[00:00:00] Speaker 02:
Your honor, I'm James tree and I represent Alex Peterson in a social security disability case.

[00:00:07] Speaker 02:
Uh, I'd like to reserve three minutes for rebuttal.

[00:00:09] Speaker 03:
Okay.

[00:00:09] Speaker 03:
Please keep track of your own time.

[00:00:11] Speaker 02:
Thank you.

[00:00:13] Speaker 02:
Okay.

[00:00:13] Speaker 02:
Who is Alex Peterson?

[00:00:15] Speaker 02:
Dr. Omer was her treating psychologist for many years.

[00:00:18] Speaker 02:
He worked at Yakwan neighborhood health services and there's hundreds of pages of chart notes.

[00:00:23] Speaker 02:
Just a few of them I have here in my hand because they were significant.

[00:00:26] Speaker 02:
because the ALJ didn't mention that Dr. Ulmer was a treating psychologist.

[00:00:32] Speaker 02:
He didn't mention the hundreds of pages of chart notes from Yakima Neighborhood Health Services where she received her mental health treatment.

[00:00:39] Speaker 02:
He didn't mention the multiple PHQ-9 tests that were given to her by Yakima Neighborhood Health Services with scores of 20, 21, 25, all representing objective evidence of the most severe depression.

[00:00:53] Speaker 02:
On the scale of the PHQ,

[00:00:55] Speaker 02:
Nine test a score of 20 or above is in the highest level of severe depression below that is moderately severe and moderate mild and none There's plenty of objective evidence in this case to support the opinions of dr. Ulmer who twice gave disability evaluations in 2018 and 2020 the Washington State Department of Social and Health Services that qualified Alex for Washington State disability assistance and

[00:01:25] Speaker 02:
The ALJ in evaluating the case made numerous errors.

[00:01:29] Speaker 02:
Fundamentally, he didn't understand what fibromyalgia is about, continually saying that neurological cardiovascular fractures were normal.

[00:01:40] Speaker 02:
This had nothing to do with the fibromyalgia case.

[00:01:42] Speaker 02:
It had nothing to do with a major depressive disorder case or a bipolar case or post-traumatic stress disorder or anxiety.

[00:01:50] Speaker 02:
In our brief, we noted pages and pages of abnormal findings that were found in the chart notes.

[00:01:55] Speaker 02:
and were found throughout the record.

[00:01:57] Speaker 02:
But yet he said that Dr. Ulmer's checkbox report was rejected because it's a checkbox form.

[00:02:05] Speaker 02:
That's against contrary to Ninth Circuit precedent, particularly when you have chart notes that back up those checkbox forms.

[00:02:16] Speaker 02:
And in this case, we do.

[00:02:17] Speaker 02:
Dr. Ulmer, for example, in the car at 1195 to 1201 gave detailed chart notes.

[00:02:24] Speaker 02:
where he stated that he knew Miss Peterson's history.

[00:02:29] Speaker 02:
When she was four, she was sexually molested by a cousin.

[00:02:33] Speaker 02:
At age 12, her parents divorced, and she felt pulled between her parents, both telling her that the other parent was wrong.

[00:02:42] Speaker 02:
Up to that time, she was an A student in gifted programs in school.

[00:02:46] Speaker 02:
At age 13, she developed fibromyalgia and first diagnosed with fibromyalgia.

[00:02:51] Speaker 02:
She started missing school, and by 10th grade, had to stop going to school because she was no longer able to attend.

[00:02:58] Speaker 02:
She did an online GED program and succeeded.

[00:03:02] Speaker 02:
Alex Peterson is a client I am so grateful I met.

[00:03:05] Speaker 02:
She fights, the evidence shows in this record that she fights.

[00:03:09] Speaker 02:
She's not a quitter.

[00:03:11] Speaker 02:
She's had 11 different jobs during this period of disabilities from 2017 through 2023.

[00:03:17] Speaker 02:
She lost all 11 jobs in short order because of her disabilities, but she didn't give up.

[00:03:24] Speaker 04:
Help me understand.

[00:03:26] Speaker 04:
You use the word lost the jobs.

[00:03:28] Speaker 04:
Help me understand as best you can.

[00:03:31] Speaker 04:
What led to the termination because I saw that there is to say job after job after job She works there for two or three months, and then she's no longer working there was she fired What did she quit because the stress was too great?

[00:03:44] Speaker 02:
I mean give me a sense as to why the jobs didn't work out So it was a combination of those things your honor The record is clear that she testified and she testified at three different hearings because this case has been remanded by the federal court two different times because of errors

[00:04:01] Speaker 02:
But she testified that she had been fired because she was missing too much work She testified that she asked for accommodations, and they weren't given to her and so she had to quit So it was a combination of her not being able to do the job Too much pain too much stress and being fired from several of the jobs you had

[00:04:24] Speaker 01:
Mentioned in your discussion about the checkbox reports and of course, that's the form they give you right right check the box How many days do you think that this individual would miss per month?

[00:04:36] Speaker 01:
And then I think was dr. Briggs and Hardison said three or four days Are they also obligated to give additional?

[00:04:45] Speaker 01:
narrative as to backing up the checkbox report and

[00:04:49] Speaker 02:
I think so and I think they did.

[00:04:51] Speaker 02:
The thing about Dr. Briggs, there's hundreds of pages of his notes and at every visit she was being seen multiple times per week for a significant period of time by the chiropractor Dr. Briggs and if you'll notice in each chart note he recorded in his chart note what her pain level was for her neck, upper back, mid back, low back, hands.

[00:05:13] Speaker 02:
They were typically from seven to ten.

[00:05:15] Speaker 02:
There was a few times when there was improvement, and she said, I've had some improvement.

[00:05:19] Speaker 02:
But then if you look at the next chart note, it'll come back, she's back to the seven to 10 range again.

[00:05:25] Speaker 02:
There was never any sustained improvement.

[00:05:27] Speaker 02:
And that's what the federal district court said when they remanded this case the first time, is that the ALJ said she did all these things, but when she did them, she injured herself.

[00:05:37] Speaker 02:
For example, she's 260 pounds, five foot five, BMI of over 40.

[00:05:43] Speaker 02:
She reported that she tried to sprint once.

[00:05:46] Speaker 02:
She injured herself.

[00:05:47] Speaker 01:
Well, I also wanted to ask you about the remedy, because you have asked for, if you were to prevail, a remand for award of benefits.

[00:05:59] Speaker 01:
And I really wondered whether, in this case, given to do that, I think we'd have to say that all the evidence that has been discredited by the ALJ somehow should be taken as true.

[00:06:12] Speaker 01:
And I wondered if you have some authority for a remand on this basis for award of benefits or whether given the conflicting evidence and then your view that they really didn't, the ALJ didn't focus on some of the issues you've raised, whether our law really requires us to remand for reconsideration in effect.

[00:06:34] Speaker 02:
Yeah.

[00:06:34] Speaker 02:
I think in this case, if it wasn't for Dr. Klein and for the ALJ's RFC finding of a

[00:06:42] Speaker 02:
interaction with the supervisors on an occasional basis.

[00:06:45] Speaker 02:
Those two things, I think, give strong foundation for a remand for immediate award of benefits.

[00:06:51] Speaker 02:
Because the ALJ, he gave significant weight to Dr. Klein.

[00:07:02] Speaker 02:
There was eight psychologists.

[00:07:05] Speaker 02:
Four of them gave moderate limitations in their ability to perform work activities or normal workday, workweek.

[00:07:11] Speaker 02:
four gave marked impairments.

[00:07:14] Speaker 02:
The ALJ gave little weight to the four that gave marked impairments.

[00:07:18] Speaker 02:
Interestingly, from 2018 to the present, everybody gave marked impairments.

[00:07:24] Speaker 02:
It was just back in 2017 when they gave them moderate impairments.

[00:07:29] Speaker 02:
And so he says, okay, I accept everybody that gave them moderate impairments.

[00:07:33] Speaker 02:
But what's so telling about that on page 17 of our brief, we quote the vocational expert testimony.

[00:07:40] Speaker 02:
because the vocational expert was asked verbatim.

[00:07:43] Speaker 02:
With these moderate limitations, and on the form moderate is defined as a significant limitation, marked as defined as a very significant limitation.

[00:07:52] Speaker 02:
With these moderate limitations, which the ALJ ended up accepting and said he gave persuasive weight to from Dr. Klein, the VE said, no, there's no jobs they could do with those limitations.

[00:08:05] Speaker 02:
Matter of fact, she had read the record.

[00:08:07] Speaker 02:
This was Ms.

[00:08:08] Speaker 02:
Kramer, a VE of some 30 plus years, very experienced vocational expert.

[00:08:14] Speaker 02:
And after being given Dr. Klein's moderate limitations,

[00:08:21] Speaker 02:
she said long-term no and as exhibited she saw it in the exhibits she was able to attain different positions but was struggling with the six things that you just identified it's doubtful that with these issues that full-time work would be able to be accomplished and so even with the opinion that the ALJ credited that he said he gave significant weight to

[00:08:42] Speaker 02:
She's disabled because the POMS, Program Operating Manual of Social Security System, says that the ability to complete a normal workday and work week is a critical factor and you can't fudge on that.

[00:08:55] Speaker 02:
The vocational expert testimony is in unskilled work, you can only miss five to eight days of work per year.

[00:09:03] Speaker 02:
And if you miss more than that, you're going to get fired.

[00:09:06] Speaker 02:
There's so many people willing to do unskilled work out there in the community.

[00:09:10] Speaker 02:
And he said, if you miss more than 30 minutes in a day, that counts as an absence, which goes directly to our need for continual treatment.

[00:09:18] Speaker 04:
Excuse me.

[00:09:18] Speaker 04:
What do we do with the word guess from Dr. Briggs, who says, I would guess that she's going to miss three a month?

[00:09:27] Speaker 00:
Yeah.

[00:09:28] Speaker 04:
And the ALGS ceases on that.

[00:09:30] Speaker 04:
Yeah.

[00:09:32] Speaker 04:
Is he merely saying what everybody else just doesn't say?

[00:09:35] Speaker 04:
There's always a guess.

[00:09:37] Speaker 04:
So is that a word that should actually weigh against your client?

[00:09:43] Speaker 02:
So in the context of this case, I think it shouldn't weigh so heavily as I would normally think it might weigh, because he also said that it's more likely than not.

[00:09:54] Speaker 02:
And he said that it was his professional opinion based upon numerous years of treating her.

[00:10:01] Speaker 02:
And yes, it's not for sure, but it was more likely than not.

[00:10:05] Speaker 04:
Yeah.

[00:10:05] Speaker 04:
And what do we do again with this continues to be Dr. Briggs, who basically said, well, I encourage her to continue treatment rather than to declare for disability.

[00:10:16] Speaker 04:
What do we do with that statement?

[00:10:17] Speaker 02:
I love that statement.

[00:10:19] Speaker 02:
I tell my clients, if you can work, go to your doctors, ask them for permission to work and try.

[00:10:24] Speaker 02:
She did.

[00:10:25] Speaker 02:
And Dr. Briggs has the same mindset.

[00:10:28] Speaker 02:
Try to work.

[00:10:29] Speaker 02:
And she did.

[00:10:30] Speaker 02:
But she tried 11 times, and she never got past six months.

[00:10:34] Speaker 02:
And under Social Security rules, if your job ends because of your disability within six months, it's considered an unsuccessful work attempt.

[00:10:43] Speaker 02:
That's why the ALJ said she has no past relevant work at step four.

[00:10:47] Speaker 02:
This whole case, the burden has shifted to the commissioner.

[00:10:50] Speaker 02:
because she met her burdens at steps one, two, three, and four.

[00:10:54] Speaker 02:
At step five, the burden shifts to the commissioner to prove there's other jobs she can do.

[00:11:00] Speaker 03:
Okay.

[00:11:00] Speaker 03:
Councilor, you're over time, but we took you over time, so I'll put a couple minutes on the clock for you for rebuttal.

[00:11:05] Speaker 03:
Thank you, Your Honor.

[00:11:05] Speaker 00:
Thank you.

[00:11:19] Speaker 00:
Good morning, Katherine Watson for the Commissioner.

[00:11:23] Speaker 00:
I'd like to start with Judge McEwen's question regarding Dr. Briggs' opinion, whether the checkbox form, whether the explanations provided on that form is a relevant consideration.

[00:11:35] Speaker 00:
The answer to that is yes, and the authority for that is Ford v. Saul, 950 F3D, 1141,

[00:11:43] Speaker 00:
The pinpoint is 1155.

[00:11:44] Speaker 00:
This is a case decided in 2020.

[00:11:47] Speaker 00:
One of the reasons the ALJ discounted, in that case, a treating physician's opinion, which was a higher standard than the standard required here.

[00:11:56] Speaker 00:
That was under a specific and legitimate reason standard.

[00:11:59] Speaker 00:
This is only germane reasons to discount this opinion.

[00:12:02] Speaker 00:
But that reasoning certainly applies here.

[00:12:04] Speaker 00:
There we had a treating physician, also had treating notes.

[00:12:09] Speaker 00:
But one of the reasons that the ALJ provided to discount that opinion is because on that check back form, when asked to provide an explanation for the debilitating limitations he assessed, I believe the treating physician said the condition is permanent.

[00:12:24] Speaker 00:
There was no other explanation.

[00:12:26] Speaker 00:
and what the court in Ford held was that the ALJ may take into account the quality of the explanation when evaluating a medical opinion, and that the ALJ could permissively reject checkoff reports that do not contain explanations or adequate explanations for the basis of their conclusions.

[00:12:47] Speaker 04:
Excuse me, but it sounds as though there's a lot of stuff besides the check marks.

[00:12:51] Speaker 04:
There's a fair amount of stuff on the record from these doctors, right?

[00:12:54] Speaker 00:
There are treatment notes from Dr. Briggs, but one of the reasons that the ALJ provided was that, and this is on CAR 1636, and I'll just quote it, that the opinion was not supported by any rationale on the pre-printed two-page form.

[00:13:12] Speaker 00:
And what the ALJ explained earlier in the paragraph before is that when he was asked to provide an explanation,

[00:13:20] Speaker 00:
for why the claimant would be absent after three days of work per month.

[00:13:26] Speaker 00:
The explanation he provided was this was a, quote, guess, based on his status of his treating provider.

[00:13:34] Speaker 00:
I would also note that this court has held in Juan V. Gonzalez conjecture and speculation

[00:13:39] Speaker 00:
can never replace substantial evidence as the basis for an agency's finding.

[00:13:44] Speaker 00:
That site is 428 F3D 883, pinpoint is 885.

[00:13:50] Speaker 00:
So under binding authority, the fact that the explanations he provided on the form

[00:13:57] Speaker 00:
indicated that he was guessing.

[00:13:59] Speaker 00:
As you also noted, Judge Fletcher, it also indicated that he encouraged her to come back to treatment rather than apply for disability benefits.

[00:14:09] Speaker 00:
As the ALJ found, there was no explanations on that form that would support the limitations that he assessed.

[00:14:17] Speaker 04:
One thing that troubles me about this case, troubles me from the standpoint of against the government, is that the record shows that she tries job after job after job and she discontinues after a month or two or three for pretty much all of them.

[00:14:39] Speaker 04:
And the explanation appears to be that she just can't do the work in a way that will satisfy the employers.

[00:14:45] Speaker 04:
Now, the Social Security cases that I'm familiar with, there are two or three failed jobs attempts.

[00:14:52] Speaker 04:
This is more than I've ever seen.

[00:14:53] Speaker 00:
The ALJ focused on two jobs when discounting.

[00:14:59] Speaker 04:
Well, I'm not asking about two, I'm asking about all of them.

[00:15:02] Speaker 00:
Yeah, so I wouldn't necessarily say her other work supported the ALJ's finding, but I would say that the cashiering job, as well as her job with Affleck, did.

[00:15:13] Speaker 00:
And there's a few reasons for that.

[00:15:15] Speaker 00:
First of all, the ALJ used that work activity to discount the opinion evidence of her mental limitations.

[00:15:22] Speaker 00:
This is Dr. Omer, Padaja, Morgan, and Harmon.

[00:15:26] Speaker 00:
One of the reasons the ALJ gave was it was her demonstrated work activity and the ALJ highlighted the fact that she was performing semi-skilled and skilled work first at Cashiering and then with Affleck.

[00:15:38] Speaker 04:
Is there any evidence of malingering?

[00:15:42] Speaker 04:
I've never seen the word in this file, although it's a big file and I might have missed it.

[00:15:47] Speaker 00:
Yes, however, malingering... Yes, what?

[00:15:50] Speaker 00:
There is no malingering?

[00:15:52] Speaker 00:
There is some evidence of malingering.

[00:15:55] Speaker 04:
Do any of the people evaluating her use the word malingering?

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

[00:16:01] Speaker 00:
Who does and where?

[00:16:02] Speaker 00:
Oh, goodness, I don't have the doctor's mind, but I don't have the doctor in my notes here, but it was, in the opinion, I believe it was on card 1637, it was a doctor that was evaluating her

[00:16:15] Speaker 00:
it was her mental capabilities.

[00:16:18] Speaker 00:
And he found that she would have no, I believe it was Dr. Fletcher.

[00:16:21] Speaker 00:
He found that she would have no obvious limitation in her mental ability to work.

[00:16:26] Speaker 00:
What he assessed was malingering versus somatic symptom disorder.

[00:16:31] Speaker 00:
So the ALJ didn't rely on malingering to discount her testimony.

[00:16:34] Speaker 00:
The ALJ evaluated that opinion and found it persuasive.

[00:16:38] Speaker 00:
One of the basis that he gave is that although she was complaining of debilitating pain,

[00:16:44] Speaker 00:
He observed no obvious pain behaviors during the exam.

[00:16:48] Speaker 00:
It was not the focus of the ALJ's decision, but the ALJ did evaluate that opinion.

[00:16:52] Speaker 00:
The ALJ did find that opinion persuasive.

[00:16:55] Speaker 04:
Now to the extent that we're talking about fibromyalgia, we know that this somewhat mysterious elusive disease comes and goes.

[00:17:04] Speaker 04:
So the fact that in a particular examination, she might not be experiencing pain or describing pain is not inconsistent with fibromyalgia.

[00:17:13] Speaker 04:
Is that correct?

[00:17:14] Speaker 00:
It's not inconsistent with fibromyalgia generally.

[00:17:16] Speaker 00:
It's inconsistent with her testimony in this case.

[00:17:20] Speaker 00:
She did not allege that her pain came and go.

[00:17:23] Speaker 00:
She alleged that she had chronic, constant pain that was eight out of 10 in severity and sometimes 10 out of 10 in severity.

[00:17:31] Speaker 00:
So the fact that she's alleging constant pain and yet there are providers or times in the record that the ALJ pointed out

[00:17:40] Speaker 00:
where she's denying pain or where examining physicians are observing no pain behaviors, no acute distress.

[00:17:49] Speaker 01:
But that's not in, you know, she has more than one underlying condition.

[00:17:54] Speaker 01:
That's also correct.

[00:17:55] Speaker 01:
She has a lot of underlying conditions.

[00:17:59] Speaker 01:
And the fact that on one examination she reports honestly no pain, it seems to me that in effect her honesty

[00:18:08] Speaker 01:
of the fact that things come and go is being used against her in some ways, by the way the ALJ frames the decision.

[00:18:17] Speaker 01:
What is your view on that?

[00:18:19] Speaker 00:
A few responses to that.

[00:18:21] Speaker 00:
One is, again, she did not allege her pain came and went.

[00:18:26] Speaker 00:
She alleged that she had constant pain.

[00:18:29] Speaker 00:
And she also alleged that that was 8 out of 10 to 10 out of 10, so very, very severe pain.

[00:18:34] Speaker 00:
One example is Dr. Dranguis's examination.

[00:18:37] Speaker 00:
He noticed that she was in no distress.

[00:18:40] Speaker 00:
He noticed that she, quote, sat comfortably throughout the examination.

[00:18:44] Speaker 00:
He noted that she could walk 20 feet without difficulty.

[00:18:48] Speaker 00:
He noted she had complained that she had marked sensitivity to touch, which would be a fibromyalgia pain, right?

[00:18:55] Speaker 00:
He observed, quote, no findings.

[00:18:57] Speaker 00:
on the exam to substantiate that.

[00:19:00] Speaker 00:
So the LJ relied on that.

[00:19:01] Speaker 00:
And I'd also note that the LJ, when discounting, for example, Nurse Hardison's opinion, one of the sites that the LJ provided was Dr. Dranguis' exam.

[00:19:12] Speaker 00:
All of the sites the LJ provided when discounting Nurse Hardison's opinion were elsewhere.

[00:19:18] Speaker 00:
The LJ described in more detail elsewhere in the decision.

[00:19:22] Speaker 00:
So the LJ cited to 5F1 through 5, that was Dr. Dranguis' exam, and then in CAR 1634, the LJ explained in detail those findings, some that would relate to scoliosis, some that would relate to fibromyalgia, some that would relate to both.

[00:19:37] Speaker 03:
Council, can you address the argument that your friend on the other side made that this is a case, rare circumstance in which we should remand for an award of benefits?

[00:19:47] Speaker 00:
There are multiple doctors who opined that she would not have disabling limitations.

[00:19:55] Speaker 00:
When there are conflicts in the record, including that's Treichler, Washington v. Kijikazi also speaks to that.

[00:20:01] Speaker 00:
This court cannot remand for a finding of disability.

[00:20:06] Speaker 00:
We have multiple conflicts in the record.

[00:20:08] Speaker 00:
I would also note for her physical limitations, every single physician

[00:20:13] Speaker 00:
who assessed her functioning believed that she could work with more physical abilities than the ALJ found.

[00:20:20] Speaker 00:
The ALJ found her more limited than every single physician possessed.

[00:20:25] Speaker 00:
The ALJ discounted the opinions of two non-physicians, a chiropractor and a nurse, and the ALJ needed to only provide germane reasons to discount that evidence.

[00:20:35] Speaker 00:
But we have ample evidence.

[00:20:37] Speaker 04:
You say we can discount

[00:20:39] Speaker 04:
Dr. Briggs, because he's a chiropractor rather than an MD?

[00:20:43] Speaker 04:
That's what you're saying?

[00:20:44] Speaker 00:
No.

[00:20:45] Speaker 00:
What I'm saying is the standard for discounting his opinion is lower.

[00:20:49] Speaker 04:
Because?

[00:20:50] Speaker 00:
Because he is a chiropractor.

[00:20:52] Speaker 04:
That was my question.

[00:20:53] Speaker 00:
Yes.

[00:20:53] Speaker 00:
You cannot discount him simply because he is a chiropractor.

[00:20:57] Speaker 00:
However, the standard for discounting his opinion is lower under the old medical regulations.

[00:21:02] Speaker 04:
I think that's two different ways of saying the same thing.

[00:21:05] Speaker 04:
He's being discounted.

[00:21:08] Speaker 04:
compared to an MD because he's a chiropractor.

[00:21:13] Speaker 00:
The ALJ provided germane reasons and that is the standard for discounting a chiropractor.

[00:21:17] Speaker 00:
So under the old medical regulations, physicians' opinions get more weight.

[00:21:22] Speaker 01:
But with respect to the nurse who has some proximity and this question of how many days might you miss per month, the nurse says and explains due to fibromyalgia cause being episodic depending on activity,

[00:21:38] Speaker 01:
and amount of stress and then checks the box at four.

[00:21:43] Speaker 01:
That's a very clear explanation, isn't it?

[00:21:45] Speaker 01:
Why is that discounted?

[00:21:47] Speaker 00:
Well, the ALJ didn't rely on her explanation to discount that opinion.

[00:21:50] Speaker 00:
The ALJ provided two reasons.

[00:21:53] Speaker 00:
One was it wasn't supported by her treatment notes.

[00:21:56] Speaker 00:
Her treatment notes do not contain, for example, tender point examinations, which should be objective evidence supporting fibromyalgia.

[00:22:03] Speaker 00:
The ALJ cited to treatment notes where she's denying symptoms that would be related to all body pain or fatigue, which also is related to fibromyalgia.

[00:22:12] Speaker 00:
The ALJ discusses that on 1636 to 1637.

[00:22:15] Speaker 00:
Again, the ALJ cites treatment records saying no acute stress.

[00:22:21] Speaker 00:
So our treatment records, at least in terms of our objective findings and in terms of some of the statements that Peterson made to nurse Hardison, are relatively unremarkable.

[00:22:31] Speaker 00:
The LJ also relied on its inconsistency with other medical records.

[00:22:36] Speaker 00:
Nurse Hardison did not base her opinion solely on fibromyalgia, though she did specifically reference fibromyalgia for her days being off work.

[00:22:44] Speaker 00:
Correct.

[00:22:44] Speaker 00:
She also said scoliosis on CAR 1241.

[00:22:49] Speaker 00:
She said because of her scoliosis, she would be unable, severely limited,

[00:22:54] Speaker 00:
to perform basic work activities, including sitting, standing, walking, lifting, carrying, manipulative, and because her fibromyalgia, she'd have market limitations, so slightly less in those same areas.

[00:23:07] Speaker 00:
The ALJ cited, as I mentioned earlier, to Dr. Dranguis' exam, where she's sitting comfortably, she's in no distress, she's walking without difficulty, where he doesn't see findings consistent with her allegations of market sensitivity to light touch.

[00:23:22] Speaker 00:
The LJ also cites to 21F2.

[00:23:24] Speaker 00:
On 1628, the LJ describes that site as, again, she's denying back pain, joint pain, muscle pain.

[00:23:32] Speaker 00:
The LJ also cites to 31F4, when discounting Nurse Hardison's opinion.

[00:23:39] Speaker 00:
On CAR 1630, the LJ explains that site in more detail, where she's saying she's not taking anything for her pain.

[00:23:47] Speaker 00:
That's including ibuprofen, Tylenol, heat, or ice.

[00:23:51] Speaker 00:
So she is indicating that she's very conservative treatment, if treatment at all, which is also inconsistent with both her allegations as well as Nurse Hardison's assessment of debilitating pain.

[00:24:04] Speaker 03:
Okay, Counsel, you're over time.

[00:24:06] Speaker 03:
Thank you for your argument.

[00:24:11] Speaker 02:
Thank you, Your Honor.

[00:24:12] Speaker 02:
This is a lengthy record.

[00:24:13] Speaker 02:
There's over 1,900 pages in this record.

[00:24:16] Speaker 02:
There's hundreds of pages of chart notes.

[00:24:20] Speaker 02:
There's hundreds of pages of chart notes from Dr. Briggs.

[00:24:22] Speaker 02:
There's hundreds of pages of chart notes from Yakima Neighborhood Health Services, where both the psychologist Dr. Ulmer, who did two disability exams that are both disabling, and the nurse practitioner with the doctor's degree, A.R.N.P.

[00:24:42] Speaker 02:
They both, Dr. Omer and Dr. Harsin, both worked at Yakama Neighborhood Health Services.

[00:24:47] Speaker 02:
The only contrary evidence in this file are two consultative exams that were done early in 2017 by Dr. Drangas and Dr. Liddell.

[00:24:56] Speaker 02:
They didn't have Yakima neighborhood health services records.

[00:25:00] Speaker 02:
They didn't have all of Dr. Briggs records.

[00:25:02] Speaker 02:
Most of these records were after May of 2017 when they did this.

[00:25:08] Speaker 02:
As soon as she filed for the claim, Social Security sent her out for two independent one-time exams, one physical and one mental.

[00:25:16] Speaker 02:
And that's what the ALJ latest had on those exams.

[00:25:19] Speaker 02:
And he said, I give them great weight because they saw the person.

[00:25:23] Speaker 02:
Well, back then, that was part of the hierarchy.

[00:25:26] Speaker 02:
But the highest hierarchy was a treating provider that saw the person and the length of the treatment.

[00:25:31] Speaker 02:
He doesn't mention that.

[00:25:32] Speaker 02:
In case law on the Ninth Circuit says that is enough for reversible error alone if the ALJ doesn't consider the factors of the treatment and the length of the treatment.

[00:25:41] Speaker 04:
If we remand for reward of benefits, I get what happens, that's reward of benefits.

[00:25:46] Speaker 04:
On the other hand, if we do not remand for reward of benefits, but rather remand for something else,

[00:25:52] Speaker 04:
What are we remanding for?

[00:25:55] Speaker 02:
We're remanding for I would say for legal error because the ALJ credited Dr. Klein and the VE clearly said that

[00:26:08] Speaker 02:
she could not work and would be disabled and would lose her jobs as she did.

[00:26:13] Speaker 02:
So that should be reevaluated.

[00:26:16] Speaker 02:
We'd want to remand because the ALJ gave in his RFC residual functional capacity, he said she can only interact with supervisors occasionally.

[00:26:26] Speaker 02:
That's significant because the Ninth Circuit in an unpublished decision just recently remanded for immediate award of benefits on the same facts where

[00:26:34] Speaker 02:
The person, the ALJ said they could only occasionally interact with supervisors and the VE testified during the training period that more than occasional interaction with supervisors is required.

[00:26:48] Speaker 02:
The vocational expert in this case, Ms.

[00:26:50] Speaker 02:
Cramer, that had the 30-some years of experience actually wrote a letter to the ALJ in response to interrogatories after the hearing that's in the file and said that a person during the training period needs more than two and two-thirds hours

[00:27:03] Speaker 02:
That's the higher end of occasional is two and two thirds hours, because it's up to one third of the workday.

[00:27:08] Speaker 02:
Anything more than that is frequent.

[00:27:10] Speaker 02:
Said they would need that.

[00:27:12] Speaker 02:
So this is the exact same case where the RFC for occasional supervision, because she's limited in how much she can deal with other people, because she can't get through the training period on that.

[00:27:26] Speaker 02:
And that's another indication of why she lost some of her jobs.

[00:27:31] Speaker 03:
Council, can you take a moment here to wrap up?

[00:27:33] Speaker 03:
Your time is up.

[00:27:34] Speaker 02:
Yeah.

[00:27:35] Speaker 02:
I think I'm done, Your Honor.

[00:27:36] Speaker 02:
Thank you so much.

[00:27:37] Speaker 03:
All right.

[00:27:37] Speaker 03:
Thank you very much.

[00:27:37] Speaker 03:
Thank you to both counsel for your argument.

[00:27:40] Speaker 03:
This case is now submitted.