[00:00:03] Speaker 04:
Thank you, Counsel.

[00:00:05] Speaker 02:
Thank you.

[00:00:05] Speaker 02:
Good morning, Your Honors.

[00:00:07] Speaker 02:
My name is Eric Slepien.

[00:00:08] Speaker 02:
I'm appearing on behalf of Appellant Walsh.

[00:00:12] Speaker 02:
I'm hoping to reserve four minutes for rebuttal.

[00:00:15] Speaker 04:
Counsel, please be reminded that the time shown is your total time remaining.

[00:00:19] Speaker 04:
I see it.

[00:00:22] Speaker 02:
Not easy to see while we're talking, but I will do my best.

[00:00:27] Speaker 02:
Your Honors, my client seeks relief for multiple reasons, but one of which

[00:00:33] Speaker 02:
is the fact that the ALJ issued a decision that does not reconcile findings of fact and conclusions of law that became final.

[00:00:44] Speaker 02:
Specifically, there was a decision that found my client disabled as of February 24, 2015.

[00:00:51] Speaker 02:
The question is, do those restrictions from that decision relate back three and a half weeks?

[00:01:00] Speaker 03:
Well, but if you look at that,

[00:01:02] Speaker 03:
decision, I mean, the evidence that the ALJ relied on there consists of, um, events that happened in March of 2015, an examination in 2017, an examination in 2018, um, and then, uh, and another written evaluation done in February of 2018 and then behavioral observations from March, 2015.

[00:01:30] Speaker 03:
All of this that's in here is post February 24th.

[00:01:35] Speaker 03:
So I don't see how there's an immediate inconsistency between saying that she was disabled as of February 24th, 2015.

[00:01:47] Speaker 03:
I mean, if, if this decision had reached back and said, you know, this has been going on for years and I find it, that would be a direct inconsistency, but everything is,

[00:01:58] Speaker 03:
All post the date, so I don't see how there's the inconsistency you're claiming.

[00:02:03] Speaker 02:
So that's an excellent question, your honor.

[00:02:05] Speaker 02:
And I would start by telling you that in the case of Smith v Bowen, there's a requirement that a relate back analysis be performed when there's evidence of restrictions and limitations that post date the DLI.

[00:02:21] Speaker 02:
In addition to that, Your Honor, and very importantly in this case, is this significant evidence of those same exact limitations reaching back.

[00:02:32] Speaker 02:
So let me focus on the off-task provision and the absentee rate that was found in existence as of February 25th of 2015.

[00:02:44] Speaker 02:
Dr. Hawks rendered an opinion in 2013 at page

[00:02:50] Speaker 02:
435 of the record indicating that Ms.

[00:02:54] Speaker 02:
Walsh had anxiety with heart palpitations, chest pains, fear of dying, impaired concentration and interrupted sleep.

[00:03:04] Speaker 02:
Dr. Hawks basically said that Ms.

[00:03:08] Speaker 02:
Walsh would be off task more than 11% of the workday and that was written in

[00:03:19] Speaker 02:
2013 at page 435.

[00:03:22] Speaker 02:
In addition to the record supporting it, we have more opinions of restrictions of being off task.

[00:03:31] Speaker 02:
There are two more.

[00:03:32] Speaker 02:
One in 2013, which was from Dr. Fierro at page 515, and the other is in 2014 from Dr. March at page 578.

[00:03:47] Speaker 03:
discussed both of those.

[00:03:49] Speaker 03:
So why are the ALJ's reasons for not finding those to be persuasive, not supported by substantial evidence?

[00:03:58] Speaker 02:
So first, let's talk about Dr. Hawks.

[00:04:02] Speaker 02:
Okay.

[00:04:03] Speaker 02:
You had indicated that the ALJ found reasons to disregard the opinion.

[00:04:08] Speaker 02:
So let's go to that page of the judge's decision and see what she wrote.

[00:04:14] Speaker 02:
At 686, she writes she assigns little weight to the opinion of Dr. Hawks because there was improvement with medication.

[00:04:25] Speaker 02:
She cites 4F.

[00:04:26] Speaker 02:
4F is 50 page long and it covers two and a half year periods of treatment.

[00:04:34] Speaker 02:
I have no idea what record the judge was looking at when she said there was improvement, but let's talk about improvement itself.

[00:04:46] Speaker 02:
Ms.

[00:04:46] Speaker 02:
Walsh was found disabled as of February of 2015.

[00:04:48] Speaker 02:
The report's listed in 2014.

[00:04:53] Speaker 02:
If she improved after 2014 to 2015, that improvement wasn't enough to get her back to work.

[00:05:01] Speaker 02:
We know that because the commissioner found as of February 2015, she needed to be off task, she would have an absentee rate, and she was disabled.

[00:05:13] Speaker 02:
And so just saying 4F is insufficient.

[00:05:20] Speaker 02:
I want to talk additionally about the reviewer opinions that the judge looked at.

[00:05:27] Speaker 02:
These are state agency opinions.

[00:05:30] Speaker 02:
So there are two of them, Dr. Cochran and Dr. GRL.

[00:05:37] Speaker 02:
Both of these physicians indicated

[00:05:40] Speaker 02:
during the period of time that we're talking to, talking about, Ms.

[00:05:44] Speaker 02:
Walsh would have certain limitations, including avoid all public contact and only occasional interaction with supervisors.

[00:05:57] Speaker 02:
And that's, so in the first decision this judge wrote, she found those limitations credible.

[00:06:08] Speaker 02:
She found the report

[00:06:09] Speaker 02:
fully supported, and she assessed restrictions that included limited work with supervisors.

[00:06:18] Speaker 02:
Then we end up on remand, and I have a hearing before the same ALJ, and the vocational consultant testifies, and I say to the vocational consultant, let's assume that Ms.

[00:06:32] Speaker 02:
Walsh cannot do tandem work with coworkers and supervisors.

[00:06:39] Speaker 02:
as those two doctors had stated.

[00:06:42] Speaker 02:
The vocational consultant came back and said there'd be no work.

[00:06:46] Speaker 02:
And that's at page 721 of the transcript.

[00:06:50] Speaker 02:
Now, in this new decision, there's not a single restriction relating to Ms.

[00:06:58] Speaker 02:
Walsh's ability to deal with supervisors.

[00:07:00] Speaker 02:
Why'd it go away?

[00:07:02] Speaker 02:
Why did she reject the opinion of the own state agency physicians

[00:07:09] Speaker 02:
And the answer is, we read this decision, I have no idea.

[00:07:14] Speaker 02:
Not a single piece of evidence was cited to support it.

[00:07:18] Speaker 02:
She says those limitations are unsupported, but she doesn't tell us why.

[00:07:24] Speaker 02:
And when we talk about a disability claim, especially where we're talking about a three and a half week period of time on a mental impairment,

[00:07:36] Speaker 02:
Ms.

[00:07:36] Speaker 02:
Walsh was in treatment for years being treated for anxiety.

[00:07:41] Speaker 02:
She had difficulty affording treatment.

[00:07:43] Speaker 04:
The fact that she was treated didn't mean that she was disabled.

[00:07:47] Speaker 04:
Everyone who was treated is not necessarily disabled.

[00:07:51] Speaker 02:
Correct.

[00:07:51] Speaker 02:
And that's why we have to look at the evidence.

[00:07:54] Speaker 02:
That's why I'm pointing to the opinion of Dr. Fierro, who says that my client would be off task more than 15% of a workday.

[00:08:04] Speaker 02:
I'm pointing to Dr. Hawks, who says that my client would be off 15% of a work day.

[00:08:10] Speaker 02:
I'm pointing to Dr. March, who's saying that my client would be off task more than 15% of the work day.

[00:08:18] Speaker 02:
And I'm pointing to the decision of the commissioner of social security that says three and a half weeks later, my client would be off task.

[00:08:27] Speaker 04:
That was based on additional evidence.

[00:08:29] Speaker 04:
But let me ask you about Dr.

[00:08:31] Speaker 04:
March, didn't the ALJ say that the doctor relied on subjective complaints and that there was a checkbox format, there was no physical diagnoses delineated, and there were no reasons given for the physical limitation that was assessed?

[00:08:53] Speaker 04:
Didn't the ALJ say those things?

[00:08:55] Speaker 02:
The ALJ said those things without offering citations.

[00:09:01] Speaker 04:
But the ALJ prior to saying those things had gone through the medical evidence and listed everything.

[00:09:08] Speaker 04:
And so are you saying the ALJ had to go back again and repeat everything it had repeated in the preface to the, to making its credibility assessments?

[00:09:22] Speaker 02:
The answer to that question is yes.

[00:09:25] Speaker 02:
But I want to expand on it.

[00:09:26] Speaker 04:
So tell me a case that says if the ALJ has set out

[00:09:30] Speaker 04:
all of the medical evidence and then refers back to it, it must repeat that evidence.

[00:09:36] Speaker 04:
What case is that?

[00:09:38] Speaker 04:
I believe that it would be in Garrison.

[00:09:42] Speaker 04:
Give me your best case for the proposition that the ALJ must repeat its review of the medical records in the process of weighing that evidence.

[00:09:56] Speaker 04:
What case is that?

[00:09:57] Speaker 02:
So the case law doesn't say repeat.

[00:10:00] Speaker 02:
The case law says that the ALJ has to tie the evidence into the finding.

[00:10:06] Speaker 02:
And I believe it would be garrison.

[00:10:08] Speaker 04:
Now here- Well, but why wouldn't that be tying the evidence into the finding if the ALJ referenced back to Dr. March's opinion and said why that opinion was not entitled to great weight?

[00:10:25] Speaker 04:
Why isn't that relating it back?

[00:10:27] Speaker 02:
First, I'm going to respond by, let's take a look at some of the citations that the judge offers, okay?

[00:10:38] Speaker 02:
At 684, you can see that there's a discussion of the records that the judge says supports severe mental findings, but not sufficient enough for disability.

[00:10:52] Speaker 04:
And these are the- Are you talking about Dr. March's opinion?

[00:10:56] Speaker 04:
I'm asking you specifically about Dr. March.

[00:11:00] Speaker 02:
So what's your answer to that question?

[00:11:03] Speaker 02:
So, so I can't specifically to Dr. March, if, if the argument that the commissioner is making is we have to go back and look what was written earlier, then that's what I'm doing.

[00:11:16] Speaker 04:
Yes.

[00:11:16] Speaker 04:
We look at the entire, we look at the entire decision to determine whether or not we can ascertain the reasoning of the ALJ.

[00:11:25] Speaker 02:
Correct.

[00:11:26] Speaker 02:
And that's what I want to point out.

[00:11:28] Speaker 02:
So if you look at 684, these are her site, exhibit 16F, exhibit 12F, exhibit 19F, exhibit 14F, exhibit 10F, exhibit 17F.

[00:11:43] Speaker 02:
Where's a page number?

[00:11:46] Speaker 02:
Where's a site?

[00:11:47] Speaker 02:
This is a thousand page record.

[00:11:50] Speaker 02:
You can't just say, I deny it based upon the mental health records appearing

[00:11:55] Speaker 02:
in these 150 pages.

[00:11:58] Speaker 02:
That's not the type of citations that are required.

[00:12:02] Speaker 02:
So you're saying she couldn't cite to an exhibit?

[00:12:10] Speaker 02:
Yes, she has to pinpoint her citations to tell us

[00:12:14] Speaker 02:
What evidence supports and detracts.

[00:12:18] Speaker 02:
And then she has to provide an analysis, resolving conflicts.

[00:12:22] Speaker 02:
And she has to explain how those specific conflicts were resolved.

[00:12:26] Speaker 02:
That's exactly what she needed to do.

[00:12:29] Speaker 02:
But she didn't.

[00:12:32] Speaker 02:
And that's why we're here.

[00:12:38] Speaker 02:
I see I have two and a half minutes left.

[00:12:40] Speaker 02:
So if you don't have any other questions, I'm going to reserve.

[00:12:43] Speaker 04:
Thank you, counsel.

[00:12:44] Speaker 02:
Thank you.

[00:12:54] Speaker 01:
Good morning, Your Honors.

[00:12:55] Speaker 01:
Joseph Langhammer on behalf of the Commissioner.

[00:12:59] Speaker 01:
I want to start by addressing the argument that my colleague, Mr. Sleppian, made this morning about how we can't reconcile this later decision by ALJ Armbruster on a subsequent application that the claimant filed with the applications that are before this Court that ALJ Bucci decided.

[00:13:19] Speaker 01:
And Judge Collins, you asked about

[00:13:22] Speaker 01:
the fact that there was a different record in front of ALJ Armbruster during that that he looked at

[00:13:30] Speaker 01:
for that subsequent application.

[00:13:31] Speaker 01:
And that's absolutely correct.

[00:13:33] Speaker 01:
What we see in ALJ Armbruster's decision is him reviewing the fact that the claimant was hospitalized, unfortunately, in March of 2015 for an exacerbation of her symptoms.

[00:13:48] Speaker 01:
And following that, ALJ Armbruster also had two additional medical opinions from 2018

[00:13:54] Speaker 01:
that he looked at and assessed in favor of finding disability during that subsequent period.

[00:14:01] Speaker 01:
Now, the ALJ decision in front of this court is the one that ALJ Bucci issued, which was a very different record.

[00:14:12] Speaker 01:
We have multiple findings throughout her treatment history from 2010 up to February of 2015.

[00:14:21] Speaker 01:
that demonstrated that the claimant was functioning relatively well.

[00:14:25] Speaker 01:
She was reporting improvement to an extent.

[00:14:28] Speaker 01:
The March 2015 incident that required the claimant to check into a treatment facility was this increase in thoughts of self-harm.

[00:14:38] Speaker 01:
We don't have that in this record.

[00:14:40] Speaker 01:
We have repeated instances of the claimant reporting that she was not feeling suicidal or feeling like she was going to be self-harming.

[00:14:49] Speaker 01:
And in fact, on February 20th,

[00:14:52] Speaker 01:
2015, this was just four days before the close of the relevant period in this particular case.

[00:15:00] Speaker 01:
Walsh saw Jenna Luna, who noted that the claimant was a low risk.

[00:15:06] Speaker 01:
She reported to Jenna Luna that she was not feeling suicidal and that she would never harm herself.

[00:15:13] Speaker 01:
So that's the record this ALJ had before her when she was deciding this case.

[00:15:20] Speaker 01:
So the fact that the agency later found the claimant to be disabled

[00:15:24] Speaker 01:
on a different record does not relate back to this period.

[00:15:29] Speaker 01:
And in fact, ALJ Armbruster in his decision said he was not touching the earlier determination because that was pending in federal court.

[00:15:37] Speaker 01:
And I think I would just take a moment to explain to the court kind of how these disability applications work to sort of

[00:15:43] Speaker 01:
explain why did the ALJ find the claimant not disabled on one day and then disabled on the very next day.

[00:15:51] Speaker 01:
And the reason for that is just sort of the way these applications are filed.

[00:15:55] Speaker 01:
So when the claimant filed the applications before this court, she filed those in 2013 and the ALJ initially found the claimant not disabled.

[00:16:05] Speaker 01:
That case came back down on remand from district court.

[00:16:09] Speaker 01:
Now, as those district court proceedings were pending, the claimant filed this new application that was ultimately decided in her favor, and she pretty much had to use the February 24, 2015 date as the alleged onset date because there was already a final decision on the books that found the claimant not disabled.

[00:16:31] Speaker 01:
So that, it was, she herself alleged that she became disabled on February 24, 2015.

[00:16:38] Speaker 01:
And that was just pretty much as a consequence of the fact that we had an ALJ decision, a final decision, but that was being litigated in district court.

[00:16:47] Speaker 01:
So that sort of explains, I think, why there are two separate periods.

[00:16:51] Speaker 01:
So in this case, we do have the ALJ looking at the relevant records and finding the claimant not disabled.

[00:16:58] Speaker 01:
And that's a reasonable finding.

[00:17:01] Speaker 01:
This morning, Walsh argued that the ALJ improperly rejected

[00:17:06] Speaker 01:
The medical opinions of Hawkes and Fierro, the claimant has waived that argument.

[00:17:11] Speaker 01:
She didn't make that argument in her opening brief or in her reply brief.

[00:17:16] Speaker 01:
She made the argument in district court in this case, and the district court rejected that argument.

[00:17:23] Speaker 01:
So this court should not consider the claimant's arguments this morning that the ALJ somehow erred in rejecting those two doctors' opinions.

[00:17:32] Speaker 01:
The LGA gave valid reasons for that finding on page 686.

[00:17:37] Speaker 01:
And as I mentioned, the district court rejected that argument and Walsh has not raised that issue on appeal.

[00:17:43] Speaker 03:
Can you address the specific issue the council raises about the change in the residual function assessment between her first decision and the decision on remand and that the supervisor limitation disappears?

[00:18:02] Speaker 01:
Absolutely.

[00:18:03] Speaker 01:
So this first decision, I think it was issued in 2015.

[00:18:08] Speaker 01:
This was the February 23rd, 2015 ALJ decision that was ultimately remanded.

[00:18:15] Speaker 01:
And now we have the more current one from 2019, I believe.

[00:18:22] Speaker 01:
That first ALJ decision was vacated.

[00:18:26] Speaker 01:
It has no binding effect anymore.

[00:18:30] Speaker 03:
I'm not saying it's binding, but the point is that you assess the evidence and you find this restriction and you put it into the decision and then it disappears and the restriction would make a big difference to the outcome.

[00:18:44] Speaker 03:
There kind of needs to be an explanation for why it disappeared.

[00:18:48] Speaker 01:
Absolutely.

[00:18:50] Speaker 01:
For one, the ALJ in this case took additional evidence on remand.

[00:18:54] Speaker 01:
There was a new hearing that the ALJ heard additional testimony from the claimant.

[00:19:00] Speaker 01:
So we don't have the exact same records that the ALJ in 2013 had.

[00:19:06] Speaker 01:
or I'm sorry, 2015 in issuing that decision and then fast forward to the current decision.

[00:19:11] Speaker 01:
There were different records.

[00:19:14] Speaker 01:
She took additional evidence.

[00:19:16] Speaker 01:
And in addition to that, the ALJ did, contrary to the arguments that Walsh made, the ALJ did provide reasons for why, specifically addressed this limitation in the current decision, this limitation to the doctor's findings that

[00:19:37] Speaker 01:
the claimant could have no contact with the public and limited supervisor interaction.

[00:19:42] Speaker 01:
Here, the ALJ on page 685, and again, this is the decision that matters.

[00:19:50] Speaker 01:
It's not the vacated one.

[00:19:52] Speaker 01:
That one is, and I understand your Honor's question, but I would focus the Court on the decision that's being appealed.

[00:19:58] Speaker 01:
On 685, it would be one thing if the ALJ just issued two opinions

[00:20:06] Speaker 01:
talk at all about this change and why there were, you know, why she was changing the RFC.

[00:20:11] Speaker 01:
But here she says, and I'm in the middle of page 685, while their opinions remain generally supported by the objective and clinical evidence of record, the limitation to avoid all public contact and only occasional interactions with supervisors is not supported.

[00:20:28] Speaker 01:
So that means the ELJ is talking about, in that former clause of the sentence,

[00:20:33] Speaker 01:
the objective and clinical evidence.

[00:20:36] Speaker 01:
And we see the ALJ, as Judge Rollinson pointed out, the ALJ did go through a very methodical review of what the objective medical evidence showed.

[00:20:48] Speaker 01:
It showed just on page 684, right before she talks about the doctor's opinions, she's pointing to instances where the claimant is making good eye contact.

[00:20:59] Speaker 01:
That's something that goes towards the claimant's ability to interact socially.

[00:21:02] Speaker 03:
But I'm looking at this paragraph, I mean, did the limitation in the prior decision, you know, where it says minimal interactions with supervisors on page 30, was that based on the, what was the basis of that in the first ruling?

[00:21:27] Speaker 03:
Was it the same state agency opinions?

[00:21:31] Speaker 01:
I believe it was.

[00:21:33] Speaker 01:
I think the ALJ did mention where Your Honor is referring to those state agency doctor's findings.

[00:21:41] Speaker 01:
She did give those state agency doctors weight in that first opinion.

[00:21:45] Speaker 03:
But then looking at the current one, she just seems to reach the opposite conclusion, but she doesn't really say why or even seem aware that it's contrary to what she had said before.

[00:21:58] Speaker 03:
And then when she goes on to say something about the new evidence, the only thing that she says is that the new evidence actually cuts the other way in terms of limitations.

[00:22:09] Speaker 03:
Additional evidence shows the claimant is more limited than determined by the state agency consultant.

[00:22:14] Speaker 03:
So she's not giving a basis or articulating a basis for why she flipped on her evaluation of this item of evidence.

[00:22:27] Speaker 03:
in doing so, took away the limitation that could change the whole result of the case.

[00:22:33] Speaker 01:
A couple of responses to your question.

[00:22:35] Speaker 01:
So I think with respect to where she said that she's finding the claimant more limited than the state agency consultants found, that's specifically with respect to the doctors that looked at the claimant's physical functioning at sort of the bottom of the page there.

[00:22:50] Speaker 01:
We see she's, you know, the LJ is citing these normal, sort of normal

[00:22:55] Speaker 01:
exam findings about neck pain.

[00:22:58] Speaker 01:
So that goes to that point.

[00:23:00] Speaker 03:
But my point is that the only delta she's identifying has nothing to do with this flip.

[00:23:07] Speaker 01:
Well, I think in addition to the fact that the ALJ did, again, talk about how the objective and clinical evidence that she just went through

[00:23:16] Speaker 01:
supported not adopting these state agency doctor's findings in full.

[00:23:22] Speaker 01:
She also does refer to the B criteria in that second sentence.

[00:23:26] Speaker 01:
What that's referring to is earlier in the decision at step three, the ALJ talks about

[00:23:35] Speaker 01:
this B criteria, which is how you evaluate whether or not a claimant is per se disabled under certain listings that Social Security has issued about various impairments.

[00:23:47] Speaker 01:
And when we go back to that, which the LJ is referring to here, when we go back to that, the LJ cites even more evidence about the claimant's social limitations.

[00:23:59] Speaker 01:
At the bottom of page 681,

[00:24:01] Speaker 01:
The LJ finds that the claimant has moderate limitation in interacting with others and goes on to cite additional records.

[00:24:07] Speaker 01:
She recognizes that the claimant has been withdrawn and suspicious at times, but she's also making good eye contact and she's indicating fairly good relationships with family members.

[00:24:17] Speaker 01:
So I think the point I want to convey, Judge Collins, is if this were a case where

[00:24:24] Speaker 01:
We've got two ALJ decisions, and there is a sharp change in the RFC with no additional explanation as to why.

[00:24:34] Speaker 01:
the ALJ is changing course somewhat.

[00:24:39] Speaker 01:
That would be a more difficult case.

[00:24:42] Speaker 01:
But here we do have the ALJ explaining why she's not including those additional limitations.

[00:24:48] Speaker 03:
And I would also emphasize... Do you think it's this cross-reference to the earlier discussion on 681 of the B criteria?

[00:24:57] Speaker 01:
Could you repeat the question?

[00:24:58] Speaker 03:
And so you're saying that explanation is provided by her cross-reference?

[00:25:03] Speaker 03:
to the earlier discussion of the B criteria on page 681?

[00:25:07] Speaker 01:
I do.

[00:25:08] Speaker 01:
685 talks about it, references the B criteria, and we can see that the ALJ is considering that B criteria again in evaluating

[00:25:18] Speaker 01:
the state agency doctor's findings.

[00:25:20] Speaker 01:
And again, and what I want to emphasize here on this point as well is that this is not a case also where the LJ just wholly rejected the fact that the claimant had social limitations.

[00:25:31] Speaker 01:
The LJ included some pretty significant social limitations in the RFC.

[00:25:37] Speaker 01:
No working in tandem with coworkers,

[00:25:39] Speaker 01:
minimal in-person public interaction, simple judgment.

[00:25:44] Speaker 01:
So these are finding, the ALJ is not rejecting this idea that the claimant is, has absolutely no social limitations.

[00:25:54] Speaker 01:
The ALJ is including limitations just not quite to the extent that the state agency doctors found and the ALJ provided enough rationale.

[00:26:03] Speaker 01:
One of the things that

[00:26:05] Speaker 01:
the claimant argued was, you know, that the ALJ pretty much has to repeat verbatim all of the analysis that is in the earlier decision.

[00:26:17] Speaker 01:
And Judge Rawlinson, you asked for a case requiring ALJs to do that.

[00:26:22] Speaker 01:
There isn't a case.

[00:26:23] Speaker 01:
In fact, the case law from this court says the exact opposite.

[00:26:27] Speaker 01:
I'd refer this court to Kaufman, which says that when we're looking at ALJ decisions, we're looking at all of the pages.

[00:26:34] Speaker 01:
And in Kaufman, for example,

[00:26:35] Speaker 01:
What happened in that case was that came up to the court through 59E that the district court reversed itself on because as the commissioner pointed out, in that case, when the ALJ referenced activities of daily living, the district court originally said, well, we don't know what those activities of daily living are.

[00:26:52] Speaker 01:
But the district court reversed itself on that because earlier in the decision,

[00:26:59] Speaker 01:
the ALJ actually spelled out what those were.

[00:27:01] Speaker 01:
So we're not looking, we're not confined to just one tiny portion of the ALJ's decision.

[00:27:07] Speaker 01:
And that rationale applies here, too, because the ALJ did reference lots of medical findings, including an instance where the claimant said that therapy was actually helping and socializing was helping her.

[00:27:20] Speaker 01:
So again, that sort of cuts against this idea that she has these drastic social limitations.

[00:27:26] Speaker 01:
Again, the ALJ accounted for those.

[00:27:28] Speaker 01:
to the extent that the record supported it.

[00:27:30] Speaker 00:
Council, what's your position on Council's assertion that there should be pinpoint sites to these exhibits that were not included?

[00:27:37] Speaker 01:
I disagree.

[00:27:39] Speaker 01:
It's interesting because Walsh has argued today that this record includes hundreds of pages.

[00:27:47] Speaker 01:
How can we possibly know what the ALJ was referring to when talking to

[00:27:53] Speaker 01:
Dr. Moch's opinion, the LJ right here says, for instance, this own provider consistently noted the claimant appeared healthy and in no acute distress, citing exhibit 11F and 17F.

[00:28:09] Speaker 01:
Each of those exhibits is nine pages.

[00:28:11] Speaker 01:
So we can look at the nine pages

[00:28:15] Speaker 01:
the total of 18 pages that the ALJ cited here, and easily see, and the commissioner cites these pages in his brief, we can see what the ALJ is talking about here.

[00:28:25] Speaker 01:
We don't need pin sites for every citation that the ALJ refers to.

[00:28:31] Speaker ?:
Thank you.

[00:28:32] Speaker 04:
All right.

[00:28:32] Speaker 04:
Thank you, counsel.

[00:28:33] Speaker 04:
You can see that your time rebuttal.

[00:28:43] Speaker 02:
Thank you, Your Honors.

[00:28:45] Speaker 02:
Council went through and noted that if we have two differing ALJ decisions, we have to look at the analysis.

[00:28:52] Speaker 02:
In other words, council was trying to provide you with something that we don't have.

[00:28:59] Speaker 02:
Judge Armbruster did not provide an analysis as to restrictions and limitations prior to February of 2015.

[00:29:07] Speaker 02:
and Judge Bucci didn't reconcile the difference between her opinion and the later opinion.

[00:29:13] Speaker 02:
Counsel's trying to say it's different records, it's different this, it's different that, but it's the job of the commissioner to do it.

[00:29:20] Speaker 02:
It's not our job.

[00:29:22] Speaker 02:
It's not counsel's job.

[00:29:23] Speaker 02:
It's not the court's job.

[00:29:25] Speaker 02:
It's missing from the decisions.

[00:29:28] Speaker 03:
What's your response to his argument that it's not missing, but it's the cross-reference to the

[00:29:35] Speaker 03:
discussion in the context of the B criteria earlier in the decision?

[00:29:40] Speaker 02:
Well, first, B criteria has nothing to do with being off task, and it has nothing to do with absences.

[00:29:47] Speaker 02:
It's not related to the B criteria at all.

[00:29:50] Speaker 02:
The B criteria is analyzed at step three.

[00:29:53] Speaker 02:
After step three, the ALJ is supposed to perform a residual functional capacity.

[00:30:00] Speaker 02:
I'll point you to the decision of ALJ on Brewster.

[00:30:03] Speaker 02:
He found the B criteria were not met.

[00:30:08] Speaker 02:
But Walsh was disabled because she was off task more than 15% of a work day and would be absent two days per month.

[00:30:16] Speaker 02:
It's irrelevant.

[00:30:16] Speaker 02:
He's comparing apples to oranges.

[00:30:20] Speaker 02:
Importantly,

[00:30:21] Speaker 02:
We argued in our brief that the commissioner did not reconcile the off-task limitations identified by Dr. Hawks, Dr. Fierro, Dr. March and ALJ on Brewster.

[00:30:35] Speaker 02:
And that's still, that's the argument that still hasn't happened.

[00:30:39] Speaker 02:
Now let's talk about those state agency physician opinions.

[00:30:46] Speaker 02:
We don't.

[00:30:46] Speaker 02:
Look, the judge, the ALJ found that there were limitations in dealing with co-workers.

[00:30:53] Speaker 02:
How can you have no public contact, mental limitations preventing public contact, mental limitations preventing interaction with co-workers, and have unfettered ability to deal with supervisors?

[00:31:06] Speaker 02:
It doesn't make sense.

[00:31:07] Speaker 02:
You work with supervisors.

[00:31:09] Speaker 02:
They are co-workers.

[00:31:11] Speaker 02:
And so she accepts it.

[00:31:13] Speaker 02:
She agrees with it.

[00:31:15] Speaker 02:
According to counsel, later evidence changes that.

[00:31:21] Speaker 02:
Well, where's the analysis?

[00:31:24] Speaker 02:
And what is the later evidence?

[00:31:27] Speaker 02:
Is it the later evidence in 2015, 2016, 2017?

[00:31:30] Speaker 02:
The doctors rendered the opinion during this period of disability.

[00:31:39] Speaker 02:
It's consistent.

[00:31:40] Speaker 02:
with both doctors are consistent.

[00:31:43] Speaker 02:
It's consistent with the three other treating physicians.

[00:31:47] Speaker 02:
It's consistent with the reports of Dr. Hill and Luna made shortly, I think it was in March and May of 2015.

[00:31:56] Speaker 02:
It's consistent with the opinion of Dr. Armbruster.

[00:32:00] Speaker 02:
There's only one person that disagrees.

[00:32:03] Speaker 02:
It's the judge, but we don't know why.

[00:32:05] Speaker 02:
All she said was, be criteria.

[00:32:09] Speaker 04:
All right, counsel, we understand your argument.

[00:32:11] Speaker 04:
Thank you.

[00:32:12] Speaker 04:
You exceeded your time.

[00:32:13] Speaker 04:
Thank you to both counsels.

[00:32:14] Speaker 04:
The case just argued is submitted for decision by the court.