[00:00:00] Speaker 04:
And we'll move on to our fourth and final argument for today in Weber versus O'Malley case number 23-2672.

[00:00:27] Speaker 04:
You didn't go far.

[00:00:29] Speaker 00:
Thank you, Your Honors.

[00:00:31] Speaker 00:
Again, this is Chad Halfield, representing William Weber, in his appeal to the Social Security case.

[00:00:37] Speaker 00:
For this claim, I'd like to go back to the opening argument before the judge, the initial discussion in the record, where we hit the head issues head on, and the judge asked about, well, I brought up the fact that we wanted to argue that there is new material evidence here, that Dr. Grothaus, prior to the alleged

[00:00:58] Speaker 00:
I mean, tired to the date last insured, had found sacralization of the spine upon objective exam.

[00:01:04] Speaker 00:
That means that it's not moving.

[00:01:07] Speaker 00:
ALJ asked if there was objective evidence, laboratory signs, labs, or x-rays.

[00:01:15] Speaker 00:
At that point, it was said to go to 4F page 97, there's a rheumatologist, Sally Deepa, who found, who specifically notes x-rays show partial fusion of the

[00:01:29] Speaker 00:
L5 vertebrae.

[00:01:31] Speaker 00:
That is the sign.

[00:01:33] Speaker 00:
So right there, the ALJ's reliance on Dr. Jahnke, a prior and medical expert, not in her field of expertise, who said there's no evidence of sacralization.

[00:01:42] Speaker 00:
We have Dr. Grothaus, the primary care provider, November, December, finding forward flexion, sacralization of the spine, referral takes some time.

[00:01:52] Speaker 04:
Council, I think Judge Berzogne has a question.

[00:01:57] Speaker 02:
Some definition or explanation of some of these terms would be helpful.

[00:02:03] Speaker 02:
Ankylosing spondylitis, what is that?

[00:02:06] Speaker 00:
Ankylosing spondylitis is- Is that what you're talking about now or are you talking about something else?

[00:02:12] Speaker 00:
No, we're talking about ankylosing spondylitis, for sure.

[00:02:16] Speaker 02:
But there, there was an earlier finding that you didn't have that.

[00:02:20] Speaker 02:
right, based on blood tests and so on.

[00:02:23] Speaker 00:
Well, the blood test is probably misnomer.

[00:02:26] Speaker 00:
The rheumatologist, especially in the fields, didn't have the same thoughts about the HLA-B27.

[00:02:31] Speaker 00:
The rheumatologist in 4 of 18 had no problem with that.

[00:02:35] Speaker 00:
This is a medical expert in a prior place.

[00:02:38] Speaker 00:
The medical expert there said that there was no evidence of sacralization.

[00:02:41] Speaker 02:
Was there a finding now that she now has it, although she didn't have it before?

[00:02:49] Speaker 00:
Yes, and that's what I was saying.

[00:02:51] Speaker 00:
So Dr. Grodehouse in November, December, 2017 found sacralization.

[00:02:55] Speaker 00:
Sacralization is the bony fusion of the spine, which is the classic sign of ankylosing spondylitis.

[00:03:01] Speaker 00:
In April of 18, when I got to the rheumatologist, the rheumatologist said, hey, x-rays show partial fusion of the L5 spine.

[00:03:10] Speaker 00:
She diagnosed ankylosing spondylitis versus psoriatic arthritis with, I think,

[00:03:18] Speaker 00:
inflammatory arthropathy, which is a disorder for inflammatory arthritis.

[00:03:23] Speaker 00:
ALJ asked, was there any x-rays prior to the DLI?

[00:03:27] Speaker 00:
I wish there isn't of that, but there's a clinical finding by the doctor examining it of sacralization of the spine.

[00:03:34] Speaker 00:
That's subjective findings.

[00:03:36] Speaker 00:
It just takes a matter of months to get to the rheumatologist.

[00:03:39] Speaker 00:
That's a matter of practicality, not materiality.

[00:03:42] Speaker 03:
What evidence do we have as to whether or not this ankylosing spondylitis existed during the prior period?

[00:03:53] Speaker 03:
I mean, I think this is not something that develops in 24 hours or in a very short period.

[00:03:58] Speaker 03:
It's a condition that gradually gets worse.

[00:04:03] Speaker 03:
So what evidence do we have that he had this or didn't have this in the earlier period?

[00:04:08] Speaker 00:
Well, I think the primary thing is he's had

[00:04:10] Speaker 00:
who's having progressive, worsening pain, went to Dr. Grothaus in November of 2017 and found a forward-based gait and sacralization of the L5.

[00:04:22] Speaker 02:
So that's at the point where it's... So the ALJ says that Weber did not undergo any new testing during that period to substantiate ankylosing spondylitis.

[00:04:34] Speaker 02:
Is that not true?

[00:04:39] Speaker 00:
The objective...

[00:04:40] Speaker 00:
The referral to the rheumatologist happened April 2, 2018.

[00:04:44] Speaker 00:
So just a little over three months after the date last insured.

[00:04:49] Speaker 00:
But the objective clinical findings showing has progressed.

[00:04:51] Speaker 00:
He had a forward flex gait.

[00:04:53] Speaker 00:
and sacralization of the spine was prior to the date last insured.

[00:04:56] Speaker 00:
He didn't have it before.

[00:04:58] Speaker 02:
If the earlier finding, I mean, this has to do with the race to decadal-like problem.

[00:05:04] Speaker 02:
Yeah.

[00:05:05] Speaker 02:
If the ALJ, with regard to the earlier period, found that he didn't have it.

[00:05:10] Speaker 02:
Is that right?

[00:05:12] Speaker 00:
Right.

[00:05:12] Speaker 00:
There was no sacralization found or noted on exam in the earlier period.

[00:05:16] Speaker 00:
That's what the medical experts said.

[00:05:17] Speaker 00:
Medical experts said there's no sacralization, there's no evidence of bony fusion, didn't have that

[00:05:22] Speaker 00:
April 2, 2018, rheumatologist saying the x-rays did show partial fusion.

[00:05:27] Speaker 00:
Didn't have Dr. Grothaus's treatment note November 17, stating that had sacralization of the L5 vertebra.

[00:05:35] Speaker 00:
She said that's the classic sign of ankylosing spondylitis and I don't have any evidence of it.

[00:05:40] Speaker 00:
So we have evidence of it now during this period.

[00:05:43] Speaker 00:
Not only that, we also have evidence of Dr. Grotus.

[00:05:47] Speaker 02:
Dr. Grotus diagnosed him with ongoing ankylosing, I'm sorry, spondylitis.

[00:05:53] Speaker 02:
But the earlier finding was he didn't have it, right?

[00:05:57] Speaker 00:
Right.

[00:05:58] Speaker 02:
So ongoing doesn't sound, sounds like he had it before.

[00:06:03] Speaker 02:
Was he purporting to make a new finding?

[00:06:07] Speaker 00:
Well, yes, he was a new provider.

[00:06:08] Speaker 00:
He wasn't a provider at that point.

[00:06:10] Speaker 00:
It had progressed.

[00:06:11] Speaker 00:
I mean, he was already on medication.

[00:06:13] Speaker 00:
emerald for inflammatory arthropathy or possible ankylosing spondylitis.

[00:06:19] Speaker 00:
These are new findings.

[00:06:20] Speaker 00:
This was the classic sign of ankylosing spondylitis.

[00:06:25] Speaker 00:
In fact, if we look what I argued in my opening, 14.09 and equaling, the finding they used for meeting the listing is what degree of forward flexion does an individual have?

[00:06:34] Speaker 00:
30 degrees, you do it.

[00:06:36] Speaker 00:
I said, there's no one actually measured the degree of forward flexion, so we can't have a meeting, but we certainly have the findings.

[00:06:43] Speaker 00:
at that point.

[00:06:45] Speaker 00:
There's no requirement for a certain laboratory finding on doing that.

[00:06:49] Speaker 00:
So those things which are most important considered by the social security were present.

[00:06:56] Speaker 00:
It seems to be the ALJ is arguing about whether, oh, well, maybe this is a different kind of inflammatory arthritis.

[00:07:04] Speaker 00:
Inflammatory arthritis is the broader term, ankylosing spondylitis,

[00:07:09] Speaker 00:
the synovitis in the hands, whether it's a different kind of inflammatory arthritis, wouldn't have a real impact.

[00:07:15] Speaker 00:
I mean, to say you want a very specific diagnosis, I mean, just to throw the baby out with the bathwater, especially since the judge for the back impairments just gave the very general term of degenerative disc disease.

[00:07:27] Speaker 00:
And so part of why he limited Dr. Grothaus, his findings, which proved to be disabling in this case, per vocational expert testimony, was that, hey, there is no,

[00:07:38] Speaker 00:
ankylosing spondylitis diagnosis that he found supported and that there's no nerve compression, which again just shows another misunderstanding of the record.

[00:07:49] Speaker 00:
MRI showed no nerve root compression, which is a herniated disc where the bone pokes into a certain point.

[00:07:57] Speaker 00:
They found spinal canal stenosis, which is a narrowing of the spine for which the Dr. Wall, the orthopedic surgeon, did a decompression surgery

[00:08:06] Speaker 00:
which by definition is to relieve compression of the nerves, not because of just a herniated disc nerve root.

[00:08:13] Speaker 00:
And so the judge will say there's no evidence of nerve root compression, but that's a different finding.

[00:08:19] Speaker 00:
Neurogenic claudication was from narrowing the spine.

[00:08:23] Speaker 00:
And so the ALJ is throwing out this opinion and

[00:08:28] Speaker 00:
the supporting opinion of the physical therapist, who did a very thorough functional capacity evaluation by saying, hey, these findings aren't here, which they were, and then saying, this back pain was resolved immediately upon the surgery.

[00:08:42] Speaker 00:
We find that's not true.

[00:08:43] Speaker 00:
We find that in July 2018, over a 12 month period from the ledge onset date, he's still using a cane, still having swelling of the legs, still having pain and said that the surgery has not been helping his pain.

[00:08:54] Speaker 02:
There's no way- I thought that there was an intervening car accident.

[00:08:59] Speaker 00:
The judge doesn't mention that, and that is not really a big part of the... The judge doesn't mention it?

[00:09:05] Speaker 00:
The judge doesn't mention that, and that's not a big part of the claim or anything that was done there.

[00:09:09] Speaker 02:
I thought the explanation was that he was okay, that the surgery was successful, but then he had a car accident.

[00:09:24] Speaker 00:
Well, it's hard to say.

[00:09:25] Speaker 00:
I mean, everyone does better in the recovery, rest recovery period.

[00:09:28] Speaker 00:
He wasn't going out.

[00:09:28] Speaker 00:
He was laying down, taking narcotics.

[00:09:31] Speaker 00:
Um, when he got out, he did have a car accident and did this.

[00:09:34] Speaker 00:
Um, but we'd say that's not a new, the judge isn't arguing that there's a new impairment.

[00:09:40] Speaker 00:
Um, inclusive spondylitis wouldn't go away.

[00:09:42] Speaker 00:
Unflammable arthritis wouldn't go away.

[00:09:44] Speaker 00:
His hand impairments with active synovitis, which shows active inflammation wouldn't be impacted at all by a back surgery.

[00:09:52] Speaker 00:
And yet we have,

[00:09:54] Speaker 00:
Mark Johnson, Functional Capacity Evaluation in 2017 is done again in 2019 and consistently shows both of them that his fine manipulation is in the first percentile, meaning that there are 100 workers, 99 workers would be able to do fine manipulation faster and better than he would.

[00:10:15] Speaker 00:
And yet there is no finding whatsoever in the Judge's RFC any limitation, financial limitations.

[00:10:21] Speaker 00:
Whether the ILJ finds that that's not a specific vocational, how much couldn't you do, couldn't you do, when you're in the bottom one percentile and the Dr. Grothaus had found that had significant limitations in fine manipulation and is showing active synovitis multiple times in the finger joints, it's inappropriate to find the limitations.

[00:10:42] Speaker 00:
In our briefing, we showed how the SSR showed that those limitations sedentary work with occasional manipulation is going to be

[00:10:51] Speaker 00:
disabling limitation.

[00:10:53] Speaker 00:
The judge doesn't even address it.

[00:10:56] Speaker 00:
What the judge does is mostly squabble with which is the appropriate diagnosis, and since he could not find it or couldn't find the findings for nerve compression, was therefore going to disregard everything

[00:11:13] Speaker 00:
it was based upon.

[00:11:14] Speaker 00:
Dr. Grofhaus did do a physical examination.

[00:11:17] Speaker 00:
Timothy Salvo did do a physical examination.

[00:11:19] Speaker 00:
Mark Johnson did do physical examinations that showed and was our basis for the limitations that are inconsistent with the judge's RFC.

[00:11:30] Speaker 00:
Now, the judge's RFC, he even found that Mark Johnson, the functional capacity evaluations limited Mr. Weber to lifting 10, I think lifting 10 pounds or

[00:11:43] Speaker 00:
12.5 pounds, but only carrying 10 pounds, and said, that's not a big enough reason to make me change anything.

[00:11:49] Speaker 00:
That's not material.

[00:11:51] Speaker 00:
Material means, within this context, that it would change the findings at one of the steps of the sequential evaluation.

[00:11:58] Speaker 00:
The ALJ had already found that he could only stand four hours standing or walking.

[00:12:03] Speaker 00:
If you also look at the lifting to a sedentary, you have, I mean, the definition, the difference between light and sedentary work is either you're standing,

[00:12:12] Speaker 00:
or you're lifting.

[00:12:13] Speaker 00:
If both are at the sedentary level, then this is a sedentary job.

[00:12:17] Speaker 00:
The judge, at step five, does not find any sedentary jobs.

[00:12:20] Speaker 00:
These are only light jobs.

[00:12:22] Speaker 00:
Further, the last record the judge notes of the use of a cane was that he was using it.

[00:12:26] Speaker 00:
Testimony that he continues to use it.

[00:12:28] Speaker 00:
He asked to alternate sitting and standing.

[00:12:30] Speaker 00:
He had to have the portion of the time he was standing be one-handed.

[00:12:33] Speaker 00:
The RFC does not account for any of these things, and these were present prior to the date last insured and shown to continue throughout the record.

[00:12:40] Speaker 00:
That's a material change that affects the outcome, even on the judge's own, that those things which he did not reject in the record.

[00:12:47] Speaker 04:
Counsel, do you want to reserve time?

[00:12:48] Speaker 04:
You're under three minutes.

[00:12:50] Speaker 04:
Thank you.

[00:13:06] Speaker 01:
Good morning, Honours.

[00:13:07] Speaker 01:
May it please the Court, my name is Michael Mullen and I represent the Acting Commissioner of Social Security on this matter.

[00:13:13] Speaker 01:
Substantial evidence supports the LJ's finding that Weber was not disabled.

[00:13:17] Speaker 01:
The primary thrust of Weber's argumentation here was that the back surgery did not significantly improve their condition, but that's actually belied by the record.

[00:13:27] Speaker 02:
Well, I thought the primary thrust was that there was more.

[00:13:30] Speaker 02:
There was medical evidence that demonstrated that he had these conditions that the prior ILGA found that he didn't have.

[00:13:39] Speaker 01:
Like ankylosing spondylitis?

[00:13:41] Speaker 02:
that and also nerve compression.

[00:13:43] Speaker 02:
And the ALJ here said there was no new and material evidence showing nerve root compression and that Dr. Grote, his opinion is unpersuasive because he based his conclusion on unsupported diagnoses.

[00:14:01] Speaker 02:
And he says that there was new evidence of those things.

[00:14:07] Speaker 01:
First, as a threshold matter, this is Weber's counsel's theory.

[00:14:13] Speaker 01:
This is Weber's counsel's theory and interpretation of the medical evidence.

[00:14:17] Speaker 01:
The ALJ was within right to rely on the qualified medical expert testimony of Dr. Jahnke, who did look at the results and actually found that they didn't.

[00:14:28] Speaker 02:
But it would be helpful to me, at least, to evaluate what's being said about whether there was

[00:14:35] Speaker 02:
new evidence now and as I understand he says part of it is with regards to the spinalitis, if that's how you say it, that there had been nothing in the x-rays that showed whatever the main

[00:14:55] Speaker 02:
They don't show anything materially different, meaning nothing that would warrant a departure on the residual functional capacity.

[00:15:10] Speaker 01:
And more importantly, Dr. Jahnke testified that

[00:15:14] Speaker 01:
There were really two primary factors showing that a pellet didn't have ankylosing spondylitis.

[00:15:24] Speaker 01:
The first was that they didn't have the antigen testing that would be positive 99% of the time.

[00:15:29] Speaker 01:
So this is the most reliable testing there is.

[00:15:30] Speaker 02:
They have testing now.

[00:15:31] Speaker 01:
And there was no sign of that.

[00:15:33] Speaker 01:
In fact, at the 2020 hearing, years after the evidence that Mr. Hatfield is alluding to, at the hearing, the ALJ said, can you point to me objective medical evidence in the record that would show ankylosing spondylitis as a medically determinable impairment?

[00:15:52] Speaker 01:
And counsel pointed to none.

[00:15:53] Speaker 01:
And that's at pages 81 to 83 of the record in the 2020 administrative hearing transcript.

[00:15:59] Speaker 01:
Again, he has shown no positive antigen testing that would corroborate the ankylosing spondylitis.

[00:16:07] Speaker 01:
And again, his view that the fusion shows ankylosing spondylitis is merely his unqualified medical interpretation of the evidence.

[00:16:17] Speaker 01:
objective antigen testing that would show the ankylosing spondylitis.

[00:16:22] Speaker 01:
And I think beyond that, you know, the RFC isn't so much informed by diagnosis as it is by function, and the ALJ still evaluated Weber's level of function as opined by the medical providers and sources, and also as alleged by Weber himself, and ALJ found inconsistencies with both.

[00:16:44] Speaker 01:
For example, Dr. Grafis, you know, he found that Weber was unable to work due to ankylosing spondylitis, and the LJ, of course, found that that was inconsistent with Dr. Jahnke's persuasive and qualified medical expert testimony that there was no objective evidence showing ankylosing spondylitis.

[00:17:01] Speaker 02:
But also, there were continued— You just switched gears.

[00:17:04] Speaker 02:
I thought you were going to tell us why the RFC wasn't consistent with the opinions stated

[00:17:12] Speaker 02:
Why the opinions stated with regard to Dr. Grotus and other people during the relevant period were not, why the ALJ was correct in finding them.

[00:17:25] Speaker 01:
Right, so I was just beginning with that and I was going there.

[00:17:28] Speaker 01:
So to add to that, Dr. Grothis opined that Weber had limited gait, that he was slow, that he limped, that he had a limited range of motion.

[00:17:36] Speaker 01:
And you know what we see?

[00:17:37] Speaker 01:
We don't find that to be a continuous level of impairment throughout the record at all.

[00:17:40] Speaker 01:
In fact, if you go to records in June of 2016,

[00:17:45] Speaker 01:
and 17, we see normal range of motion.

[00:17:49] Speaker 01:
We see only mild swelling that required, quote, no further vascular intervention.

[00:17:54] Speaker 01:
That's at page 505 of the record.

[00:17:56] Speaker 01:
A month later, in July 2017, at page 503, we have no reported leg pain.

[00:18:02] Speaker 01:
We have normal extremities.

[00:18:04] Speaker 01:
We have Dr. Banerjee

[00:18:06] Speaker 01:
in a comprehensive physical examination concluding that Weber was a, quote, healthy male who had normal strength, normal sensation.

[00:18:14] Speaker 01:
And the ALJ acknowledged that there was some worsening of neurogenic claudication toward the end of the relevant period.

[00:18:20] Speaker 01:
From about September to December, there was worsening.

[00:18:23] Speaker 01:
We saw that, for example, at the physical therapy examination with Mr. Johnson.

[00:18:29] Speaker 01:
After the end of the relevant period, so the relevant period, the insured status here ends December 31st, 2017.

[00:18:36] Speaker 01:
A few months later, in March 2018, Weber had laminectomy surgery, back surgery, that he reported, quote, significantly improved his symptoms.

[00:18:45] Speaker 01:
That's directly contrary to his testimony and statements that he made later, which was that surgery made me worse, surgery didn't help.

[00:18:52] Speaker 01:
And that's belied by the actual treatment records that he has, where he said at page 408 of the record, I had no symptoms before the accident.

[00:19:00] Speaker 01:
That's the intervening moment that your honors were alluding to earlier.

[00:19:04] Speaker 01:
In May 2018, he had a 70 mile per hour car accident hitting a deer.

[00:19:11] Speaker 01:
And after that, he alleged, quote, mild worsening of symptoms.

[00:19:15] Speaker 01:
He indicated that his pain was a three out of 10, that it was managed with prescribed pain medication that could bring his pain levels to a... Did he tie that pain to the car accident?

[00:19:26] Speaker 01:
He did.

[00:19:27] Speaker 04:
Yes, if you... I thought I heard opposing counsel say that... I thought he said the district court, but I'm wondering if he meant the ALJ that didn't mention the car accident.

[00:19:38] Speaker 01:
The ALJ really focuses on the non-continuous nature of the impairment.

[00:19:43] Speaker 01:
The ALJ summarizes the medical evidence, but like for example, I don't think that the ALJ says the phrase deer accident or car accident in the course of the instant decision.

[00:19:52] Speaker 01:
Nevertheless, the ALJ does consider those medical records, talks about them, acknowledges them, but it focuses the analysis on.

[00:19:59] Speaker 04:
And in a way that is basically saying there's no symptoms initially and then after May of 2018, there are some symptoms.

[00:20:07] Speaker 01:
That's exactly right.

[00:20:07] Speaker 01:
And it's tied to the ALJ's analysis that Weber was not disabled because he failed to meet the durational impairment.

[00:20:15] Speaker 01:
And again, there's no continuous 12-month period where a medically-determined impairment rendered Weber unable to work.

[00:20:23] Speaker 01:
Again, this is a short period.

[00:20:25] Speaker 01:
We have an alleged onset date in May 2017 and the end of the relevant period in December of the same year.

[00:20:33] Speaker 01:
But in June and July of 2017, we have medical records showing that Weber is significantly more able than alleged.

[00:20:43] Speaker 01:
We do have a worsening of impairments from about September to December, suggesting a worsening of neurogenic claudication.

[00:20:50] Speaker 01:
And then after the relevant period, but still less than a year later, we have a laminectomy surgery where he reported, again, in his own words, significant improvement.

[00:20:59] Speaker 01:
And then again, page 408, he endorses having no symptoms before the 70 mile an hour car accident with a deer.

[00:21:08] Speaker 01:
Even then, he's only alleging mildly worse symptoms.

[00:21:13] Speaker 01:
Again, pain levels of three out of 10, two or three out of 10 with prescribed medication.

[00:21:18] Speaker 01:
He remained ambulatory.

[00:21:21] Speaker 01:
And so, again, substantial evidence supports the ALJ's analysis.

[00:21:26] Speaker 01:
And I accept that this medical record is susceptible to different interpretations.

[00:21:30] Speaker 01:
But the relevant inquiry here is whether substantial evidence supports the ALJ's actual findings.

[00:21:36] Speaker 01:
The substantial evidence does show that there was a worsening of symptoms late in the relevant period

[00:21:44] Speaker 01:
but that there was significantly more function than alleged in the months prior to September 2017, and in the months following the relevant period, a successful surgery that improved his symptoms, that brought his pain levels down to a manageable level, and that that was exacerbated significantly by a car accident with a deer.

[00:22:03] Speaker 01:
More than almost half a year, almost half a year after the end of the relevant period.

[00:22:06] Speaker 01:
And yes, Pellant does allege worsening of symptoms through 2018, but I would also posit

[00:22:14] Speaker 01:
that many of his allegations about worsening symptoms aren't even really borne out by the record, or at least they suggest he's not as limited as alleged.

[00:22:21] Speaker 01:
For example, in May 2018, we have objective medical records showing just mild limitations to the range of motion, negative straight leg raise testing, a full five out of five motor strength, intact sensation.

[00:22:36] Speaker 01:
We have that again two months later in July 18, page 398 of the record.

[00:22:40] Speaker 01:
Later in the record, I believe in October of 2018, we have objective medical evidence showing normal muscle tone, normal full strength throughout, no distress, normal gait and heel toe walking.

[00:22:53] Speaker 01:
That's a page 1,032 of the record.

[00:22:56] Speaker 01:
And so even if we were to entertain that the improvements weren't

[00:23:05] Speaker 01:
backed by substantial evidence.

[00:23:07] Speaker 01:
Again, the record still shows that he had a higher level of function than alleged.

[00:23:10] Speaker 01:
Substantial evidence does support the ALJ's analysis.

[00:23:14] Speaker 01:
Unless this panel has any questions about, for example, the step two or step three listings, subjective symptom evaluation, I'll close and say that substantial evidence does support the ALJ's findings and decision-finding webinar disabled.

[00:23:32] Speaker 01:
Even if this court disagrees, remand would be the appropriate remedy

[00:23:35] Speaker 01:
the judge.

[00:23:37] Speaker 01:
Um, Weber argues otherwise, but he hasn't shown the necessary criteria to justify such an extraordinary remedy.

[00:23:43] Speaker 01:
Uh, therefore, the commissioner requests this panel affirm.

[00:23:47] Speaker 04:
Thank you.

[00:23:48] Speaker 04:
Thank you.

[00:23:49] Speaker 04:
Thank you for your argument, and we'll hear rebuttal.

[00:23:55] Speaker 00:
Thank you, Your Honor.

[00:23:55] Speaker 00:
So just to go back, the extra evidence is not my lay opinion of, uh, extra evidence.

[00:24:01] Speaker 00:
The lay opinion was of the judge.

[00:24:03] Speaker 00:
As I pointed to the judge in the opening argument,

[00:24:05] Speaker 00:
the 4F page 79.

[00:24:07] Speaker 00:
It's CAR 422.

[00:24:08] Speaker 00:
This is the rheumatologist, Gali Deepa, who said, x-ray evidence shows partial fusion of the sacroiliac joints.

[00:24:16] Speaker 00:
I'm not relying on my own interpretation of medical records.

[00:24:20] Speaker 00:
That's the pre-rheumatologist who said that.

[00:24:22] Speaker 02:
That was after the relevant period.

[00:24:25] Speaker 00:
That's in April of 2000, April 2, 2018.

[00:24:28] Speaker 00:
So just three months and a couple of days after the date last insured.

[00:24:32] Speaker 00:
But it was

[00:24:34] Speaker 00:
brought about by the objective clinical finding of sacralization of the L5 vertebrae by Dr. Grotehaus.

[00:24:41] Speaker 02:
Well, Grotehaus, his medical notes say enclosing spondylitis onset several years ago.

[00:24:53] Speaker ?:
Right.

[00:24:55] Speaker 02:
But that's in conclusion.

[00:24:56] Speaker 00:
This is the difficult, right.

[00:24:59] Speaker 00:
The medical expert says HLA-B27 is 99% of the cases.

[00:25:03] Speaker 00:
She's not a specialist in this field.

[00:25:05] Speaker 02:
But it doesn't matter.

[00:25:06] Speaker 02:
This is your problem.

[00:25:08] Speaker 02:
Whether it's right or not, it was credited by the earlier ALJ and is therefore binding now.

[00:25:15] Speaker 02:
No?

[00:25:16] Speaker 00:
Right.

[00:25:17] Speaker 00:
But there's different findings.

[00:25:18] Speaker 00:
That ME did not find the classic symptom of ankylosing spondylitis, which is sacralization.

[00:25:24] Speaker 00:
That's the only thing.

[00:25:25] Speaker 00:
I mean, that's what they talked about in the social security listing, 14.96.

[00:25:29] Speaker 00:
is sacralization and the amount of forward flexion.

[00:25:32] Speaker 00:
That's what they consider.

[00:25:33] Speaker 00:
That is the criteria social care looks at for ankylosing spondylitis and inflammatory arthritis.

[00:25:40] Speaker 00:
Secondly, this was objectively found prior.

[00:25:42] Speaker 00:
It was on Embryll, a biologic by rheumatologists.

[00:25:45] Speaker 00:
You don't put people on biologics unless there's evidence of it.

[00:25:50] Speaker 00:
As far as the car accident, the judge never mentions the car accident, never states that as a basis.

[00:25:55] Speaker 00:
He only says he improved

[00:25:57] Speaker 00:
Significantly right after the back surgery.

[00:26:00] Speaker 00:
But Dr. Salvo in July and October of 18 said pain and swelling due to inflammatory arthropathy, which wouldn't be caused by a car accident.

[00:26:09] Speaker 04:
Yeah, I read the inference that it was from the car accident because of the timing of it.

[00:26:17] Speaker 04:
And I think that's what your counsel just said, was that three out of 10 was after the car accident.

[00:26:25] Speaker 04:
And ALJ didn't specifically mention the car accident, but that's what the timing references.

[00:26:31] Speaker 00:
This is routine for every case with a major back surgery.

[00:26:35] Speaker 00:
They're going to say better pain until they start going back.

[00:26:37] Speaker 00:
I mean, you're off work three months, even people who aren't social security claimants, because you're lying on your back with pain medication, narcotic pain medications.

[00:26:45] Speaker 00:
The pain's going to be lower.

[00:26:47] Speaker 00:
But a car accident would not cause inflammatory arthritis, for which Timothy Salvo in July and October 18 said there's swelling of the legs.

[00:26:55] Speaker 00:
caused by inflammatory arthropathy, which is another word for arthritis.

[00:26:59] Speaker 00:
The testing by the two different physical therapists, this isn't just watching him walk.

[00:27:08] Speaker 00:
Like we talked about Dr. Banjari cited here, this was someone who hadn't seen him for six months and was treating him for coughing up blood.

[00:27:14] Speaker 00:
This was someone who measured his walking over the course of one day, then a second day.

[00:27:20] Speaker 00:
Did it 17 before the end of developing and 19 showing significant difficulties, significant gait pattern deviations, partial abnormalities, range of motion limitations with majority of spinal movement, range of motion strength limitations with the majority of the bilateral upper and lower extremity movements.

[00:27:38] Speaker 00:
Again, first percentile Purdue pegboard, that's fine manipulation testing.

[00:27:42] Speaker 00:
That's one of the best findings we have in social security cases.

[00:27:45] Speaker 00:
for a person's ability to manipulate, because they're actually doing it over and over as opposed to a CE where you just pick a coin off a table once.

[00:27:53] Speaker 04:
Before- Okay.

[00:27:54] Speaker 04:
Counsel, you're over time.

[00:27:55] Speaker 04:
We've given you additional time.

[00:27:57] Speaker 04:
We appreciate it.

[00:27:58] Speaker 04:
Thank you.

[00:27:59] Speaker 04:
We appreciate both counsel for your arguments in the case.

[00:28:01] Speaker 04:
The case is now submitted, and that concludes our arguments for the week.

[00:28:04] Speaker 04:
Thank you.