ's decision?

[00:18:47] Speaker 03:
And was there good cause?

[00:18:49] Speaker 03:
And that's right in the statute.

[00:18:50] Speaker 03:
So it's not as if this court can never look at that evidence that's coming in outside of the record.

[00:18:56] Speaker 04:
But here the appeals council said, as to Dr. Miller, it doesn't meet the materiality requirement, right?

[00:19:02] Speaker 04:
Because it doesn't go to the time period.

[00:19:04] Speaker 03:
Well, right.

[00:19:05] Speaker 03:
Under the regulations, that's also one of the things the appeals council looks at as well.

[00:19:10] Speaker 03:
I think to your question, this report is in this record, so we don't have to reach sentence six.

[00:19:18] Speaker 04:
I mean, in our brief, we- Is there any difference between submitted and considered by under BRUCE?

[00:19:24] Speaker 03:
I don't believe so.

[00:19:25] Speaker 03:
I think under BRUCE, if the appeals council, and I really just don't think there's much daylight between BRUCE and what the appeals council did here, which

[00:19:37] Speaker 03:
I think my colleague is correct.

[00:19:39] Speaker 03:
The Appeals Council had to somehow consider this by looking at it and making a determination whether or not it actually related to the issue.

[00:19:47] Speaker 00:
There's some language in the regulation about official record.

[00:19:53] Speaker 00:
Is that different from the administrative record?

[00:19:56] Speaker 03:
I'm not aware of that specific language, Your Honor.

[00:20:00] Speaker 03:
I'm sure you're right.

[00:20:01] Speaker 03:
I think the certified administrative record, which we cite as the car in our social security cases, is the official record for purposes of judicial review.

[00:20:15] Speaker 03:
So if we've got these bulk of records that came in after the ALJ's decision here, which includes Dr. Miller's,

[00:20:23] Speaker 03:
report, that is part of the certified administrative record because it is technically not an exhibit because it wasn't in front of the ALJ at the time, and the appeals council didn't include it as one of the F exhibits, but in compiling that administrative record, it did become part of the record because it is in there.

[00:20:43] Speaker 03:
So again, under Bruce,

[00:20:47] Speaker 00:
the inquiry is whether or not substantial evidence 404.96b says something about will only make it part of the official record if it meets the temporal relevance requirement so it seems like the regs maybe think there's a difference between an official record and a

[00:21:06] Speaker 00:
and the administrative record, by which it has the, by whether it's called exhibited, which is a word I never heard before.

[00:21:14] Speaker 03:
Yeah, and I can understand there's a lot of, I mean, I do think there is a little bit of confusion here, but at the end of the day, the Ninth Circuit's Bruce standard.

[00:21:23] Speaker 04:
Well, I'm not sure, I mean, look, I'm not sure it's fair to say that Bruce solves this problem, because even after Bruce, there's still a lot of confusion in the district courts on this issue.

[00:21:34] Speaker 04:
And so I mean, one question is, should we take this case as an attempt to clarify it?

[00:21:41] Speaker 04:
I'm not so sure, given that I'm not sure we would clarify it.

[00:21:45] Speaker 04:
And I'm not even sure what clarification would mean here.

[00:21:48] Speaker 04:
Because at the end of the day, it seems like we could consider this in one way or the other.

[00:21:54] Speaker 04:
Even if it wasn't part of the administrative record, we'd say, well, that was error.

[00:21:58] Speaker 04:
Because it turns out he actually said,

[00:22:01] Speaker 04:
It did cover this time period and therefore the Appeals Council aired by saying that it didn't.

[00:22:07] Speaker 04:
I mean, we, we could do that.

[00:22:09] Speaker 04:
Right.

[00:22:10] Speaker 03:
Absolutely.

[00:22:12] Speaker 03:
I mean, yes, I mean, you could you could You could find that

[00:22:17] Speaker 03:
I think what Your Honor is referring to is if it's not technically part of the record, then I think we are in sentence six territory.

[00:22:24] Speaker 03:
Right.

[00:22:24] Speaker 04:
And then we just remand it back.

[00:22:25] Speaker 03:
Well, you would if you found that it was both material and there was good cause for not submitting it earlier.

[00:22:32] Speaker 00:
And here, neither of those requirements are met because... Isn't good cause now part of the administrative standard as well?

[00:22:39] Speaker 04:
I believe it is I don't have the regulation right in front of me, but it's definitely part of the I think that's where I'm still hung up on this because I think to get into the administrative record There's a requirement of materiality At a minimum and here there was no materiality.

[00:22:55] Speaker 04:
So therefore it isn't part of the administrative record I mean, it's kind of silly because they could submit a

[00:23:01] Speaker 04:
a hundred different reports and the appeals council says look all of this is great for a new claim but it has nothing to do with the claim that we're currently reviewing and then you'd say well that's just all part of the administrative record when it really had nothing to do with the decision here.

[00:23:18] Speaker 03:
I agree.

[00:23:19] Speaker 03:
I mean, I agree that it would not have anything to do with the decision here.

[00:23:22] Speaker 03:
I mean, that's that is exactly what we argued in our brief that Dr. Miller's opinion doesn't have anything to do with the issue here.

[00:23:27] Speaker 03:
But I think and I mean, I understand your honor's question.

[00:23:31] Speaker 03:
I do think under Bruce, you know, the way that this court has ruled, how it evaluates appeals council evidence, you know, evidence that comes to the appeals council after the decision.

[00:23:43] Speaker 00:
I think this court's bruised decision does answer this issue, and that is... That's which would be something mighty weird about saying something isn't part of the administrative record, which is physically in the administrative record.

[00:23:54] Speaker 03:
And I think that's our position, I think, because it is technically in that certified administrative record.

[00:23:59] Speaker 04:
Well, but that also can't be the test, because you could have a clerk error or whatever that puts it in.

[00:24:05] Speaker 04:
That doesn't make it part of it.

[00:24:07] Speaker 04:
I guess what I'm really trying to struggle with here is there's something different about the social security administrative record, because in a normal administrative record process, it's only material that goes to the decision of the agency.

[00:24:23] Speaker 04:
So you wouldn't have all this extraneous evidence that didn't go to why they made the decision.

[00:24:29] Speaker 04:
And here you're sort of suggesting, no, as long as it was submitted and they

[00:24:35] Speaker 04:
made a crack at whether it was relevant or not, that's enough to get in the administrative record.

[00:24:40] Speaker 04:
That would not be the case in other agency decisions.

[00:24:44] Speaker 03:
And your honor may very well be right on that.

[00:24:46] Speaker 03:
I do think if

[00:24:48] Speaker 03:
If we're looking at the exhibits that the ALJ considered, so the medical records are often in the F exhibits that your honors are probably familiar with.

[00:24:58] Speaker 03:
So these records did not appear there.

[00:25:01] Speaker 03:
So the appeals council didn't actually put them into the F exhibits, which were part of the official record in front of the ALJ.

[00:25:07] Speaker 03:
That's what the ALJ looked at.

[00:25:09] Speaker 03:
If you're looking at what the court record, though, what the certified administrative record that was submitted to this court

[00:25:15] Speaker 03:
was compiled it is part because it's in if your honors go into the the electronic certified administrative record you'll you'll see these kind of right up front it wasn't an administrative mistake because the regs say they're going to put it in they do and we know it wasn't a mistake because if you if you look at what how the appeals council described the evidence that it was considering it matches you you can match it up it says you know like for example 33 pages of

[00:25:42] Speaker 03:
medical records from this facility.

[00:25:44] Speaker 00:
But doesn't the current regulation anyway say, and we will put it in the certified administrative record?

[00:25:50] Speaker 00:
I believe it does, even if we don't

[00:25:54] Speaker 03:
Right.

[00:25:55] Speaker 03:
Even if we don't exhibit it, we will include it.

[00:25:57] Speaker 03:
And I do think it is so that one of the reasons, perhaps, is so that the court can look at it.

[00:26:03] Speaker 03:
Because we often do get arguments about, specifically in the Ninth Circuit, we often get arguments about, well, this new evidence that I submitted to the appeals council undermines the ALJ's decision.

[00:26:13] Speaker 03:
The only way the court can evaluate that issue is by looking at it.

[00:26:17] Speaker 03:
So we do that so that the court can look at it.

[00:26:20] Speaker 03:
And the same with sentence six.

[00:26:21] Speaker 03:
If for the very first time,

[00:26:23] Speaker 03:
You know the claimant submits something and attaches it to the federal court brief again This court has to look at those sentence six requirements, too I see I'm over my time.

[00:26:32] Speaker 03:
I do just want to make one final point if it's okay again we regardless of whether or not you apply brews which we would submit is the correct position or if you're applying sentence six for you know material that's not technically part of the record as we set forth on our brief the

[00:26:48] Speaker 03:
You know, Dr. Miller's report just simply does not meet those standards here.

[00:26:52] Speaker 04:
Okay.

[00:26:52] Speaker 04:
Thank you.

[00:26:53] Speaker 04:
We'll give you two minutes for a vote.

[00:27:04] Speaker 01:
All right, on page seven of the gray brief, I do a nice summary of some of the critical evidence during the period at issue.

[00:27:13] Speaker 01:
And that includes the January and February 2022 imaging, and the flexion severe, extension severe, side glide severe.

[00:27:24] Speaker 01:
Also, the tug test, which is the standing and walking test, she couldn't do.

[00:27:30] Speaker 01:
They said it was too painful for her.

[00:27:34] Speaker 01:
Duration can be met if an impairment meets a disability standard during the period at issue and then is likely to continue for 12 months.

[00:27:44] Speaker 01:
So we have evidence from January 22 of the L5S1 crowding the recesses.

[00:27:52] Speaker 01:
And we have, on February 1, the severe pain on all lumbar range of motions, the increased peripheralizing even during treatment, and the tug test.

[00:28:05] Speaker 01:
Interesting point on that.

[00:28:08] Speaker 01:
She could do the tug test with Dr. Miller.

[00:28:10] Speaker 01:
But she did it so slowly, he regarded it as a great risk of falling.

[00:28:16] Speaker 01:
So his findings are a continuity of the findings made in January and February.

[00:28:22] Speaker 00:
But to the extent, you said earlier that you need Dr. Miller to prevail.

[00:28:28] Speaker 01:
I do.

[00:28:29] Speaker 00:
And if his, to the degree that his findings are only the same as they were earlier,

[00:28:37] Speaker 01:
Well, the judge never said about this.

[00:28:40] Speaker 01:
It does, because the ALJ never discussed, in fact misstated, flexion severe, extension severe.

[00:28:46] Speaker 01:
The ALJ said that's all normal.

[00:28:47] Speaker 00:
That's a mistake, and you perhaps could have asked us to reverse based on that, but you didn't.

[00:28:53] Speaker 00:
You're telling us that

[00:28:54] Speaker 00:
everything turns on Dr. Miller.

[00:28:57] Speaker 00:
And if everything turns on Dr. Miller, if Dr. Miller is only saying what was already said, then it doesn't advance anything.

[00:29:05] Speaker 00:
So it's only to the degree he's saying things that weren't already said that he matters, right?

[00:29:12] Speaker 00:
And to the degree he's saying things that weren't already said, how do they relate to the earlier period?

[00:29:16] Speaker 01:
The ALJ made an error by not mentioning the

[00:29:19] Speaker 01:
February and January evidence, in fact, misstating it.

[00:29:23] Speaker 01:
And I did include that in my briefing, certainly in the reply brief.

[00:29:27] Speaker 01:
That's evidence that ALJ misstated.

[00:29:29] Speaker 01:
Does it standing alone establish disability?

[00:29:32] Speaker 01:
Who knows?

[00:29:33] Speaker 01:
It doesn't have an opinion associated with it.

[00:29:35] Speaker 01:
But it does when Dr. Miller gives his opinion.

[00:29:39] Speaker 00:
I see.

[00:29:40] Speaker 00:
Because the earlier ones were the medical evidence, but they didn't have associated disability opinions.

[00:29:45] Speaker 01:
They didn't have an opinion.

[00:29:48] Speaker 01:
Dr. Miller gives the opinion, and his findings are similar to Klayman's testimony during the hearing, that she has to rest when she's doing dishes, that she gets help from her husband.

[00:29:57] Speaker 01:
So things appear to be worse at the time of the hearing than they were earlier when she was getting better after her initial surgery in 2019.

[00:30:06] Speaker 01:
So I'd say the crucial dates begin in January 2022, the findings on the tug test and so forth in 2022 in February, and then Dr. Miller's own findings.

[00:30:18] Speaker 01:
An interesting thing about Dr. Miller also, he said the intensity increases as the static activity continues.

[00:30:26] Speaker 01:
When the claimant left, she was more antogic in her movement than she was when the testing started.

[00:30:34] Speaker 01:
And that matches what she claimed, that she can sit, she can stand.

[00:30:38] Speaker 01:
But it's hard for her to do it long.

[00:30:39] Speaker 01:
She has to adjust her weight, she has to adjust her position, and eventually has to change because the pain becomes excruciating.

[00:30:47] Speaker 01:
So if she's standing, she's eventually got to sit.

[00:30:50] Speaker 01:
If she's sitting, she's going to have to stand.

[00:30:53] Speaker 01:
Right.

[00:30:53] Speaker 01:
So Dr. Miller supports that.

[00:30:56] Speaker 04:
Okay.

[00:30:57] Speaker 04:
Thank you.

[00:30:57] Speaker 01:
Okay.

[00:30:57] Speaker 04:
We've given you a little bit of extra time.

[00:30:59] Speaker 01:
Thank you very much.

[00:31:00] Speaker 04:
Thank you both for your arguments in this case.

[00:31:02] Speaker 04:
The case is now submitted.