[00:00:00] Speaker 04:
All right, so I think we I think it works here Mr. Yanich, we're gonna have you go first and let us know how much time you want to reserve for rebuttal and then mr. Modi muddy Modi, okay, we'll have you'll go second Go you may proceed mr. Yanich Thank you.

[00:00:22] Speaker 01:
May it please the court.

[00:00:23] Speaker 01:
My name is a Tom Castle Yanich and I'm representing Scott Connolly in this appeal and

[00:00:30] Speaker 01:
Connelly has been unable to work since November of 2018 as a result of the functional effects of his many severe impairments, including post-status post-left ankle fracture, essential hypertension, atrial fibrillation, obesity, major depressive disorder, and generalized anxiety disorder.

[00:00:49] Speaker 01:
I want to focus on the errors that were made by the ALJ that require remand for a new hearing.

[00:00:58] Speaker 01:
Mr. Connelly had a treating physician, Dr. Franzen, who was treating him prior to his alleged onset date, and shortly after his alleged onset date, wrote an opinion.

[00:01:12] Speaker 01:
Well, basically, he wrote a treatment note, and in the treatment note, he wrote that Connelly continues to have significant pain that prevents him from being able to work.

[00:01:23] Speaker 01:
Now, the significance of this evidence from a treating physician is that this supports Connolly's testimony about how his ankle pain prevented him from being on his feet enough to be able to... John, excuse me.

[00:01:39] Speaker 02:
Are you referring to the note of December 14th of 2018 by Dr. Franzen?

[00:01:44] Speaker 02:
Yes.

[00:01:46] Speaker 02:
And is it correct that there was evidence that Dr. Franzen had cleared him again to work

[00:01:53] Speaker 02:
by mid January in the physical therapy notes.

[00:02:01] Speaker 01:
The thing about being cleared to work just meant he was cleared to be, he wasn't cleared what level, it doesn't say what level of work he was cleared to do.

[00:02:12] Speaker 01:
And the thing is that from the time he stopped working, his depression and anxiety became so bad that he was basically not leaving his bed much of the time.

[00:02:23] Speaker 01:
He was really, and he talked about this in his testimony, he was doing very poorly.

[00:02:28] Speaker 01:
And so this is not a case where it's just, this is a man who weighs over 300 pounds.

[00:02:35] Speaker 01:
He's a large man, he's tall, but it's a lot of weight.

[00:02:39] Speaker 01:
He broke in his ankle and it hadn't healed well and the pain recurred over time.

[00:02:45] Speaker 01:
I mean this isn't, you know, he's not,

[00:02:48] Speaker 01:
able to be physically do the kind of physical labor he used to do.

[00:02:52] Speaker 01:
And that's one of the odd things.

[00:02:54] Speaker 01:
I'm just focusing for a moment on the physical.

[00:02:56] Speaker 01:
The ALJ in this case found that he could do medium work.

[00:03:01] Speaker 01:
Medium work requires lifting 50 pounds for one-third of the workday, up to 50 pounds, and being on your feet for six hours in an eight-hour day.

[00:03:10] Speaker 01:
Those are simply unrealistic.

[00:03:13] Speaker 01:
It's not even close to his abilities.

[00:03:16] Speaker 01:
So that's the physical angle in this case.

[00:03:20] Speaker 01:
With regard to the mental problems, he was evaluated by a psychologist, Dr. Wingate,

[00:03:27] Speaker 01:
and she opined that he had a lot of significant limitations, marked limitations in his ability to mentally function in a work environment.

[00:03:38] Speaker 01:
He also started getting mental health counseling and he got mental health treatment from Dwayne Price from the

[00:03:47] Speaker 01:
mental health therapist for several years.

[00:03:50] Speaker 01:
And Mr. Price ended up writing up an opinion letter basically saying that he was not that functional mentally.

[00:03:58] Speaker 02:
He wouldn't be, you know, so it's... Christiane, could I interrupt for a second?

[00:04:03] Speaker 02:
As in many social security cases, as you know, we've got evidence pointing in both directions here, both supporting and undermining a claim of disability.

[00:04:15] Speaker 02:
We've got a pretty detailed opinion by an ALJ evaluating that evidence.

[00:04:20] Speaker 02:
Could I ask you to focus on the ALJ's discussion of Mr. Simmons' comments in particular and where that fits in with Ninth Circuit precedent and the relevant regulations at this point?

[00:04:37] Speaker 01:
Thank you.

[00:04:38] Speaker 01:
That is a big concern, not just in this case, but in many cases.

[00:04:44] Speaker 02:
Well, I think we're going to hear from you tomorrow in the Ahern case as well, similar issues.

[00:04:52] Speaker 02:
But it would be helpful, at least to me, if you could focus in on those.

[00:04:58] Speaker 02:
And in particular,

[00:05:01] Speaker 02:
The ALJ here did not ignore what Mr. Simmons had to say but but recited it said he can she considered it and Explained I thought tell me why I'm wrong that Simmons's comments just weren't that persuasive given the overall record

[00:05:21] Speaker 01:
Okay, so there's two separate issues involved in this case.

[00:05:26] Speaker 01:
One is the one you just addressed.

[00:05:28] Speaker 01:
I'll address that first, which is did the ALJ state germane reasons for rejecting Mr. Simmons' observations?

[00:05:38] Speaker 01:
And basically, the ALJ generally stated that in her opinion, Mr. Simmons' statements were contradicted by, were contrary to the medical evidence, for example.

[00:05:55] Speaker 01:
And the problem with that is the evidence regarding, certainly regarding his mental health problems is fairly consistent through the record about him having problems.

[00:06:08] Speaker 01:
And that they were he was getting treatment and yet he continued to have problems not 100% of the time, but he was still not fully functional not to where he could Leave his home and go out and try to do some sort of any kind of work on a full-time basis and that's

[00:06:31] Speaker 01:
The issue as far as what was disabling here wasn't just his ankle or just his back or just anything like that or just his mental health problems, but the combination of them resulting in him spending much of his time reclining, spending much of his time just not feeling well enough to be able to go out and do things.

[00:06:55] Speaker 01:
And I know, back to Mr. Simmons' statement, I don't think that the ALJ's analysis of that is fair because it doesn't really identify any medical evidence that actually contradicts his observations.

[00:07:10] Speaker 02:
At that point in the opinion, the ALJ had just finished

[00:07:13] Speaker 02:
We're on page 19 of 22 at that point, and she's already explained in pretty great detail why she did not accept Mr. Connolly's own testimony about how debilitating his conditions are.

[00:07:29] Speaker 02:
Did she need to repeat all that in addressing Simmons?

[00:07:35] Speaker 01:
No.

[00:07:36] Speaker 01:
You see, if her reasons for rejecting Connolly's testimony

[00:07:43] Speaker 01:
were clear and convincing if they were actually supported by the evidence.

[00:07:49] Speaker 01:
I think it would be legitimate for her to then point to

[00:07:54] Speaker 01:
You know, there's Ninth Circuit precedent that says if she provides good reasons for rejecting a person's opinion and the lay evidence is similar to that or even identical to that, those reasons could apply to rejecting, they don't have to apply, but they could apply to rejecting the lay evidence.

[00:08:14] Speaker 01:
But what's different here, as is quite often true, is that although the ALJ listed a long series of

[00:08:23] Speaker 01:
reasons for rejecting Connolly's testimony, the reasons don't withstand careful scrutiny.

[00:08:29] Speaker 01:
Some of the reasons are really offensive almost.

[00:08:32] Speaker 01:
For example, the fact that he was the sole caregiver of a disabled child was treated by the ALJ as an example of how functional he is, whereas

[00:08:49] Speaker 01:
He was the only thing keeping that child out of foster care.

[00:08:55] Speaker 01:
The fact that he's doing that doesn't show that he was mentally or physically able to go out and perform a 40-hour work week doing medium work.

[00:09:07] Speaker 01:
There's just no connection there, and that's just one of many examples, and I try to address all of her examples.

[00:09:16] Speaker 01:
I know her analysis is long, but long doesn't mean it makes sense.

[00:09:23] Speaker 01:
For example, what a big part of our analysis is just basically reciting the medical evidence.

[00:09:31] Speaker 01:
As you pointed out, the medical evidence, as is often, it's almost always going to be true.

[00:09:38] Speaker 01:
There's going to be medical evidence that shows a person's doing better, and there's going to be medical evidence showing they're doing worse.

[00:09:44] Speaker 01:
The question is,

[00:09:45] Speaker 01:
Did she say any kind of, provide any kind of convincing reasons to reject his testimony that was consistent with the medical evidence that showed he was doing worse?

[00:09:56] Speaker 01:
And she didn't.

[00:09:57] Speaker 01:
And because she didn't, she can't, the evidence from Mr. Simmons, the lay evidence, can't just piggyback on the analysis that wasn't a valid analysis.

[00:10:11] Speaker 01:
Now, I didn't mention that the second issue, which I'm not going to go into at length, I don't think it's as relevant here as it could be in some other cases, is that the government seeks to use post hoc analysis to rely on

[00:10:28] Speaker 01:
amended medical evidence regulations that did not address lay evidence, other than to say that these medical evidence regulations don't apply to lay evidence.

[00:10:39] Speaker 01:
You don't have to use these rules to analyze lay evidence.

[00:10:43] Speaker 01:
And Social Security has consistently, in most of my current cases, been arguing that these revised medical evidence regulations

[00:10:56] Speaker 01:
completely change the legal standards applying to lay evidence, and they basically abrogate all law, the Ninth Circuit law on the issue of lay evidence.

[00:11:07] Speaker 01:
I think that's all nonsense, and it's just not, if they wanna change the lay evidence regulations, they certainly can, but they better put it in the title of their proposed regulations.

[00:11:21] Speaker 01:
They better put it in the actual regulations

[00:11:24] Speaker 01:
and explain which regulations involving lay evidence they are overruling and how they're changing those regulations.

[00:11:32] Speaker 01:
They didn't do any of that, and yet we've got the government arguing it.

[00:11:36] Speaker 01:
But as you pointed out, Judge Hamilton, the other issue here which does, because this is a case where the judge did address the evidence, that other issue is not the critical issue.

[00:11:49] Speaker 01:
I think the critical issue under the law is

[00:11:52] Speaker 01:
were her reasons germane?

[00:11:54] Speaker 01:
And I tried to spell it out in my brief, why none of her reasons for rejecting his observations were germane.

[00:12:01] Speaker 01:
The important thing about lay evidence, what makes it so different, is that it's not just the person telling how they feel, which is very important because you can't know what somebody's pain is like or what somebody's depression is like, what it feels like to not get out of bed or not want to.

[00:12:19] Speaker 01:
without seeing, without them telling you that, but similarly some of the comments from Mr. Simmons about, he comes over there and Connolly was, and you've read the description, I don't want to really recite it in the oral argument here, but he was not fit, he was obviously not taking care of himself.

[00:12:42] Speaker 01:
And so those kind of observations are very important evidence.

[00:12:45] Speaker 01:
You won't see that even from medical appointments, because when you go to a medical appointment, you take the bus there, and you're there, and you try to put yourself in your best light.

[00:12:56] Speaker 01:
But Mr. Simmons was recording what he saw, and I think that's very important evidence here.

[00:13:02] Speaker 01:
And I don't think the judge properly rejected it.

[00:13:05] Speaker 04:
Mr. Yanich, so you're down about two minutes.

[00:13:08] Speaker 04:
How much time did you want to reserve for rebuttal?

[00:13:11] Speaker 01:
About two minutes.

[00:13:12] Speaker 01:
I'll use up my last 11 seconds.

[00:13:15] Speaker 01:
The only other issue I wanted to mention is that the appeals council evidence, which was another psychological evaluation, confirms that his condition was continuing and persisting.

[00:13:30] Speaker 01:
And I would like to reserve my time now.

[00:13:32] Speaker 04:
Sounds good.

[00:13:32] Speaker 04:
Thank you.

[00:13:33] Speaker 04:
We'll go ahead and hear from the other side, and then we'll come back to you, Mr. Yanich.

[00:13:52] Speaker 00:
Good morning.

[00:13:53] Speaker 00:
May it please the court, Assim Modi on behalf of the Commissioner of Social Security.

[00:13:57] Speaker 00:
Substantial evidence supports the ALJ's finding here that the claimant was not disabled, and I think that's best illustrated here by the ALJ's exhaustive comparing and contrasting between dire claims about the claimant's symptoms and limitations and the amount of evidence that paints a far more benign picture of the claimant's overall functioning.

[00:14:14] Speaker 00:
To focus on a few examples,

[00:14:17] Speaker 00:
As my opponent noted, the claimant alleged that he was emotionally paralyzed, devastated, markedly impaired in his ability to interact with others, and physically incapable of the most basic of physical tasks.

[00:14:31] Speaker 00:
But as ALJ pointed out, the claimant stopped working for reasons unrelated to his allegedly disabling impairments.

[00:14:37] Speaker 00:
And his medical sources during the period of issue noted that he had a general disinclination to work, had been balking at the idea of employment, and was wedded to the idea of obtaining social security disability benefits despite being told about the benefits of pursuing vocational rehabilitation and that his condition was stable.

[00:14:59] Speaker 00:
To put it simply, despite the claimant's allegations of being largely unable to do anything in the course of the day, the ALG pointed out the claimant was able to do really most other activities other than engage in substantial gainful activity.

[00:15:10] Speaker 00:
That during the period at issue, the claimant engaged in self-employment, that he was working, selling the contents out of a storage locker with a friend.

[00:15:19] Speaker 00:
that he volunteered and was chopping and stacking firewood, which is something noted throughout the record, that he was, again, the primary caregiver for his son with special needs, homeschooled his son successfully, and advocated on his son's behalf for his son's claims for disability benefits.

[00:15:36] Speaker 00:
The claimant did his peer also remain physically active by riding his bicycle to get around, performing home projects, gardening, socializing with friends, and performing household errands and chores.

[00:15:52] Speaker 00:
And on top of this, you know, aside from, you know, while the claimant here is alleging debilitating pain and emotional distress, the treatment records showed a consistent picture of improvement.

[00:16:02] Speaker 00:
his outpatient counseling record showed a huge improvement.

[00:16:05] Speaker 00:
I think these are words from the record itself, a huge improvement with psychotropic medication.

[00:16:09] Speaker 00:
Likewise, the claimant reported he had a significant or dramatic improvement in his left angle condition in physical therapy and the medication had brought his hypertension under control and had eliminated or nearly eliminated the swelling in his legs and that during this period that he was physically active, able to engage in physical labor and cleared to work without any physical restrictions.

[00:16:32] Speaker 00:
So the ALJ appropriately noted that these inconsistencies undermine medical opinions and non-medical source testimony, endorsing the claimant's allegations of disabling symptoms and limitations.

[00:16:43] Speaker 00:
And while the claimant pins his claims for remand based on vague conclusions about the extent of his mental limitations,

[00:16:51] Speaker 00:
short-term work restrictions, statements reserved to the commissioner that are neither inherently, that are neither valuable or persuasive, or medical opinion evidence that addresses a time period that's completely different to the issue that is at issue in this case, this is all unavailing.

[00:17:08] Speaker 02:
Mr. Modi, could I ask you to focus in on the treatment of the Simmons evidence and how the Ninth Circuit precedent and the changes in the regulations, as you see it, affect the appropriate treatment of such evidence?

[00:17:24] Speaker 00:
Yes, Your Honor.

[00:17:25] Speaker 00:
So under the revised regulations, non-medical evidence such as that from Mr. Simmons, the claimant's friend, that is evidence per 1520 C.D., is evidence that ALJ is no longer required to articulate how that evidence was considered in the decision.

[00:17:41] Speaker 02:
Well, that's not exactly what it says, right?

[00:17:45] Speaker 02:
The new regulation says we're not going to apply the same standards to this lay evidence that we apply to medical evidence, right?

[00:17:53] Speaker 00:
Yes, your honor.

[00:17:54] Speaker 02:
OK.

[00:17:54] Speaker 02:
And I guess my problem, I can read some of your argument as just saying, well, the ALJ may have to consider this, but she doesn't have to articulate anything about it.

[00:18:05] Speaker 02:
Is that right?

[00:18:06] Speaker 00:
Yes, your honor.

[00:18:07] Speaker 02:
OK.

[00:18:07] Speaker 02:
I don't think it is.

[00:18:08] Speaker 02:
But let me lay out the reasoning and get your response to it, if I could.

[00:18:14] Speaker 02:
In other regulations, and I'm specifically here from the

[00:18:20] Speaker 02:
the Disability Insurance Benefits Regulation 404.1545 about how we're going to evaluate.

[00:18:30] Speaker 02:
A3 says, among other things, we'll consider descriptions and observations of your limitations from your impairments, including limitations that result from your symptoms, such as pain provided by you, your family, neighbors, friends, or other persons, right?

[00:18:43] Speaker 02:
So we're going to consider that.

[00:18:46] Speaker 02:
And it seems to me that just as a matter of general administrative law, we ordinarily expect at least a sufficient articulation to permit meaningful judicial review.

[00:19:00] Speaker 02:
And I don't see anything in the regs that seems to disavow that kind of principle, as applied to lay evidence.

[00:19:08] Speaker 00:
Well, Your Honor, I think the way that the regulations, the revised medical evidence are laid out, and I think this is also further explained when the agency published this rule in the Federal Register.

[00:19:18] Speaker 00:
And the agency explained that this kind of evidence is evidence that the ALJ isn't required to articulate how they consider it, but doesn't mean that the ALJ should never do so, that there may be circumstances where it would be appropriate for the ALJ to articulate how they did so.

[00:19:34] Speaker 00:
But they left that out to the ALJ's discretion.

[00:19:37] Speaker 00:
And I think this evidence falls in that category.

[00:19:40] Speaker 00:
And as we know in our brief, this is not the only instance where courts have recognized a distinction between evidence the ALJ is required to consider and what they're required to articulate.

[00:19:52] Speaker 02:
I recognize that distinction.

[00:19:54] Speaker 02:
And the ALJ says, I considered it.

[00:19:59] Speaker 02:
But if that's all that's said and it otherwise seems fairly meaty, substantial, deserving of comment, how do we deal with such a case if the ALJ just says, I considered it, and it's not good enough?

[00:20:19] Speaker 00:
Well, Your Honor, I think this is a question we don't actually have to address in this instance because the ALJ did address the statements from Mr. Simmons and provided multiple reasons for why she found those that testimony, as you noted earlier, to be not entirely reliable.

[00:20:33] Speaker 00:
The ALJ noted that Mr. Simmons essentially echoed the claimant's own statements about being physically conditioned to the point where he was unable to care for himself.

[00:20:41] Speaker 00:
and that he had emotional distress as well that largely hindered his functioning during the course of the day.

[00:20:47] Speaker 00:
And ALJ pointed out that, like the claimant's own testimony, that she didn't accept those statements in full, because on one hand, the medical evidence showed largely normal physical and mental status, and as well as that, an improvement in his symptoms with mental health treatment.

[00:21:03] Speaker 02:
Right.

[00:21:03] Speaker 02:
And I appreciate that point.

[00:21:05] Speaker 02:
I guess I'm concerned.

[00:21:09] Speaker 02:
about how your more aggressive position, though, fits in with a principle that's sometimes described as, well, you've got to show your work as an ALJ.

[00:21:19] Speaker 00:
Well, here, Your Honor, I think this is, again, the question we don't necessarily have to get to, because the ALJ did explain how she considered this testimony and provided reasons for rejecting it.

[00:21:28] Speaker 00:
And I think the point we're making in our brief is emphasizing the distinction that under the revisions to the medical evidence regulations, that this falls in the category, unlike medical opinion evidence,

[00:21:38] Speaker 00:
This non-medical source evidence is evidence of the LJ no longer is required to articulate.

[00:21:43] Speaker 00:
And even though we don't yet have published Ninth Circuit case law on this point, we do have a line of Ninth Circuit cases running from, and I think we cite to a couple of them, but there's I think one more recent that came out after our brief, which is Trogdon.

[00:21:57] Speaker 00:
T-R-O-G-D-O-N versus O'Malley that reaffirms this principle that this non-medical source evidence is evidence that ALJ is no longer required to articulate how they considered it into the decision.

[00:22:10] Speaker 00:
And so we do have this line, again, nothing published on this at this point as of yet, but

[00:22:17] Speaker 02:
Was trogden precedential you know was trogden pet precedential You know your honor all right, you know if I could just follow up on one.

[00:22:26] Speaker 02:
I haven't checked the list of Council for tomorrow's cases are you staying to argue the Ahern case tomorrow?

[00:22:32] Speaker 02:
Yes, your honor, okay?

[00:22:33] Speaker ?:
I

[00:22:35] Speaker 04:
Thank you.

[00:22:37] Speaker 04:
So would it be proper to say that your position is, since you no longer have to articulate it, but you acknowledge that the ALJ does have to consider it, if it's, and I think it doesn't sound like anybody, if the lay testimony is not particularly

[00:22:54] Speaker 04:
you read it and it doesn't do much, then I'm not sure that that would be an issue.

[00:22:58] Speaker 04:
I think, as I understood my colleague, the question was, what if you read the lay testimony and you think, yeah, it actually kind of does something here, but the ALJ did not articulate, then what do we do with that?

[00:23:12] Speaker 04:
We have, as I understand it, a clear regulation now that says they don't have to articulate it.

[00:23:16] Speaker 04:
We also have regulations and just

[00:23:19] Speaker 04:
general administrative law principles, they do have to consider it.

[00:23:21] Speaker 04:
So is your position then that we would need to ask ourselves under substantial evidence review

[00:23:28] Speaker 04:
Does the record compel, looking at this lay evidence, does the record compel a different conclusion than the ALJ reached here?

[00:23:35] Speaker 04:
If we thought it did, then we would be remanding it and returning it.

[00:23:42] Speaker 04:
But if not, if the ALJ doesn't articulate anything about it, that's what we would do.

[00:23:47] Speaker 04:
We'd apply the substantial evidence standard.

[00:23:49] Speaker 04:
the desert record compel and evaluate that and reach our conclusion and we'd either affirm, I guess affirm in this case because it comes from the district court, affirm or we'd remand.

[00:24:03] Speaker 04:
at your position?

[00:24:04] Speaker 00:
Yes, Your Honor.

[00:24:05] Speaker 00:
I think that's exactly the case, Your Honor.

[00:24:06] Speaker 00:
I think if this court were to, if this is evidence that the ALJ deemed not essential for one reason or another, but the court were to determine that it actually goes to the heart of this case and would undermine the substantial evidence supporting the ALJ's findings, in that instance, that evidence would justify remand.

[00:24:22] Speaker 00:
But this is not one such case because, of course, the ALJ did address it.

[00:24:26] Speaker 00:
But ultimately, yes, should the court deem that evidence to be

[00:24:30] Speaker 04:
So just where the change in the regulations matters is

[00:24:35] Speaker 04:
In theory, we would have remanded it before if we looked at it and we said, you know, this is somewhat meaty evidence.

[00:24:42] Speaker 04:
We're not necessarily convinced that it requires a different result, that it compels a different result.

[00:24:49] Speaker 04:
But the ALJ didn't discuss this issue, so we're going to send it back to.

[00:24:53] Speaker 04:
And that's where this new standard would make a difference, is merely not discussing it doesn't make the difference.

[00:25:00] Speaker 04:
But it depends on the substance of actually what it does.

[00:25:04] Speaker 00:
Exactly, Your Honor.

[00:25:05] Speaker 00:
And there isn't really a whole lot of daylight between that standard that you're laying out, Your Honor, and the old standard.

[00:25:12] Speaker 00:
Because under the old standard, the old germane reason standard, this court was still applying a harmless error analysis.

[00:25:18] Speaker 00:
If the LJ didn't address those third party statements in the decision, this court was examining the LJ's oversight and doing so under a harmless error analysis.

[00:25:29] Speaker 00:
And so there was still substantial evidence

[00:25:32] Speaker 00:
underlying the ALJ's decision, and if that ALJ's oversight in doing so was inconsequential to the ultimate disability determination, this court was still affirming.

[00:25:40] Speaker 00:
And so, under the current standard, it would be essentially the same situation, Your Honor.

[00:25:46] Speaker 04:
I guess the difference is, the practical difference would be, under the old standard, when things got sent back to the ALJ for a violation, in theory they could be sent back saying, you know, we don't know if this makes a difference.

[00:25:58] Speaker 04:
But you need to articulate whether you think it and sort of give the LJ the firm.

[00:26:03] Speaker 04:
And now we aren't going to be sending it back, in theory, unless we think it makes a difference.

[00:26:10] Speaker 04:
So we have already said it makes a difference if we send it back.

[00:26:13] Speaker 04:
And so in some ways, if we send it back, it's a less friendly standard for the government.

[00:26:19] Speaker 00:
I think if that were the animating reason for the remand, Your Honor, I think that's a fair representation.

[00:26:25] Speaker 00:
Yes, Your Honor.

[00:26:28] Speaker 04:
Do you have anything further, or?

[00:26:31] Speaker 00:
No, Your Honor.

[00:26:31] Speaker 00:
I think just in closing, based on the record that was before the ALJ, the ALJ recently found the claim was not disabled during the period of issue.

[00:26:40] Speaker 00:
And we ask that this court uphold it to support order and judgment affirming the commissioner's final decision.

[00:26:45] Speaker 04:
All right.

[00:26:45] Speaker 00:
Well, thank you, counsel.

[00:26:46] Speaker 00:
Thank you, Your Honor.

[00:26:48] Speaker 04:
Mr. Yanich, we'll come back to you.

[00:26:50] Speaker 04:
Oh, I think you're still muted, Mr. Yanich.

[00:27:00] Speaker 04:
Nope, still muted.

[00:27:05] Speaker 01:
Now we're back.

[00:27:06] Speaker 01:
There you are.

[00:27:08] Speaker 01:
OK, good.

[00:27:08] Speaker 01:
There was a little delay there.

[00:27:11] Speaker 01:
So I just want to address a few of the things I didn't address before that are important in the analysis in this case.

[00:27:17] Speaker 01:
First of all,

[00:27:20] Speaker 01:
Collies need to elevate his legs.

[00:27:23] Speaker 01:
He has to elevate his legs because he gets edema.

[00:27:26] Speaker 01:
It's documented in the record he gets edema.

[00:27:29] Speaker 01:
There's no debate about it.

[00:27:31] Speaker 01:
The medical evidence shows that.

[00:27:34] Speaker 01:
And he chooses to deal with that by keeping his legs elevated as much as possible.

[00:27:39] Speaker 01:
The ALJ does not state any convincing or even any legitimate reason for rejecting his testimony about his need to elevate his feet.

[00:27:50] Speaker 01:
Back to Mr. Simmons' observations, the ALJ had a short list of the things that supposedly contradicted his observations.

[00:28:02] Speaker 01:
This included, he did the part-time work.

[00:28:06] Speaker 01:
Well, the part-time work, there's a long description of it in the record where he was basically using his place, his home was being used as a staging area for his friends to sell off a bunch of stuff that they got out of these storage units.

[00:28:21] Speaker 01:
It wasn't full-time work and he wasn't doing the physical.

[00:28:26] Speaker 01:
end of it.

[00:28:27] Speaker 01:
There's the chopping and stacking firewood.

[00:28:29] Speaker 01:
Who was he doing that for?

[00:28:31] Speaker 01:
He was doing it as there's a project in Olympia where people volunteer to chop firewood for people who can't afford firewood.

[00:28:38] Speaker 01:
And so people donate firewood and people go there and chop it together.

[00:28:42] Speaker 01:
He wasn't doing it as a living.

[00:28:44] Speaker 01:
He wasn't doing it very often, but he did it as a way of contributing to the community.

[00:28:49] Speaker 01:
He actually took care of his son.

[00:28:51] Speaker 01:
I've already discussed that.

[00:28:53] Speaker 01:
He rode his bicycle.

[00:28:54] Speaker 01:
He hasn't had a driver's license in a long, long time.

[00:28:57] Speaker 01:
He has a history of alcoholism, but he's been maintaining his sobriety.

[00:29:01] Speaker 01:
And so, yeah, that's his best way of getting around besides the bus.

[00:29:05] Speaker 01:
And the final thing is that he's doing errands and chores.

[00:29:09] Speaker 01:
Yes, he did errands and chores because he had to take care of stuff, but he didn't do them very well because the place was not maintained.

[00:29:16] Speaker 01:
And Mr. Simmons' observations of that confirm that he was struggling to even do the basic activities of daily living.

[00:29:28] Speaker 01:
I submit to the court that the issue of whether or not the amended, the revised medical evidence regulations changed anything about how an ALJ must consider and discuss, articulate the basis of how they considered important lay evidence

[00:29:51] Speaker 01:
It's just not right.

[00:29:53] Speaker 01:
And under administrative theories of administrative law, you've got to make it real clear if you're changing something that important.

[00:30:01] Speaker 01:
And there is a harmless error analysis.

[00:30:04] Speaker 01:
If the evidence here, even accepting it, doesn't change anything, it's harmless error not to discuss it in length.

[00:30:12] Speaker 01:
But here it was discussed the reasons are not germane.

[00:30:16] Speaker 01:
And the evidence actually, if it's credited, actually shows

[00:30:20] Speaker 01:
that he could not do full-time, medium-level work.

[00:30:25] Speaker 01:
And so I... Ms.

[00:30:26] Speaker 04:
Giannis, we've let you go over a little bit.

[00:30:28] Speaker 04:
I'll give you a few seconds to sum up if you need it.

[00:30:31] Speaker 01:
That's it, Your Honor.

[00:30:32] Speaker 01:
So I think that the case should be remanded for a new hearing.

[00:30:36] Speaker 04:
All right.

[00:30:36] Speaker 04:
Well, thank you very much, Ms.

[00:30:37] Speaker 04:
Giannis.

[00:30:37] Speaker 04:
Thank you to both counsel.

[00:30:39] Speaker 04:
That closes out our day today.

[00:30:40] Speaker 04:
We'll be back tomorrow, same time, same place, different cases.

[00:30:45] Speaker 04:
Thank you all.

[00:30:47] Speaker 04:
All rise.

[00:31:00] Speaker 01:
The court stands adjourned until tomorrow at 9 AM.

[00:31:03] Speaker 01:
Thank you.