[00:00:00] Speaker 03:
The first case today that we'll be having argument in is Ahern versus Omali.

[00:00:05] Speaker 03:
And it looks like we've got a repeat performance of yesterday with Counsel Yanich and Modi.

[00:00:11] Speaker 03:
So I think Mr. Yanich, you'll go first.

[00:00:15] Speaker 03:
And let us know again how much time you want to reserve for rebuttal.

[00:00:20] Speaker 03:
And you'll see I'm not very good at that.

[00:00:22] Speaker 03:
But you saw that yesterday.

[00:00:24] Speaker 03:
But we'll endeavor to do better today.

[00:00:28] Speaker 03:
Go ahead, Mr. Yanich.

[00:00:30] Speaker 02:
Thank you.

[00:00:31] Speaker 02:
May it please the court?

[00:00:32] Speaker 02:
My name is Eitan Janic.

[00:00:33] Speaker 02:
I'm representing Stephen Ahern in this appeal.

[00:00:37] Speaker 02:
And I would like to reserve at least two minutes of them.

[00:00:40] Speaker 02:
We'll see.

[00:00:41] Speaker 02:
Okay.

[00:00:44] Speaker 02:
Ahern has been unable to work since at least May, 2020 as a result of the functional effects of his impairments, which include major depressive disorder, generalized anxiety disorder, and borderline intellectual functioning.

[00:00:58] Speaker 02:
In this case, the ALJ erred by improperly failing to evaluate any of the medical evidence that was dated prior to January of 2020.

[00:01:09] Speaker 02:
And this includes medical opinions from Dr. Wilkinson, Dr. Riddell, and Dr. Wingate.

[00:01:16] Speaker 02:
There were three examining psychologists and a non-examining psychologist, Dr. Eisenhower, who reviewed some of their opinions.

[00:01:23] Speaker 02:
All of these psychologists describe findings which support the medical opinions and their opinions show that he is more limited than he was found to be by the ALJ.

[00:01:33] Speaker 02:
The ALJ didn't evaluate this evidence because most of it was part of a previous application which was denied, but it's still relevant, I think, to evaluating the current evidence and to show the longitudinal nature of his impairment.

[00:01:51] Speaker 02:
and to show that the current evidence is both supported and consistent.

[00:01:57] Speaker 02:
So then the ALJ aired, well one thing the ALJ did, she did not evaluate a 2019 evaluation by Dr. Wilkinson.

[00:02:07] Speaker 02:
That was never evaluated in any previous decision and she ignored it.

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She acknowledged it but did not discuss it.

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The ALJ then also aired by improperly rejecting Dr. Wilkinson's January 2020 medical opinion.

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She did not state any valid reason supported by substantial evidence from rejection of his opinion.

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In addition to that, the ALJ erred by improperly rejecting adherence testimony about its symptoms and limitations.

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None of her reasons were specific, clear, and convincing.

[00:02:39] Speaker 02:
And the ALJ erred by improperly failing to evaluate the lay evidence from an SSA interviewer

[00:02:46] Speaker 02:
of C. Han.

[00:02:48] Speaker 02:
Now, with regard to Ms.

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C. Han's statement, what was interesting about this, under social security regulations, the regulations that are in effect here, an ALJ is required to evaluate the observations of social security employees, such as C. Han.

[00:03:10] Speaker 02:
The ALJ acknowledged her statement but did not explain how she was evaluating it because under what I believe is a serious misinterpretation of the revised medical evidence regulations, the ALJ thought she did not have to discuss this or articulate how she was evaluating it.

[00:03:30] Speaker 02:
Now, often these observations don't say much.

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Sometimes it's just a few words here or there.

[00:03:39] Speaker 02:
But what's interesting about Seehand's statement is it's actually a narrative that discusses the difficulty that Ahern was having just answering basic questions, how his communication skills were very much impaired.

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And by itself, this doesn't prove that disability.

[00:04:01] Speaker 02:
But when it's considered along with Dr. Wilkinson's findings and opinion, and all of the previous psychologist's findings and opinions, it does confirm that AHRN has longstanding difficulty with basic communication skills.

[00:04:19] Speaker 04:
The residual functional capacity did take considerable account of mental difficulties, did it not?

[00:04:30] Speaker 02:
It did, but it didn't fully account for his problems.

[00:04:35] Speaker 02:
I think the most significant problem missing here is his pace.

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And that's part of what related to Seehand's observations, that he was very slow to understand things and to figure things out and had to have things repeated to him.

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And the same has been found by all of the psychologists who evaluated him, that his pace is off.

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And he even talked about he had lost jobs, several jobs, where his pace was off.

[00:05:08] Speaker 04:
Given the extent of the psychological evidence and mental health evaluations over

[00:05:15] Speaker 04:
over the years, I guess one of my questions is how much one lay interview really adds to the insight in drawing the fine lines or fine distinctions that sometimes have to be drawn in cases like this.

[00:05:32] Speaker 04:
between marked and moderate limitations and so on.

[00:05:36] Speaker 02:
That's a fair question.

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I think that the main significance of it is that it confirms, it's just one more viewpoint from one more observer that shows that he's not able to

[00:05:51] Speaker 02:
communicate on basic questions, basic things that you would expect a person could communicate about.

[00:05:58] Speaker 02:
I think the strongest evidence here is Dr. Wilkinson's opinion and the fact that his prior opinion one year earlier was completely disregarded.

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That opinion is very significant because it provides longitudinal support for Dr. Wilkinson's opinion about

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that Ahern could not sustain competitive work.

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He could not maintain normal pace and attendance.

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So I think that you're right that while that alone is not, it doesn't change the picture in a big way.

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It's one more piece of the puzzle that shows that the ALJ improperly rejected Dr. Wilkinson's opinions.

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court doesn't have any other questions, I would reserve my time for rebuttal.

[00:06:49] Speaker 03:
Thank you.

[00:06:50] Speaker 03:
All right, well thank you.

[00:06:51] Speaker 03:
We'll turn to the government's attorney.

[00:07:09] Speaker 01:
Good morning, may it please the court, Aseem Modi on behalf of the Commissioner of Social Security.

[00:07:14] Speaker 01:
This case, involving the latest in a series of disclaimers applications for social security disability benefits, involves a relatively narrow time period, May 2020 through October 2021.

[00:07:23] Speaker 01:
And within this nearly 18 month period, the claimant worked under the table for a friend performing yard work.

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He was searching for other employment and declared that he was ready to join the rat race after leaving work in 2012 for reasons unrelated to his allegedly disabling impairments.

[00:07:39] Speaker 01:
During this period, he cared for himself and his pet.

[00:07:42] Speaker 01:
He used a smartphone, socialized with friends, and carried out a range of performed household chores and errands, and carried out a range of hobbies and interests, including fishing, crocheting, reading, and streaming content on mobile devices.

[00:07:58] Speaker 01:
During this period, mental status examinations yielded largely unremarkable findings, and the claimant reported that he felt much better when he took psychotropic medication, and he admitted to his counselors that treatment reduced his symptoms to one out of 10 in terms of severity.

[00:08:13] Speaker 00:
So what are we to do with our holding in Reddick that claimants shouldn't be penalized for attempting to lead normal lives?

[00:08:21] Speaker 00:
And some of the things that you mentioned seem like an attempt to just lead a normal life.

[00:08:26] Speaker 01:
Well, Your Honor, I think as this Court has repeatedly held, I think most recently in Smart versus Kijikaze, but earlier in cases such as Molina, an ALJ can use the claimant's day-to-day functioning to evaluate claims of totally debilitating symptoms, which is that case here.

[00:08:42] Speaker 01:
The claimant is alleging that due to his psychiatric symptoms, he was largely unable to do anything in the course of the day, and I think that is what my opponent mentioned as well, that he was largely

[00:08:50] Speaker 01:
incapable of doing anything due to his symptoms, and the ALJ recently pointed out that the claimant's activities during this period were inconsistent with those allegations.

[00:08:58] Speaker 01:
That during this period, the claimant was working for a period of time.

[00:09:02] Speaker 01:
He had been working under the table for a friend doing yard work.

[00:09:05] Speaker 01:
That he was seeking out other employment.

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And he was engaged in a number of different hobbies and interests as well during this period.

[00:09:12] Speaker 01:
And so even if these activities do reflect a difficulty in the claimant's functioning, which is not in dispute here, the LJ did find the claimant had significant mental limitations, the claimant's capacity to carry out those activities should be reasonably viewed as inconsistent with his allegations of wholly debilitating symptoms and limitations.

[00:09:28] Speaker 01:
And that's the finding that the LJ made here, Your Honor.

[00:09:33] Speaker 04:
Dr. Modi, could I ask you to address the evaluation of Han's report on the interview and in particular to compare and contrast a little bit with the Connolly case from yesterday where you and Mr. Janic and we were all considering a similar issue.

[00:09:54] Speaker 04:
Is this ALJ's treatment of

[00:09:56] Speaker 04:
that lay evidence seems more cursory than we saw in the same ALJ's treatment of the evidence in Connolly.

[00:10:06] Speaker 01:
Well, Your Honor, I think a distinction can be made between two cases.

[00:10:09] Speaker 01:
Well, there's one commonality between both of these cases, which is that the ALJ, the same ALJ,

[00:10:16] Speaker 01:
address both of these observations from non-medical sources.

[00:10:20] Speaker 01:
And here, the ALJ plaintiff said that these observations were considered when determining the claimant's functional capacity.

[00:10:26] Speaker 01:
But in this case, unlike in Connolly, the ALJ didn't explain further what kind of persuasiveness was attached to these statements.

[00:10:35] Speaker 01:
And I think

[00:10:35] Speaker 01:
The distinction is that in Connolly, there, the claimant's friend had gone into some detail about what he perceived to be the claimant's symptoms and his functional limitations stemming from his impairments.

[00:10:47] Speaker 01:
And so there was, in essence, some kind of testimony about the claimant's functional limitations.

[00:10:52] Speaker 01:
Here, I don't think we have that, because we have one interview.

[00:10:57] Speaker 04:
We have one interview as opposed to a longitudinal relationship.

[00:11:01] Speaker 01:
Exactly, Your Honor.

[00:11:02] Speaker 01:
This is a telephone conversation that this agency employee had with this claimant during the intake of his Social Security disability claim.

[00:11:09] Speaker 01:
First of all, I want to emphasize that this employee's observations are entirely consistent with what the ALJ found.

[00:11:17] Speaker 01:
because this employee noted, and as the ALJ noted as well in the decision, that the claimant seemed to have limitations in his comprehension and concentration, and the ALJ agreed, and the ALJ found that the claimant had moderate limitations in understanding, remembering, and acquiring information, and had moderate limitations in his concentration, persistence, or pace.

[00:11:35] Speaker 01:
and accordingly restricted the claim to only simple routine work involving no fast-paced work and only simple work-related decisions.

[00:11:43] Speaker 01:
And so there's no inconsistency between what this agency employee observed and what the ALJ found regarding the claim's mental limitations.

[00:11:50] Speaker 01:
But I also want to

[00:11:52] Speaker 01:
Caution that I think that this court has noted recently in an I'll be in an unpublished case from about four months ago The case name is Bayness versus O'Malley and it dealt with similar observations from an agency employee and this court noted in in this order that

[00:12:09] Speaker 01:
Caution against attaching too much value to these kind of agency observations because they're made this the agency employees have very limited interaction with the claimant that this is a one-time conversation in this case it was done over the telephone and The the observations are done in a short narrative summary and so they should not be sort of viewed the same as some kind of You know detail assessment about the claimants impairments and what they can do.

[00:12:33] Speaker 04:
How do you spell the name of that case?

[00:12:34] Speaker 01:
Sure, Your Honor.

[00:12:35] Speaker 01:
The name is Baynes, B-A-Y-N-E-S-S.

[00:12:40] Speaker 01:
And the case number is 23-35246.

[00:12:44] Speaker 01:
I think it was the case from, I think the order came down in June of this year, Your Honor.

[00:12:53] Speaker 01:
Thank you.

[00:12:54] Speaker 01:
So I think, hopefully, Your Honor, that addresses your question regarding the alias assessment of Han's statement in this case.

[00:13:03] Speaker 01:
But going back to the points raised by my opponent, rather than engage with the evidence from the relevant time period here that underpins ALJ's non-disability decision, the claimant goes back in time and points to opinions that have no probative value in this case because they don't address the question of the claimants functioning during the period at issue, and that many of these opinions

[00:13:27] Speaker 01:
were considered and rejected by ALJs deciding claimants' earlier applications in decisions that are now administratively final and with one such order being affirmed by this case in a presidential decision.

[00:13:42] Speaker 01:
And to the extent that the claimant can point to any relevant medical evidence endorsing his allegations of marked mental limitations during the period at issue, the LJ reasonably pointed out that this opinion evidence suffer from the same deficiencies as the claimant's own subjective reporting, that it lacks support for the unremarkable mental status findings, the claimant's reported improvement with treatment, and the claimant's capacity to work and carry out other daily activities.

[00:14:08] Speaker 01:
So based on this record, the ALJ reasonably found the claimant was not disabled during this narrow time period that is issued here.

[00:14:14] Speaker 01:
And ultimately, claimant's dissatisfaction with the outcome of the ALJ's analysis is not valid grounds for reversal under this court's applicable standard review.

[00:14:23] Speaker 01:
So at this point, should the court have any other questions, I'll be happy to answer them.

[00:14:30] Speaker 03:
Seeing none, thank you very much.

[00:14:32] Speaker 01:
We ask that this court affirm the commission's final decision.

[00:14:34] Speaker 01:
Thank you, Your Honor.

[00:14:35] Speaker 03:
Come back to Mr. Yanich.

[00:14:39] Speaker 02:
Thank you.

[00:14:39] Speaker 02:
I want to first of all respond to opposing counsel's comments about Ahern claiming that he was incapable of doing anything.

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or that he had wholly debilitating symptoms.

[00:14:57] Speaker 02:
These are loaded words that aren't consistent with the record.

[00:15:01] Speaker 02:
Ehren never gave up here.

[00:15:03] Speaker 02:
He continued to try to figure out if there was something he could do.

[00:15:08] Speaker 02:
He even started working with DVR, and when that was not division of vocational rehabilitation,

[00:15:13] Speaker 02:
And he walked away from it because he just didn't believe it could work for him.

[00:15:17] Speaker 02:
He's got very limited understanding of being able to access services.

[00:15:23] Speaker 02:
He was living with his mother after he lost his job a decade ago.

[00:15:28] Speaker 02:
And after she passed away, he became homeless.

[00:15:31] Speaker 02:
He was homeless for four and a half years.

[00:15:33] Speaker 02:
He couldn't manage to even get himself a place to live or be housed.

[00:15:42] Speaker 02:
He's living in a kind of a community where they have a shared kitchen and shared

[00:15:48] Speaker 02:
bathing facilities, I believe, but he's got a small house and he's got a roof over his head and that helps him a lot.

[00:15:54] Speaker 02:
He is doing better than he was.

[00:15:56] Speaker 02:
The issue though is, is he doing well enough to be able to perform competitive work?

[00:16:01] Speaker 02:
And so the issue here is not, does he have wholly debilitating symptoms?

[00:16:05] Speaker 02:
No, he's probably employable if he were able to successfully hook up with DVR and get trained and get placed in a kind of a supported work environment.

[00:16:18] Speaker 02:
The problem is he's not able to just do competitive work because of the issues with his pace and with his comprehension.

[00:16:26] Speaker 02:
He would need an understanding employer and he would need special job placements.

[00:16:32] Speaker 02:
So there's nothing inconsistent with him seeking that and with the fact that he can't do competitive work.

[00:16:43] Speaker 02:
With regard to the moderate limitations in concentration persistence and pace found by the ALJ, that does not capture Ahern's actual limitations.

[00:16:55] Speaker 02:
He could not even understand how to answer basic questions from a social security employee about work he'd done and things like that and just who his doctors were, who he sees.

[00:17:09] Speaker 02:
It was just too complicated for him.

[00:17:13] Speaker 02:
Finally, the fact that we rely to a great extent in this case on psychological evaluations that predate the current application is to the nature of social security disability adjudication.

[00:17:35] Speaker 02:
opinion after opinion after opinion after opinion after opinion of every single examining psychologist that ever examined Ahern in the record.

[00:17:46] Speaker 02:
And they all say he's got marked limitations, marked functional limitations, not moderate, marked.

[00:17:52] Speaker 02:
And these were rejected last time, and now here he is.

[00:17:56] Speaker 02:
He's not gotten any, you know, he's gotten a little better, but he's basically the same person, and he's, once again, we've got two more psychological evaluations from an examining psychologist that says the same thing.

[00:18:09] Speaker 02:
And, you know, I think that all those previous evaluations are significant because they support the current ones.

[00:18:19] Speaker 02:
I therefore do ask that you remand this case for a new hearing.

[00:18:23] Speaker 03:
All right.

[00:18:24] Speaker 03:
Thank you, Mr. Yanich.

[00:18:25] Speaker 03:
Thank you to both counsel for your argument today.

[00:18:27] Speaker 03:
And this case will be submitted as of today's date.