[00:00:01] Speaker 03:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:04] Speaker 03:
We have two matters for argument today.

[00:00:06] Speaker 03:
And as I always say, there's no extra credit for using all your time in the Ninth Circuit.

[00:00:13] Speaker 03:
So if you make your points and we're not saying anything back to you, you can sit down.

[00:00:19] Speaker 03:
That's fine with me.

[00:00:20] Speaker 03:
All right, so first up, we'll call Gwendolyn Smith versus the commissioner.

[00:00:31] Speaker 02:
Thank you, Your Honors.

[00:00:32] Speaker 02:
Good morning.

[00:00:33] Speaker 02:
My name's Eric Slepien.

[00:00:34] Speaker 02:
I represent Gwendolyn Smith.

[00:00:37] Speaker 02:
I'm going to attempt to reserve two and a half minutes for rebuttal.

[00:00:40] Speaker 01:
Sure.

[00:00:40] Speaker 01:
Can you walk into the microphone a bit more?

[00:00:42] Speaker 01:
I'm having trouble hearing you.

[00:00:44] Speaker 02:
I think you said you had trouble hearing me, but I had trouble hearing you.

[00:00:48] Speaker 01:
Yes.

[00:00:50] Speaker 01:
That's what I said.

[00:00:50] Speaker 02:
Is that any better?

[00:00:51] Speaker 02:
Yes, much.

[00:00:52] Speaker 02:
Okay, great.

[00:00:54] Speaker 02:
So Ms.

[00:00:55] Speaker 02:
Smith testified before the Social Security Administration almost 10 years ago.

[00:01:01] Speaker 02:
And then she had an order of remand and had to do it again.

[00:01:04] Speaker 02:
So she testified again about five years after that.

[00:01:08] Speaker 02:
Both times at both hearings, a vocational consultant testified that her testimony would be consistent with disability.

[00:01:17] Speaker 02:
The administration chooses to disbelieve Ms.

[00:01:19] Speaker 02:
Smith.

[00:01:20] Speaker 02:
And the reasons that they're putting forth are not clear and convincing.

[00:01:24] Speaker 02:
And that's why we're asking this court to vacate the decision.

[00:01:29] Speaker 02:
The first thing the commissioner said was, this is a checkbox form.

[00:01:33] Speaker 02:
There's not enough adequate explanation.

[00:01:36] Speaker 02:
And the case law on this is clear.

[00:01:38] Speaker 02:
In fact, the district court previously held- You're talking about Dr. Staggerts.

[00:01:43] Speaker 04:
You're talking about hers?

[00:01:48] Speaker 04:
Which checkbox form are you talking about?

[00:01:51] Speaker 02:
I'm sorry.

[00:01:51] Speaker 02:
I'm talking about, I got mixed up.

[00:01:54] Speaker 02:
I'm going to backtrack.

[00:01:55] Speaker 02:
I'd like to first talk about symptom testimony.

[00:01:58] Speaker 02:
If, if I may, but I can also almost testimony.

[00:02:01] Speaker 01:
I'm sorry.

[00:02:02] Speaker 02:
The symptom testimony, the reporting of the pain complaints from your client, from my client.

[00:02:09] Speaker 02:
Okay.

[00:02:09] Speaker 02:
Okay.

[00:02:10] Speaker 02:
The one, the vocational consultant testified would preclude sustained work.

[00:02:15] Speaker 02:
Um, so the social security said that there's not enough objective data to support her complaints.

[00:02:23] Speaker 02:
One, there is objective data, but two, she suffers from impairments that don't cause objective abnormality.

[00:02:31] Speaker 02:
She has fibromyalgia.

[00:02:33] Speaker 02:
She has small fiber neuropathy.

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She has lupus.

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And these impairments aren't expected to cause neurological damage.

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In a previous order of the district court, they said, look, in fibromyalgia cases, you cannot reject testimony based upon a claim

[00:02:51] Speaker 02:
of a lack of objective abnormality for lack of neurological symptoms or orthopedic symptoms.

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This was affirmed in the district court decision in this case.

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It's also well settled in cases like Benaki and Revels.

[00:03:07] Speaker 02:
So I don't believe that that's a clear and convincing reason.

[00:03:11] Speaker 02:
The commissioner went on to say that they're not going to believe Ms.

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Smith because she traveled.

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And they referenced about four or five trips

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over a 10-year period of time.

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They never discussed why she traveled.

[00:03:28] Speaker 02:
Ms.

[00:03:29] Speaker 02:
Smith went to funerals for her father, for her sister.

[00:03:33] Speaker 02:
She went to visit a dying aunt, very ill aunt.

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And these trips are not easy for Ms.

[00:03:40] Speaker 02:
Smith.

[00:03:40] Speaker 02:
The records show that when she tries to travel, she has significant pain.

[00:03:45] Speaker 02:
The commissioner didn't like that she traveled to Flagstaff, a two and a half hour drive for which she likely had to stop and take breaks.

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And there's no reason why an individual should be unable to do limited travel at the risk of losing disability benefits if you're on benefit or never getting disability benefits.

[00:04:11] Speaker 02:
Third, the commissioner says there's a one and a half year gap in treatment.

[00:04:18] Speaker 02:
We know that that's not true.

[00:04:21] Speaker 02:
Unfortunately, there were records that weren't made part of this record.

[00:04:24] Speaker 01:
But what are we supposed to do about that?

[00:04:26] Speaker 01:
It's not in the record.

[00:04:28] Speaker 01:
You didn't catch it after the ALJ opinion.

[00:04:32] Speaker 01:
You didn't catch it after the commission.

[00:04:38] Speaker 01:
And I don't even think you caught it after the district court either, until after the district court, right?

[00:04:46] Speaker 02:
That is all accurate, Your Honor.

[00:04:48] Speaker 01:
So it is actually not in the record.

[00:04:52] Speaker 01:
Now there is some indication in the record that she had treatment during that period because there was some reference forward and reference back from which one might be able to infer that she had not in fact stopped treatment.

[00:05:06] Speaker 01:
As to actually getting it in the record, I don't see how you can.

[00:05:10] Speaker 02:
So, and let's take it that these records are not part of the record and they can't become part of the record.

[00:05:18] Speaker 02:
The truth of the matter is they denied benefits saying there was a year and a half gap in treatment and there wasn't.

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And the court should not turn a blind eye to something we know to be inaccurate.

[00:05:32] Speaker 02:
In terms of why the records are not

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here in as part of this record there are many reasons for that it's pointed out in my affidavit there was a mix-up with the medical facility and the photocopy place but

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This isn't a question of fault, because there's plenty of fault to go around.

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Should I have caught it?

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Yes, I probably should have caught it.

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Should my client have noticed it?

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Sure, my client should have noticed it.

[00:06:01] Speaker 02:
Should the judge have noticed it?

[00:06:03] Speaker 02:
Absolutely.

[00:06:04] Speaker 02:
As you indicated, there is evidence there was treatment during this period, and he never asked.

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He could have simply said to Ms.

[00:06:12] Speaker 02:
Smith, hey, it looks like there's a gap in treatment.

[00:06:16] Speaker 02:
Was there?

[00:06:16] Speaker 02:
And at that point, this would have gone away.

[00:06:19] Speaker 01:
The record would have been- There's a rule in immigration cases that if you're going to rely on something for credibility purposes, you have to raise it with the claimant.

[00:06:29] Speaker 01:
We've never had such a rule.

[00:06:31] Speaker 01:
these cases, in these social security cases, should we?

[00:06:35] Speaker 02:
I'm sorry, can you repeat that?

[00:06:37] Speaker 01:
There is a rule in immigration cases that if you're going to rely on some contradiction as to credibility, you have to raise that with the testifying petitioner in that instance.

[00:06:53] Speaker 01:
That's really what you're saying didn't happen here.

[00:06:55] Speaker 01:
I've never seen that rule in social security cases, but should there be one?

[00:07:01] Speaker 02:
One, yes, there should be.

[00:07:02] Speaker 02:
And two, social security policy rulings do put on the administrative law judge an obligation to inquire.

[00:07:12] Speaker 02:
And the case law says that an ALJ has a duty to fully and fairly develop the record even when the claimant is represented.

[00:07:23] Speaker 02:
I believe that's in Orne, but I'm not sure.

[00:07:27] Speaker 02:
That's from my recollection.

[00:07:28] Speaker 02:
But there's case law that says the judge has to develop the record.

[00:07:33] Speaker 02:
And we shouldn't just turn a blind eye to the fact that this decision's wrong.

[00:07:40] Speaker 04:
Let me ask you this.

[00:07:41] Speaker 04:
Let me turn Judge Berzahn's question to the standard that we apply in social security cases that's in our case law.

[00:07:48] Speaker 04:
As you said at the start, you said,

[00:07:51] Speaker 04:
You know, there has to be specific, clear and convincing reasons.

[00:07:56] Speaker 04:
And our case law goes on to say that the ALJ must identify which testimony here, you know, the ALJ rejects.

[00:08:05] Speaker 04:
And then we go further and we say the ALJ must explain which evidence in the record is inconsistent with that testimony or with that testimony and why.

[00:08:19] Speaker 04:
So could you give me a couple of examples that support that proposition?

[00:08:23] Speaker 02:
I can tell you, Your Honor, that the judge didn't do this in this record.

[00:08:30] Speaker 04:
Well, I'm asking you to give me an example.

[00:08:32] Speaker 02:
Okay.

[00:08:32] Speaker 02:
So in the example, the judge wrote that they were not going to believe Ms.

[00:08:38] Speaker 02:
Smith

[00:08:39] Speaker 02:
because she traveled.

[00:08:41] Speaker 02:
But Ms.

[00:08:41] Speaker 02:
Smith, and Ms.

[00:08:42] Speaker 02:
Smith testified that she had sitting, standing, walking, and lifting limitations.

[00:08:48] Speaker 02:
Nowhere in the record does the ALJ tie it together and say it's not possible for her to have these sitting limitations if she did A, B, C, and D. And therefore, with regard to the driving trip, he did say, I'm not sure how convincing it is, but he did say, well, she couldn't have driven that far.

[00:09:08] Speaker 01:
and have to stop every 20 minutes.

[00:09:11] Speaker 01:
Well, first of all, she could have, I suppose, and it was really 45 minutes, so she would have had to stop a couple, maybe two or three times on the trip.

[00:09:20] Speaker 01:
But that would be, in that instance, he was specific about what he was saying.

[00:09:27] Speaker 02:
Two things.

[00:09:28] Speaker 02:
One, that was brought up in regard to

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the treating physician opinion, not in regard to claim and testimony, but more importantly, cause I don't want to skirt the issue, your honor.

[00:09:41] Speaker 02:
Dr. Steingard said that she would need to take breaks every 25 to 45 minutes to 45 minutes.

[00:09:49] Speaker 02:
And the break would only have to be five to nine minutes.

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And I don't know how we can conclude that somebody can drive 40 minutes, take a nine minute break.

[00:10:02] Speaker 02:
drive 45 minutes or 30 minutes, take a nine minute break and last for two hours.

[00:10:09] Speaker 01:
Aside from disbelieving her, he also just refused to rely on the medical evidence that favored her.

[00:10:24] Speaker 01:
If we thought that those decisions were justified, can you still prevail?

[00:10:32] Speaker 01:
In other words, if he treated the medical evidence correctly, that Dr. Steingart and the others were internally contradictory and didn't justify their opinions, then what?

[00:10:50] Speaker 01:
Do you lose?

[00:10:52] Speaker 02:
No, absolutely not.

[00:10:54] Speaker 02:
And that's because the case law on this point is quite clear as well.

[00:10:58] Speaker 02:
An individual's reaction to pain is idiosyncratic.

[00:11:02] Speaker 02:
Once the individual establishes that the pain is reasonably related to the medically determinable impairments, which it is, you cannot disregard the degree of reported pain symptoms

[00:11:16] Speaker 02:
based upon a lack of objective.

[00:11:19] Speaker 01:
But doesn't she need some medical evidence that supports her degree of disability?

[00:11:26] Speaker 01:
Dr. Steingart, his check box is very confusing because he says she could work for eight hours.

[00:11:36] Speaker 01:
Then he says that she can sit for four hours and walk, stand for two hours.

[00:11:47] Speaker 01:
So either that means it doesn't make sense because there's only six hours, but he says she can work eight hours.

[00:11:52] Speaker 01:
And if she can work eight hours, um, then how is she disabled?

[00:11:57] Speaker 01:
Um, and, or it means that she can walk from, she can sit for four hours and walk for two hours and stand for two hours, but then why is she disabled?

[00:12:08] Speaker 01:
So his, there doesn't seem to be any affirmative medical evidence supporting her disability.

[00:12:13] Speaker 01:
That's would be improper for the.

[00:12:17] Speaker 01:
AL Jane not to fail to give way to.

[00:12:23] Speaker 01:
So if that's true, aside from whether her evidence is credited, does she need some medical evidence supporting her level of disability?

[00:12:41] Speaker 02:
Yes, and that evidence supporting the

[00:12:45] Speaker 02:
So you have to break it down into, does she have medical impairments expected to cause a degree of the limitations reported by the claimant?

[00:12:55] Speaker 02:
And everybody agrees that she does.

[00:12:58] Speaker 01:
So then the question is... So if he disregarded, if we didn't overturn his disregard of the three medical witnesses or documents that support her, she could still win on her own testimony.

[00:13:15] Speaker 02:
Correct, 100%.

[00:13:17] Speaker 02:
And that's because, again, you have to find reasons to disbelieve her, and a lack of objective data alone does not meet that standard.

[00:13:33] Speaker 02:
We have a clear and convincing standard for rejecting reported symptoms, and a specific and legitimate standard for rejecting medical opinion.

[00:13:44] Speaker 02:
And so these are independent of each other.

[00:13:47] Speaker 02:
And an individual can have disabling limitations, even if a doctor believes that it shouldn't be as bad as she says.

[00:13:59] Speaker 02:
It's idiosyncratic.

[00:14:01] Speaker 03:
All right.

[00:14:01] Speaker 03:
Thank you, counsel.

[00:14:02] Speaker 03:
I'm going to give you two minutes for rebuttal.

[00:14:05] Speaker 02:
Thank you very much.

[00:14:19] Speaker 00:
Good morning, Your Honor.

[00:14:20] Speaker 00:
Sorry, can you hear me sufficiently?

[00:14:22] Speaker 00:
Thank you.

[00:14:23] Speaker 00:
My name is Shay Bond and I represent the Commissioner of Social Security in this matter.

[00:14:27] Speaker 00:
I guess I would characterize the plaintiff's argument as really taking an alternative view of this record and I think the discussion here today establishes that.

[00:14:39] Speaker 00:
There could be a different way to look at this record that could support a disability claim, but the ALJ looked at the record

[00:14:45] Speaker 00:
and reached a reasonable conclusion that the evidence did not support the extent of the claimant's allegations or certain medical opinions that were unsupported by or inconsistent with this record.

[00:15:01] Speaker 01:
Let's assume that his discounting of the medical evidence favoring her was correct.

[00:15:08] Speaker 01:
This is what I was asking before.

[00:15:13] Speaker 01:
Could she still prevail on her own evidence if, as your opponent says, the medical evidence at least supported that she could be having the level of disability that she testified to and the reasons for discounting her evidence we thought were not supported by substantial evidence?

[00:15:40] Speaker 01:
Could she still prevail then?

[00:15:42] Speaker 01:
all of the favorable medical evidence in its detail were not given weight?

[00:15:52] Speaker 00:
Well, I don't think so.

[00:15:54] Speaker 00:
I apologize if I'm not understanding the question.

[00:15:57] Speaker 00:
But if she's attesting to I have these certain symptoms, and I guess you're saying you think that the ALJ's rationale is not... No, I'm saying that the three doctors filled out forms and said,

[00:16:11] Speaker 01:
how disabled, that they thought she was disabled and couldn't work and how much weight she could carry and how far she could walk and so on.

[00:16:20] Speaker 01:
If the ALJ was appropriate in not crediting that evidence, but medical evidence does support that there was something wrong with her back that could give her pain,

[00:16:35] Speaker 01:
if there are not separate reasons for just crediting her own evidence, can she still prevail?

[00:16:41] Speaker 01:
With no medical, with no credited medical evidence as to how disabled she was.

[00:16:47] Speaker 00:
So it sounds like you're saying that the ALJ has appropriately discounted the medical opinions.

[00:16:53] Speaker 00:
I'm just hypothesizing.

[00:16:54] Speaker 00:
If that were true.

[00:16:56] Speaker 00:
I understand you're hypothesizing.

[00:16:58] Speaker 00:
So we X those out.

[00:16:59] Speaker 00:
Right.

[00:17:00] Speaker 00:
So is there remain, the remainder of the evidence, does it support her allegations?

[00:17:03] Speaker 00:
Is that, is that

[00:17:04] Speaker 00:
Well, had she still prevailed in her own evidence, if... Well, no, because the ALJ also examined not just the medical opinions, but what was actually within the treatment records, and then also with her daily activities.

[00:17:19] Speaker 00:
Oh, I understand that.

[00:17:20] Speaker 01:
Yeah, so to be... So therefore, it's those reasoning, that reasoning that has to be separately inquired into, even if we...

[00:17:35] Speaker 01:
don't have a problem with his ruling about the medical evidence?

[00:17:40] Speaker 00:
Yes.

[00:17:40] Speaker 00:
So if you're saying about the ALJ's rationale for addressing her allegations, yes, yes.

[00:17:47] Speaker 00:
But the ALJ did address the allegations, is what I'm saying, and cited appropriate reasons supported by substantial evidence.

[00:17:54] Speaker 00:
So those reasons would include the daily activities that we were talking about today.

[00:17:59] Speaker 00:
And I would think that those daily activities would transverse whether the impairment is

[00:18:03] Speaker 00:
say her orthopedic impairment that's, you know, has more objective correlation or say the fibromyalgia impairment, because the, what she was alleging was that her capacity to sit,

[00:18:15] Speaker 00:
really was her problem.

[00:18:17] Speaker 00:
That's all over the treatment records where she would say, my tolerance for sitting is really what's bringing on this pain and standing is better for me.

[00:18:25] Speaker 00:
The ALJ addresses that in the decision and says, yeah, she said the sitting was a problem.

[00:18:30] Speaker 00:
I've assessed an RFC for light work.

[00:18:33] Speaker 00:
That encompasses a greater capacity to stand.

[00:18:37] Speaker 00:
And the reason also that I'm finding that her allegations about sitting are

[00:18:42] Speaker 00:
unsupported is that she does take these trips.

[00:18:47] Speaker 01:
He mentioned the other trips, but he really only relied on that one trip.

[00:18:52] Speaker 00:
The driving trip as an example.

[00:18:55] Speaker 00:
So we have the ability to take a long distance trip that would take several hours to complete.

[00:19:02] Speaker 00:
But how does he know she didn't stop?

[00:19:05] Speaker 00:
three times or two times what she would have had to stop.

[00:19:07] Speaker 00:
Well, it would have to have been a lot more than that if we're talking about a three-hour trip.

[00:19:12] Speaker 00:
I mean, if she's saying every 20 minutes, that's a significant amount of stopping and driving.

[00:19:18] Speaker 00:
She said she can only stay for 20 minutes?

[00:19:20] Speaker 00:
Yes, between like 20 and 30 minutes.

[00:19:24] Speaker 00:
You know, that and again, that's that's a reasonable reason to be going where she was going.

[00:19:29] Speaker 00:
And well, and so did the claimant in Tomasetti, the Tomasetti case.

[00:19:34] Speaker 00:
The claimant had actually taken international travel, I think was actually to visit a sick relative.

[00:19:40] Speaker 00:
And I think that was also maybe to care with a sick relative and actually had an exacerbation of his back pain during that travel.

[00:19:46] Speaker 00:
And this court found that it still was an appropriate reason for the court to rely on

[00:19:50] Speaker 00:
the travel itself to discount the back pain.

[00:19:53] Speaker 00:
So, you know, yes, I sympathize that the claimant had several deaths in the family for which she needed to travel, but we're talking about her capacity to actually do the sitting necessary to travel to these locations.

[00:20:09] Speaker 00:
And again, there can be an alternative view to evaluate her capacity to travel, but the ALJ's rationale

[00:20:20] Speaker 00:
was supported by this record.

[00:20:21] Speaker 00:
And I would also point that the travel wasn't the only reason.

[00:20:24] Speaker 00:
The LJ cited treatment, that treatment, you know, her symptoms had improved.

[00:20:28] Speaker 00:
She'd also alleged that she had headaches.

[00:20:30] Speaker 00:
The headaches improved with treatment.

[00:20:32] Speaker 00:
The LJ had also pointed out that the Percocet that she was taking for her physical pain, she had admitted that it was producing a 30% improvement in her pain.

[00:20:46] Speaker 00:
And when you look to the treatment records, which the ALJ also looked to the objective treatment records.

[00:20:51] Speaker 01:
Her doctors were also trying to get her off Percocet for good reasons.

[00:20:55] Speaker 01:
I'm sorry.

[00:20:55] Speaker 01:
Her doctors were trying to get her off Percocet and she was saying that the Percocet was making it hard for her to think and so on.

[00:21:03] Speaker 00:
And she did, I think, reduce down eventually.

[00:21:07] Speaker 00:
But the key point is that she was able to reduce her symptomology on a pretty consistent level of treatment, the Percocet being, I guess, the primary.

[00:21:19] Speaker 00:
And she's admitting that it's relieving her physical pain symptoms.

[00:21:24] Speaker 00:
So you start combining, and then when you look at the treatment records, you see that when she goes into her treatment providers, they're describing her as in no acute distress, you know, she has intact mentation, she's appropriately groomed.

[00:21:38] Speaker 00:
This is a person who was alleging that she was having 9 to 10, sometimes even higher than 10 plus pain on a pain scale.

[00:21:46] Speaker 00:
It's really inconsistent for an individual to be alleging that level of physical pain and not having any kind of objective correlation within these treatment records.

[00:21:56] Speaker 00:
And then, you know, the ALJs.

[00:21:58] Speaker 01:
That is inconsistent with the standard.

[00:22:00] Speaker 01:
I'm pardon?

[00:22:01] Speaker 01:
Isn't that inconsistent with the rule that she doesn't have to have medical evidence as to the level of pain?

[00:22:07] Speaker 00:
It doesn't have to be, you know, uh, an exact correlation, but I'd say the inconsistency is, is that no treatment provider is observing the claimant to be experiencing this very dramatic, extreme level of pain that she's alleging.

[00:22:21] Speaker 00:
I mean, when she's saying I'm over 10 out of 10 pain, that's the most excruciating pain you can imagine.

[00:22:27] Speaker 00:
She's never like, you know, um, you know, writhing in pain during her examination.

[00:22:33] Speaker 00:
She's not like,

[00:22:34] Speaker 00:
crying out in pain when she's doing the testing maneuvers.

[00:22:37] Speaker 00:
That's kind of a gross inconsistency that I see with this record.

[00:22:42] Speaker 00:
And all of that is consistent with the relatively benign physical and diagnostic test results that the ALG has also cited in the decision.

[00:22:55] Speaker 00:
So again, I think this is a record where

[00:23:00] Speaker 00:
You could have differing views.

[00:23:03] Speaker 00:
A different adjudicator may have come to a different outcome, but there is substantial evidence in this record to support the LJ's outcome.

[00:23:13] Speaker 01:
Are there any other questions?

[00:23:15] Speaker 01:
Well, one further question.

[00:23:17] Speaker 01:
What shall we do about this gap in the records?

[00:23:19] Speaker 01:
It is somewhat disconcerting to know that there actually was no gap in the records and nonetheless rely on the fact that there was.

[00:23:28] Speaker 00:
Well, we have the statute which says that when such evidence is presented at this late point in the litigation, the claimant has to have good cause.

[00:23:37] Speaker 00:
And we've explained a little more extensively in our motion to remand that the good cause element has not been met here.

[00:23:45] Speaker 00:
As was discussed during the opening argument, the reason of the gap in treatment was very evident in the ALJ's decision once it was issued.

[00:23:57] Speaker 00:
And the fact that the claim now is that we had no idea that's what the ALJ cited.

[00:24:02] Speaker 00:
as a consideration for this claim.

[00:24:04] Speaker 00:
We didn't know about it until after the district court decision.

[00:24:07] Speaker 00:
It kind of defies reality.

[00:24:10] Speaker 00:
I understand that they put out the request for the treatment records from the facilities, but to say that we didn't really even know that there was the gap until the circuit court litigation just really does not make sense.

[00:24:28] Speaker 00:
So the court should not consider

[00:24:31] Speaker 00:
that additional evidence because the good cause element hasn't been achieved.

[00:24:36] Speaker 00:
But alternatively, I just don't see anything within those records either that is inconsistent with what, the content of those records is inconsistent with what is stated in the LJ's decision.

[00:24:45] Speaker 01:
No, of course it is.

[00:24:46] Speaker 00:
You said that she didn't have... Well, the fact of the missing records, I agree, but when you look to the content... The fact that she didn't have, from which she inferred that she didn't have any

[00:24:57] Speaker 01:
treatment in that period, not just that there weren't records of treatment, but she didn't have any treatment.

[00:25:01] Speaker 00:
Right.

[00:25:01] Speaker 00:
But I would submit, Your Honor, if you read the ALJ, if I can make this last point, if you read the ALJ's decision and see how the ALJ addressed the Arizona Clinic treatment records and the commentary that in the conclusions that the ALJ draws from that evidence, if you were just to look at the evidence that plaintiff attached to her motion to this court, you can see that rationale and how the ALJ analyze it is the same.

[00:25:24] Speaker 00:
because the same findings, it's very consistent in those 18 months worth of records.

[00:25:29] Speaker 00:
There's the evidence of improvement, there's the evidence that she said that it was the sitting that was causing most of the problems, she was getting treatment without significant side effects, and that she was encouraged to actually be more active.

[00:25:43] Speaker 00:
All of those reasons are found in the ALJ's decision and they would apply equally to those records from that 18 month period.

[00:25:50] Speaker 00:
So it would be our position that

[00:25:52] Speaker 00:
Even if the court were to reach the issue, which it should not, or should not consider those records, it would not have harmfully impacted the outcome of the LJ's decision.

[00:26:03] Speaker 03:
All right.

[00:26:03] Speaker 03:
Thank you, counsel.

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

[00:26:04] Speaker 00:
I appreciate it.

[00:26:15] Speaker 02:
So Judge Berzon, you asked a very specific question about

[00:26:20] Speaker 02:
Dr. Steingart's opinion and if it provided for an eight hour day, Ms.

[00:26:27] Speaker 02:
Smith should be able to work.

[00:26:30] Speaker 02:
That's what the opinion is.

[00:26:31] Speaker 02:
I want to bring out an important factor here.

[00:26:35] Speaker 02:
As of the date last insured, Ms.

[00:26:38] Speaker 02:
Smith was 50 years of age.

[00:26:41] Speaker 02:
So if she was able to sit for six hours, stand or walk for two to three hours,

[00:26:49] Speaker 02:
Under the regulations, she's still disabled.

[00:26:52] Speaker 02:
It's not a question of can she do a full eight hour work day, but it's a question of how effectively and efficiently she can do work.

[00:27:02] Speaker 02:
And we have to look at the vocational consultant testimony.

[00:27:05] Speaker 02:
The grids are very clear.

[00:27:07] Speaker 02:
This judge found that Ms.

[00:27:10] Speaker 02:
Smith's impairments preclude her from performing past work.

[00:27:14] Speaker 02:
The burden shifts.

[00:27:15] Speaker 02:
If she could do a full range of sedentary work, under the grid rules, she's disabled.

[00:27:21] Speaker 02:
And so we have to look at vocational expert testimony, not just whether a doctor says she can work or she can't work, because he may believe she could do a sit-down job, but that doesn't mean she's not disabled under the regulations.

[00:27:36] Speaker 02:
And the other point that I'd like to bring... No, wait a minute.

[00:27:38] Speaker 01:
But he did say she could stand or walk for two hours.

[00:27:42] Speaker 02:
correct, which is consistent with sedentary work, not light work.

[00:27:47] Speaker 02:
And under the grid rules with that opinion, if she could sit six hours, stand or walk two hours, she wins.

[00:27:57] Speaker 02:
And I just want to make

[00:27:58] Speaker 02:
that point clear when we look at the opinion of treating physicians, because whether she can work or not is a vocational determination.

[00:28:07] Speaker 02:
And we have two vocational consultants that testified.

[00:28:10] Speaker 02:
And we also have the grid rules that dictate certain findings in certain situations.

[00:28:18] Speaker 02:
I see them out.

[00:28:19] Speaker 02:
Can I just address that gap, the record, just two sentences?

[00:28:24] Speaker 03:
Go for it.

[00:28:25] Speaker 02:
Two sentences.

[00:28:26] Speaker 02:
Thank you.

[00:28:27] Speaker 02:
So this court has authority to remand under sentence six, as opposed to sentence four, based upon an insufficient record.

[00:28:40] Speaker 02:
And so, yes, you may not look at the contents of that record, but the fact that they exist would justify relief under sentence six, as opposed to sentence four.

[00:28:54] Speaker 03:
All right, thank you.

[00:28:55] Speaker 03:
A lot of commas and semicolons, but it was two sentences.

[00:28:58] Speaker 03:
Appreciate that.

[00:29:00] Speaker 03:
Thank you for your argument and briefing.

[00:29:01] Speaker 03:
This matter is submitted.