[00:00:00] Speaker 00:
And if council would like to come forward and just let us know how much time you would like to reserve for rebuttal.

[00:00:06] Speaker 03:
I would like to reserve two minutes.

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

[00:00:10] Speaker 03:
I'm James Tree, or some people call me James Namu.

[00:00:15] Speaker 03:
I'm pleased today to be able to represent Ms. Brambilla in this disability claim. Understanding her history is essential to understanding her impairments and understanding why There was a consensus, 12 different medical opinions that were given, all saying that she could not sustain full-time work. Why were those so consistent? Why does she have these disorders, migraine headaches, pseudo-seizure disorder, many mental impairments?

[00:00:52] Speaker 00:
Ari, since the time is short, would you mind if we went to questions? You bet. Would that be all right? I'd love that. Okay.

[00:00:59] Speaker 00:
On the migraines, I see your point that the ALJ only relied on one incident. He said, for example, and listed the one from, I guess it was Dr. Lee. But we look at the ALJ's reasons and we look at what's in the full record. And there are other pieces of evidence that support that. And I just wanted to go through, you know, in the 2020 hearing when she was asked, how often do you have a migraine?

[00:01:30] Speaker 00:
if you take your medicine, though, do you still have it? She says, no. If I take my medicine on the clock, I will not have a migraine, maybe one a month, maybe if I'm under terrible stress. But if I take my medicine, as indicated, I will be okay. And then you have Dr. Kazansky, August 10, 2020.

[00:01:49] Speaker 00:
Currently, she has about one migraine episode a month. And then when she went, she was represented by council. She went to the physician assistant, Lauren Holman, to specifically fill out her disability form on both May 18, 2021 and June 23, 2022.

[00:02:08] Speaker 00:
She does not mention migraine at all. And this was specifically for the purpose of filling out her disability forms. So I guess my, you know, we look at the ALJ's reasons. The ALJ said what I think is inconsistent in the testimony is the frequency of the migraines and headaches. And I think the treating records don't document the frequency that she describes.

[00:02:37] Speaker 00:
So how are we to consider that there are significant other pieces of the record that would support that finding?

[00:02:47] Speaker 03:
Yeah. Well, our argument is regarding migraines is we're not so much contesting what the ALJ said about it. What the ALJ's finding was that she had at different times in the record, she had frequent headaches, but migraines, but they reduced to two a month, one to two a month at their best. And that was the ALJ's finding. And what our point is, is even that is disabling because the vocational experts said that if a person misses, can only miss from zero to one day of work per month.

[00:03:19] Speaker 03:
So if they miss more than one day per month, they're not going to be employable.

[00:03:22] Speaker 00:
But what do we do with, she went to the physician assistant to fill out her disability form, doesn't mention any migraines, any headaches at all. This is 1107 and 1141 of the record. Why couldn't the ALJ have relied on that to say, I find that treating records don't document the frequency of headaches that she describes?

[00:03:47] Speaker 03:
In Social Security disability cases, it's improper for the court to superimpose what the ALJ could have said. We can only adopt what they did say, and if they did not say the proper things, that's legal error. And so what the ALJ said is that she has headaches at best, the lowest amount is one to two per month.

[00:04:09] Speaker 00:
Well, I'm going to quote it. It says, treating records also do not document migraines or headaches of the frequency she has described. Then she says recently, for example, and then the statement that you're saying.

[00:04:24] Speaker 03:
That's not I guess migraines are important part of it, because with the ALJ's findings, she's disabled from one to two migraines a month.

[00:04:35] Speaker 03:
But the most important thing, I think, to understand about this case is that this lady.

[00:04:43] Speaker 03:
She came from a dysfunctional home. Her mother was alcoholic, who often left her alone when she was a young child.

[00:04:49] Speaker 02:
Well, let me follow up what Judge Koh is asking you.

[00:04:53] Speaker 02:
In the record, her headaches began in 2007, following a car accident.

[00:04:59] Speaker 02:
There's a July 18, 2017 progress note by the physician assistant, Lauren Holman, indicating that these migraines were not very frequent. But from then onward, She began to report more frequent migraines, and by November 2017, for example, she reported experiencing 15 migraines per month.

[00:05:23] Speaker 02:
Is there anything in the record that explains why the frequency of her migraines increased so drastically in 2017?

[00:05:30] Speaker 03:
I believe so, Your Honor.

[00:05:34] Speaker 03:
First of all, migraines and pseudo-seizure disorder, three of the primary reasons to To have these, or three substantial reasons, is a reaction to stress, a reaction to past traumatic events, and a reaction to pain.

[00:05:52] Speaker 02:
Is that in the record?

[00:05:56] Speaker 03:
That is... Much of that is in the record, yes. All right.

[00:06:02] Speaker 01:
What are we to make of this pseudo-Caesar disorder? How often is this happening, and how debilitating is it?

[00:06:10] Speaker 03:
So... The pseudo-seizure disorder, she went to Harborview Medical Center seizure clinic. This is another error the LJ made. She said she had no inpatient, but she had an inpatient to study her seizures to see if they're epileptic or pseudo-seizures. They found her seizures were real. They witnessed them while she was in the hospital on inpatient stay. They videotaped them. They said they were real. They were pseudo-seizures. She has them at variable amounts of time. A lot of it, they're brought on by stress.

[00:06:41] Speaker 03:
and past traumatic events that she's had in her life, which are very, very significant, Your Honor.

[00:06:47] Speaker 03:
So they're very variable. What the ALJ, we believe the ALJ's error was not in finding that they were severe, which she did find they were severe, but was in not discussing the frequency and how they affected her. For example, they noted when she saw Dr. Lee, the neurologist, she had a pseudo seizure in front of him. Her longtime principal care provider is physician's assistant Holman, who's treated her for over 13 years, and he witnessed them. She couldn't speak during those times she had them.

[00:07:19] Speaker 03:
She had communication disorder, and the ALJ says there's no indication of any communication problem in this record. That's clear error. They were all noted that they had them, and she had significant problems with them. They vary from age. one to two a month to she was having them multiple times per day. And it varies based on her stress and her reaction to it. And that's why it's important for her not to be pushed out into, because one of her coping mechanisms is to retreat.

[00:07:51] Speaker 03:
And that was one of the big errors that the ALJ made, I think.

[00:07:55] Speaker 00:
Can I ask you, why didn't she testify about the pseudo seizures during the 2023 ALJ hearing? She did testify about it at the 2020 hearing.

[00:08:04] Speaker 00:
And she was represented by counsel in 2023. Yeah. Why was that?

[00:08:08] Speaker 03:
They were well-documented by that time in the record, very well-documented.

[00:08:12] Speaker 00:
Okay. So you're not arguing that the ALJ erred in discounting her testimony to frequency or severity because she didn't testify to it with regard to the RFC? Yeah, go ahead. Sorry.

[00:08:22] Speaker 03:
I apologize.

[00:08:24] Speaker 03:
The error was in the ALJ found them to be severe, but the ALJ gave nothing in the RFC indicating – how they affected her.

[00:08:37] Speaker 03:
Absenteeism from work. 12 opinions that she would be absent from work. 12 out of 12. Nobody gave contrary opinions except DDS who only reviewed 24% of the record. They didn't have the record because they reviewed it back in 2018 and early 2019.

[00:08:53] Speaker 02:
Can I ask you to explain more specifically how you think the ALJ failed to account for her obesity?

[00:09:00] Speaker 03:
Yes. So The Social Security ruling on obesity says that obesity will compound problems like lumbar problems, where you might have a lumbar problem. Like in her case, she has mild degenerative disc disease. That would normally say, okay, a person is not going to have a substantial problem with that. But when you compound that on top of a person with a BMI of the 50s to 60s, where BMI of 30 is obese, BMI 40 is morbidly obese, and she's 50 to 60.

[00:09:35] Speaker 03:
What the Social Security Agency policy is, is that ALJs need to understand that although the x-rays show mild disorders, that will compound it to a very severe level. And that's what she failed to appreciate or articulate in her decision.

[00:09:52] Speaker 02:
Has Ms. Bramble ever held a job that would qualify a substantial gainful activity? Never.

[00:09:59] Speaker 03:
That was one of the ALJ's errors was that she said that she was discounting her complaints of migraines because she said she'd had them for 10 years. And during that 10-year period, she had worked. But when you look at the certified earnings record from Social Security, you'll see eight of those 10 years, she didn't work at all. She had zero earnings. One year, she had $1,000 of earnings for the whole year. Another year, $3,000 for the whole year.

[00:10:28] Speaker 03:
But the ALJ said that's why she discredited her. And there was three or four places in the decision where the ALJ said her past work discredits her.

[00:10:37] Speaker 01:
What can I do with the fact that she's apparently able to care for five children plus, I guess at times, a nephew?

[00:10:46] Speaker 01:
Five kids is a lot of kids to take care of.

[00:10:48] Speaker 03:
That is.

[00:10:50] Speaker 03:
But what the ALJ, what the Social Security is a non-adversarial right proceeding. It's an inquisitorial according to the Supreme Court. The ALJ is more than an umpire. They need to evaluate evidence for and against. This was a critical error that the ALJ made that requires reversible error because we don't get to substantial evidence until the first the ALJ evaluates both evidence for and against the proposition. The ALJ over and over again only evaluated evidence to prove that she wasn't disabled but didn't speak of evidence that she was.

[00:11:25] Speaker 03:
This is a perfect example, Your Honor. when we're talking about the activities of daily living and taking the children, because she didn't mention that she falls asleep when she's watching small children. She didn't mention that she gets help from her mother, from her sister, and from her neighbor, and from her older kids that were teenagers. She didn't mention that twice a month, on average, the kids miss the school bus, and she's not able to take them to school because she's not feeling up to it, and so the kids miss school on the average twice per month.

[00:11:56] Speaker 03:
ALJ was silent on that. So we don't get the substantial evidence because she committed reversible legal error by not articulating those reasons and then giving Then if she had articulated those and gave reasons why she was accepting one over the other, then we get to substantial evidence. But the law is clear by this court that if an ALJ fails to address a source of statements that would compel disability, the ALJ harmful errors. That happened with physician's assistance. Holman, 13-year primary care physician.

[00:12:27] Speaker 00:
Can I ask you a question about the pseudo-seizures? It seems like there's a different error because the ALJ says there's no specific listing for pseudo seizures, so I'm going to use the epilepsy listing. But then the epilepsy listing specifically says we evaluate psychogenic seizures and pseudo seizures under the mental disorders listing that's 12 and not 11, which is for epilepsy. It says that, again, we do not count.

[00:12:59] Speaker 00:
under 1102, which is the epilepsy one. It says we evaluate these seizures under mental disorders, which is listing 12.

[00:13:09] Speaker 00:
And so if you go to listing 12, there are four criteria that she would have to meet.

[00:13:15] Speaker 00:
And, you know, the understanding, remember, apply information, interact with others, concentrate, persist, or maintain pace, adapt or manage oneself. And the ALJ, in order to qualify for under paragraph B criteria, which is these four, you have to have either one extreme limitation or two marked limitations, and the ALJ found all of those were moderate, and you're not appealing that because it's the same paragraph B criteria for her other disorders, anxiety, depression, personality disorder, trauma, 1206, 1204, 1208, 1215, all have the same criteria.

[00:13:57] Speaker 00:
criteria as somatic symptoms so that that i suspect that's why the government didn't defend because the alj committed that error using the wrong listing but if we look at the right listing then we're not in the category of you get what you get um uh once a month uh generalized tonic-clonic seizures for at least three consecutive months, which is the only criteria for if it were an epileptic one.

[00:14:33] Speaker 00:
And instead, you fall into this category. And then you agree you didn't appeal this. She's not going to qualify for criteria B if we use the right listing for pseudo seizures. It's really more mental health disorder and not epileptic physical disorder.

[00:14:47] Speaker 03:
Yeah, we agreed that if she did. you could use the epileptic listing. She would meet the listing. She would meet that listing because of the frequency. But you can't. You're right. She has to use the mental listings.

[00:14:59] Speaker 00:
Why didn't you raise that in your brief? You kind of forfeited this issue because you didn't raise it that they used the wrong listing. You just kept saying we qualify under the epilepsy listing.

[00:15:12] Speaker 03:
What our point is, is it's not so much the listing, it's the residual functional capacity. There the ALJ, and we made this argument, there the ALJ said there's no communication problems in the file. Clearly there's communication problems while she's having these series that she can't talk. She stutters. It's been witnessed by her neurologist, by Harborview Medical Center, by her 13-year treating physician. They've seen them. They've documented it in the record. She does have communication problems.

[00:15:43] Speaker 00:
Okay, but I understand your argument, but I just want to – you do agree – that the epilepsy listing is the wrong criteria for a pseudo seizure.

[00:15:52] Speaker 03:
Right. And she didn't properly evaluate the RFC.

[00:15:55] Speaker 00:
So then why are you continuing to argue the epileptic criteria if you agree that that's the wrong one to use for a pseudo seizure? Yeah.

[00:16:05] Speaker 00:
Because in your brief, you keep saying she meets the epileptic criteria. She's had one for three consecutive months.

[00:16:11] Speaker 03:
Like, yeah, if that's a legal.

[00:16:13] Speaker 00:
Yeah.

[00:16:13] Speaker 03:
Not that she meets the listing so much is that by analogy. What's the purpose behind the listing? It's that a person is presumed disabled if they have this level of impairment.

[00:16:25] Speaker 03:
And so it's not so much meeting it as it is equaling it. So she has the same type of manifestations and the same type of limitations. So it equals what they're talking about in the epileptic listings. If you have one a month, it's so disruptive. We're going to presume you're disabled. You don't have to prove that you can go back to your other work or you can do your past work or other work. You're automatically disabled.

[00:16:50] Speaker 02:
Well, let me ask you this. The ALJ noted that her mental health issues were primarily triggered by situational stressors and did not require inpatient hospitalizations, and that she remained generally independent in her daily activities despite those mental health issues. Is it reasonable to read into the decision as saying that Ms. Brambilla's pseudo seizures, which were psychogenic in nature, were not as limiting as alleged for substantially these same reasons?

[00:17:21] Speaker 03:
No, I don't think so. I don't agree. I wouldn't agree with that, no.

[00:17:26] Speaker 03:
I think that the ALJ's findings were that she did have severe psychogenic seizures. Then the ALJ was silent. on the effect of those, the frequency of those, and that was clear legal error because they are of such a frequency. We can see by analogy they're of more frequency than the epileptic lesions, although the epileptic listings don't apply. By analogy, they do apply because they show that a person who has them of that frequency doesn't have the ability to sustain full-time work.

[00:17:58] Speaker 03:
And every treating and examining person that looked at this record opine that she cannot do full-time work. That's consistent, that's supportable. The only two that didn't were the DDS guys that saw this case early on back in 2018 and early 2019.

[00:18:17] Speaker 03:
By the time we get to the second ALJ hearing is 2023, and there's over 600 additional pages of medical records. They only reviewed less than 24% of them.

[00:18:30] Speaker 03:
This decision is not supported by by the many errors that the ALJ committed. The bigger trigger to me is that the ALJ failed to discuss the evidence that supports disability. Yeah, she picked out, she cherry-picked evidence out of the record that supports non-disability, but she failed to discuss the evidence that supports. At page 25 of our brief, we list 70 specific examples of mental health impairments that were not benign.

[00:19:02] Speaker 03:
Yet the ALJ said her mental health situation shows it's benign, and then she goes through and scours the record to find every time when there's something normal and puts it in there, but fails to list any of the 70 that were non-benign. And those are specifically listed in our brief, and they're significant. They're paranoia. There's all sorts of them. There's things that are very significant, and that's

[00:19:28] Speaker 00:
Excuse me. You're over nine minutes over your time. Let me see if my colleagues have any questions. I'll give you two minutes for rebuttal, though. Let me see if.

[00:19:35] Speaker 00:
OK, thank you. But you'll have two minutes for rebuttal.

[00:19:38] Speaker 04:
Good morning. May it please the court. Jeff Staples here for the commissioner who asks that you affirm the district court's judgment. because substantial evidence supports the ALJ's fact-finding.

[00:20:01] Speaker 02:
Mr. Tapers, let me ask you.

[00:20:02] Speaker 04:
Please do, Your Honor.

[00:20:03] Speaker 02:
If Ms. Bramble was absent from work more than one day per month or off-tasked more than 10% of a workday, then would you agree she can't sustain substantial gainful activity?

[00:20:16] Speaker 04:
Yes, Your Honor.

[00:20:17] Speaker 02:
All right.

[00:20:17] Speaker 04:
Thank you. Here, however, Ms. Bramble had didn't have that amount of limitation. And the ALJ reasonably looked through the record as a whole and decided that while that was consistent with her allegations, it wasn't fully consistent with the medical record.

[00:20:38] Speaker 02:
But she alleged that her migraines caused memory problems.

[00:20:42] Speaker 04:
That's correct.

[00:20:42] Speaker 02:
The ALJ noted that no memory problems associated with her migraines are documented in the medical record.

[00:20:50] Speaker 02:
I understand why the absence of such documentation would justify discounting her allegations about memory problems, but why would it justify discounting other allegations about the severity and frequency of her migraines, specifically that they occur once or twice a month and lasted at least two days?

[00:21:08] Speaker 04:
Yeah, so the memory issues was one thing that she complained about related to the migraines, and the ALJ went through and documented why that was not consistent with the record. But that was not the only thing that the ALJ hung the proverbial hat on. There was a lot of other issues with inconsistencies as far as her statements about the headaches. You know, she did come and claim in front of the ALJ in 2023 that she was having these two headaches a month lasting at least two days.

[00:21:42] Speaker 02:
But did the ALJ say that's why she's discounting the severity and frequency of the migraines? Yes.

[00:21:47] Speaker 04:
Yes, the ALJ said that her testimony about the frequency and severity was not consistent with other evidence in the record, including, for example, evidence showing that she was having only one to two mild headaches a month of short duration, and that's at 1030 and 1196. Moreover, as Judge Koh was pointing out at the first administrative hearing, she said her headaches are essentially under control on Topamax, So if she takes it regularly as it's prescribed, she's not having any headaches.

[00:22:21] Speaker 04:
And that's at 49 to 50 of the administrative record.

[00:22:25] Speaker 04:
Then at 1141, she's talking to her primary care provider, and to fill out disability paperwork doesn't make any mention of the headaches. So, you know, the inconsistency between what she said about her memory problems and the normal memory findings, that was one thing. Then there was the other inconsistency, between what she said about the frequency and duration with the other evidence in the record showing that her headaches were under much better control on medication than she let on at the administrative hearing.

[00:22:56] Speaker 02:
Well, the ALJ found that the treating records do not document migraines as frequently as Bramble alleges.

[00:23:03] UNKNOWN:
Yes.

[00:23:04] Speaker 02:
But for support, the ALJ cites only two pages from the entire record.

[00:23:09] Speaker 02:
Those pages are notes from Ms. Brambola's treating neurologist on June 9, 2020 and on January 23, 2023. And it's the same note in each document, namely under the history of illness section, the notes state that Ms. Brambola began taking medication in August 2018 that helped reduce her headaches to one or two per month of short duration. This looks like a bit of cherry picking, doesn't it? on the record. Why does the cursory notation in pages two of the records amount to substantial evidence to discount her allegations?

[00:23:42] Speaker 02:
Concerning her migraines, especially when there are plenty of other records reflecting that from 2019 onward, Ms. Brambler complained of more frequent and severe headaches.

[00:23:52] Speaker 04:
Yeah, that's a fair question. I think, you know, if there were only this one citation in the entire record and everything else went the other way, we'd be having a different discussion. I think the ALJ was using that, I believe the ALJ used the phrase, for example. So I don't think the ALJ thinks that this is the only time in the record that this occurs. There are other instances in which she complains of longer duration and more frequent headaches, but there are also places where she admits that her headaches are under much better control than what she said at the administrative hearing.

[00:24:31] Speaker 04:
The use of that one example, I don't think that deprives the court of the ability to go through the record as a whole, as the ALJ did, and find those examples where the medical record just doesn't quite line up with what she's saying about the frequency and duration of her headaches.

[00:24:49] Speaker 02:
Have you done that?

[00:24:51] Speaker 04:
Yes, Your Honor. And I went through a few other examples here. At the first administrative hearing, she said she has no headaches as long as she takes her Topa Max. And then, you know, as Judge Koh was pointing out, she's filling out disability paperwork with her primary care provider and doesn't mention the headaches at all.

[00:25:13] Speaker 04:
I think that's a fair basis to conclude that she's, you know, maybe not admitting the full improvement that she experiences on the medication that she's taking for her

[00:25:29] Speaker 02:
Let's talk about her pseudo-seizure disorder. It looks like all the ALJ did was describe the disorder as non-epileptic, which no one disputes.

[00:25:39] Speaker 02:
It doesn't look like the ALJ gave any specific reasons for discounting her allegations concerning the severity and frequency of her non-epileptic seizures like episodes.

[00:25:50] Speaker 02:
Describing her diagnosis is not a reason for discounting her reports about the limiting effects of that diagnosis.

[00:25:57] Speaker 02:
I don't see anywhere in your answering brief that directly addressed the ALJ's treatment of Ms. Brambola's pseudo-seizure disorder. Do you want to address that now?

[00:26:08] Speaker 04:
Yes, Your Honor. Thank you very much for the opportunity to do so.

[00:26:12] Speaker 04:
So the ALJ at Step 2 found that the pseudo-seizures were a severe impairment, talked about them at Step 3 using the epilepsy listing.

[00:26:27] Speaker 04:
And then in the RFC section, had a few paragraphs explaining what these are, how they've been looked at by different treatment providers. And the conclusion of this is that her treatment of these is characterized as a mental impairment. So it's not a physical epileptic-like disorder that would be amenable to seizure medication, et cetera. This is something that her treatment providers think is best addressed in the context of a mental impairment.

[00:27:00] Speaker 01:
So why do we care? I mean, call it one thing, call it another. Describe the phenomenon without respect to the label. It's still the same phenomenon.

[00:27:09] Speaker 04:
Yes.

[00:27:11] Speaker 04:
But once it's characterized as a mental impairment, the ALJ has gone through and explained why the mental limitations that she's identified are not consistent with the record. So, you know, placing it in that context,

[00:27:26] Speaker 01:
I'm not sure I understand. That is to say you're saying the ALJ says what you're talking about, the frequency of these episodes is simply not true. And is that because of the label? I mean, I don't understand why the label makes a difference. The ALJ either is supported or not supported in finding that her allegations or statements about these, what they call pseudo seizures, is true. So.

[00:27:51] Speaker 04:
the ALJ went through and explained why her statements about her mental impairments were not consistent with other evidence in the record.

[00:27:58] Speaker 01:
Yeah, but calling it a mental impairment as distinct from something else doesn't make it true or not true. That just changes the label.

[00:28:05] Speaker 04:
Right.

[00:28:06] Speaker 04:
But when you label it as a mental impairment, now the ALJ's analysis of her mental impairments explains what the ALJ is thinking about the pseudo seizures.

[00:28:16] Speaker 02:
Did he say, and I didn't see anywhere where he said the reason he's, not given any specific reasons for discounting her allegations concerning the severity and frequency of her non-eleptic seizure-like episodes is because it's a mental impairment. I didn't see him say that anyway.

[00:28:31] Speaker 04:
No, I'm sorry, Your Honor. What I mean is that by when the ALJ characterizes the pseudo seizures as a mental impairment, now you have to look at the ALJ's analysis of the reliability of her statements about her mental impairments. And the ALJ went through and explained several reasons why those were not fully reliable. So you kind of fold the pseudo seizures in with that and see that, you know, they're really based around her stress and her anxiety, her alleged stress and anxiety.

[00:29:02] Speaker 04:
That's where she says these are arising from. But, you know, you look at something like her allegation that her anxiety won't let her leave the house, and then you've got her daily activities that include things like She says she goes to the park a lot with her kids. She's participating in her kids' schooling.

[00:29:25] Speaker 04:
She's caring for quite a lot of kids.

[00:29:28] Speaker 02:
Well, let me ask you. In Brown-Hunter v. Colvin, we explain that when discounting claimant testimony, an ALJ must identify the specific testimony she finds not credible and link that testimony to the particular parts of the record supporting her non-credibility determinations.

[00:29:46] Speaker 02:
In this case, when addressing Ms. Bramble's daily activities, the ALJ described those activities and then concluded that her ability to perform them suggests she's not as incapacitated as she described.

[00:29:59] Speaker 02:
But I don't see anywhere where the ALJ specified what aspects of her testimony were undermined by which activities. For example...

[00:30:11] Speaker 02:
The ALJ didn't say Ms. Bramble's ability to grocery shop indicates that she can have more public interaction than she has alleged or that her ability to help her children with homework indicates that she can concentrate better than she alleges.

[00:30:24] Speaker 02:
Do you think the ALJ's discussion of Ms. Bramble's daily activities adequately explains which of Ms. Bramble's allegations she thought were undermined and why?

[00:30:33] Speaker 04:
I see I'm out of time. Let me just take a few minutes to answer this question, though.

[00:30:40] Speaker 04:
Yes. I do think that the ALJ went through and explained which of Brambla's allegations the ALJ was discounting. So the ALJ at the front end of the analysis goes through and summarizes Ms. Brambla's allegations about her limitations.

[00:31:02] Speaker 02:
Does she specify what aspects of her testimony were undermined by which activities?

[00:31:07] Speaker 04:
The ALJ did not – go on a one-to-one basis of, you know, here's an allegation and here's an activity that undermines it. The ALJ has, at separate points in the decision, a summary of the allegations, right, that's at the front end, and then a summary of the activities, that's at the back end.

[00:31:25] Speaker 02:
Without matching them up.

[00:31:27] Speaker 04:
Doesn't do that exact linkage on a per-limitation basis. I don't think, you know, you quoted Brown-Hunter, and that's well taken.

[00:31:40] Speaker 04:
I'm not sure that, in my view, that that's what the court was getting at in that case, that you have to go through every single limitation if you're going to use a claimant's activities against them, that you'd have to go on a one-to-one basis. I think, can you take these allegations and can you hold them up against these activities And can you see any fairly characterized conflicts there?

[00:32:11] Speaker 04:
And I think you can in this case. This is a person who is saying she essentially can't leave the house. She's getting days-long headaches at the first hint of stress. But then on the other hand, you've got she's caring for many children, including several that are not her own.

[00:32:33] Speaker 04:
She's participating in their schooling. You know, I just think that it's fair to say that those two things don't really line up very neatly.

[00:32:44] Speaker 01:
But it doesn't sound like she's doing a very good job caring for these kids, as we just heard. I mean, she needs a lot of help. The kids miss school. I mean, we're not talking about a competent caretaker.

[00:32:54] Speaker 04:
Well, and, you know, to be fair, the ALJ didn't paint this as a one-sided record.

[00:33:00] Speaker 01:
Right. But I wanted to qualify what you're saying when it's You're making it sound as though, hey, she's got all these kids. She's doing a great job. No, she's got all these kids, and she's not doing a great job.

[00:33:10] Speaker 04:
So, yeah, the ALJ didn't find that she can just do the full range of all work. The ALJ found she had a really limited, especially mental, ability to work. So she's doing simple one- to three-step tasks. The ALJ agreed that she does have some problems, that she's not excelling in all these aspects of her life.

[00:33:32] Speaker 02:
Well, let me ask you this. Assume we find the ALJ erred in discounting her allegations concerning the severity and frequency of her migraines and her non-epileptic seizure-like episodes.

[00:33:44] Speaker 02:
If we credit those allegations, it appears Ms. Bramble would be incapable of sustaining substantial gainful activity because of absenteeism or being off-task too much.

[00:33:56] Speaker 02:
In that situation, why shouldn't we remand for an immediate award of benefits?

[00:34:01] Speaker 04:
So, for one thing, Well, let's start with the headaches.

[00:34:08] Speaker 04:
You would have to pick which allegations to credit, because on the one hand, at the 2023 hearing, she says she's having two headaches a month, two to four days or two to four headaches a month, two days long each. At the earlier hearing, she says that she's having no headaches so long as she takes her medication on time. So I think that that would be a conflict in the record. that would need to be resolved on remand.

[00:34:37] Speaker 04:
As for the pseudo seizures... So let me back up.

[00:34:40] Speaker 02:
You're saying when she testifies the last time, saying what her current condition was at that time, the ALJ could have credited the earlier testimony where she talked about what was happening in 2020?

[00:34:53] Speaker 04:
So in 2023, she was asked about the whole period. She was asked about 2018 on, and she said it was two to four a month, two days long. But back in 2020, she said it was under control. So I think that's a conflict that would need resolution on remand were the court to find a harmful error in this analysis. Likewise, for the pseudo seizures, I didn't really see any allegations specific to that in the most recent hearing.

[00:35:27] Speaker 04:
I think it was mentioned at one point, but she never said, here are my functional limitations. Moreover, The, you know, the people that have observed it have seen, you know, one to a couple of minutes of difficulty having a conversation. She says this happens one to two times a month. I don't think that by itself demands a finding of disability either. I think you would need to flesh out, you know, to what extent are these actually causing any problems, you know, beyond that.

[00:36:04] Speaker 04:
you know, maybe a couple of minutes a month communication difficulties.

[00:36:10] Speaker 04:
So I don't see that as a basis for a finding of disability either.

[00:36:17] Speaker 04:
I'm happy to answer any further questions.

[00:36:18] Speaker 00:
Yeah, I didn't get a chance to ask any questions so far, and I do have some for you. Feel free, Your Honor. Okay. So why is it not reversible legal error that the ALJ considered the wrong listing for the pseudoseizures and specifically said there's no listing for pseudoseizures, so I'm going to use The epilepsy ones. You agree that was a reversible legal error, wasn't it?

[00:36:38] Speaker 04:
I do not agree, Your Honor. So the ALJ considered the pseudo seizures under the epilepsy listing. Then he also considered all of her mental impairments under the listings, you know, 1204, 1206, 1208, 1215.

[00:36:52] Speaker 04:
So no matter where the seizures fall, they're not disabling at step three. And the ALJ made all the findings required.

[00:37:01] Speaker 00:
I would agree with that. because those weren't challenged, the moderate limitations on the paragraph B criteria. But is your argument then a harmless error one? Because I do think it was error for him to not use the right listing or she, pardon me, she.

[00:37:17] Speaker 04:
So I think.

[00:37:19] Speaker 00:
Is it a harmless error argument you're making or what kind of argument are you making?

[00:37:23] Speaker 04:
I, my primary argument would be no error because the ALJ considered all the, any listing that could possibly apply, the ALJ considered it. To the extent that the ALJ erred by not mentioning pseudo seizures as part of the 1204, 1206, et cetera, that's a harmless error because there's no evidence that they would contribute to additional limitations in the B criteria.

[00:37:53] Speaker 04:
So it's at most a harmless error.

[00:37:56] Speaker 04:
And I think since the ALJ considered all the listings – And that's that consideration is supported by substantial evidence. I think you could also fairly say it's no error, but at most harmless.

[00:38:08] Speaker 00:
OK, so let's look at the two paragraphs on 731 that address pseudo seizures.

[00:38:14] Speaker 04:
Do you want me to get my computer so I can follow along with you?

[00:38:17] Speaker 00:
That's a question for you. I'm not going to tell you what to do on this.

[00:38:25] Speaker 04:
Go ahead, Your Honor.

[00:38:27] Speaker 00:
So.

[00:38:28] Speaker 00:
The argument is this just talks about a diagnosis. It doesn't explain how it affects Ms. Brambilla's ability to work.

[00:38:39] Speaker 00:
So tell me where in there there's anything that explains how the pseudo seizures affect her ability to work.

[00:38:47] Speaker 04:
So I think.

[00:38:52] Speaker 04:
First of all, I think that's that's tough. Because she's not really talking about how they affect her ability to work at the administrative hearing. So she's not coming in presenting, you know, here's why my seizures, here's the ways in which my seizures limit my ability to work. Okay.

[00:39:11] Speaker 00:
And isn't that the ALJ's responsibility to put that in her opinion and say, this is how I think this works? impacts a residual functional capacity because there was no testimony as to that. But I don't see that here.

[00:39:25] Speaker 04:
So I think, well, when you're talking about, you know, is the LJ going to discount her statements?

[00:39:32] Speaker 04:
You know, you have to know what the statements are. You know, in what way does she even say that they limit her ability to work? You know, it doesn't really appear that she's bringing forth much evidence that that these are causing work-related problems.

[00:39:50] Speaker 04:
To the extent that they do, though, the ALJ goes through that treatment history.

[00:39:58] Speaker 04:
She's having the EEGs and et cetera, and they're finding they're not a physical impairment, they're a mental impairment.

[00:40:05] Speaker 04:
So I think what the ALJ is doing is folding those pseudo seizures into the analysis of the mental impairments. And when the ALJ is giving reasons to discount her statements about her mental impairments, I think that serves very well to discount any allegations she may have made about the limiting effects of the pseudo seizures. So, you know, for example, she's saying she has this, you know, debilitating anxiety.

[00:40:36] Speaker 04:
high stress response, but the record kind of shows that maybe that wasn't as severe as she was claiming. I think that's what covers the analysis of the pseudo seizures as far as the reasons to discount her allegations. So that's kind of how I read the ALJ's decision.

[00:40:56] Speaker 00:
What are we to make of the fact that she didn't testify in 2023 to pseudo seizures?

[00:41:01] Speaker 04:
I make of it that they didn't caused her significant functional limitations. You know, she's represented by an attorney. This is the time to bring forth anything that you think is causing you problems.

[00:41:15] Speaker 04:
At the first hearing, she wasn't represented. And that's, you know, we could give more latitude maybe in that instance. But when you're there with an attorney, I think most people tell the ALJ everything that's wrong with them.

[00:41:28] Speaker 04:
You know, and that interpretation is consistent with, you know, Dr. Ginth's did an examination. He saw her have one of these and it's just, she stutters for about a minute. Um, she, you know, has difficulty communicating for that minute. And then she says these happen a couple of times a month. So I don't really think, you know, that to me doesn't sound, um, it doesn't sound pleasant certainly, but, um, it's, you know, I think it's, it's difficult to, you can, you can take that together with her failure to discuss it and see maybe, You know, this isn't causing the most limitations.

[00:42:08] Speaker 01:
But there's evidence in the record that they're much more frequent at times.

[00:42:14] Speaker 04:
Yes. Yes. There is some evidence, you know, maybe suggesting that she's having more of them at times.

[00:42:25] Speaker 04:
But to the extent that they're, you know, kind of linked with her.

[00:42:31] Speaker 01:
There are records at several points. That she's getting multiple episodes per week.

[00:42:38] Speaker 04:
Yes, and I think she – there is evidence that a reasonable fact finder could take this and go a different direction.

[00:42:53] Speaker 01:
Are you saying that a reasonable fact finder can disbelieve her on this point? Yes. Is that what you're saying? I am. I'm saying there's – She's just not telling the truth about this.

[00:43:03] Speaker 04:
Well, I mean, call it what you will, I don't think her allegations fully line up with all the evidence in the record. I don't think that's the ALJ saying she's lying, but to some extent, her allegations are not lining up with other evidence in the record, including her extensive childcare activities, including other evidence showing that her conditions are under much better control then she's come into the hearing and alleging.

[00:43:35] Speaker 04:
So I think the ALJ is entitled to rely on that as, as more than a mere scintilla of evidence, um, supporting the ALJ's findings and, and because substantial evidence supports the ALJ's findings, the court should affirm.

[00:43:48] Speaker 00:
Okay. You've gone over your time. So let me just see if any of my colleagues have any more questions.

[00:43:53] Speaker 02:
I just have one question. You're saying the ALJ said they didn't line up, but didn't, uh, identify the specific testimony she finds not credible and didn't link that testimony to the particular parts of the record supporting her non-credibility determination. Drew?

[00:44:16] Speaker 04:
I think on many points the ALJ did specifically line up allegations with the medical record. You know, for instance, we've talked about the alleged memory problems. And the ALJ went through and said she alleges these memory problems, but the medical record shows she actually has no memory problems. So, you know, on the frequency of the headaches, you know, she comes into this hearing and says she's having two to four a month lasting two days. But the medical record shows.

[00:44:45] Speaker 02:
Well, let's specifically talk about the allegations concerning migraines and pseudoseizures. The LAG didn't line those up, did she?

[00:44:53] Speaker 04:
Did line up on the headaches, the migraines, yes. you know, lined up, you know, on the one hand, you have her saying they occur with this frequency in this duration. And then here's medical records showing they are a much less frequent and of much shorter duration. So I do think the LJ lined up many allegations with specific citations to the record. You know, we were talking about didn't do that on activities. But I think when you look at allegations as a whole that the ALJ considered and explained in the decision, and then you take a look at the activities that the ALJ was relying on, I think you can fairly see that those are in some degree of tension or conflict.

[00:45:39] Speaker 02:
And while the ALJ didn't, you know... But we're supposed to figure out what she meant then?

[00:45:44] Speaker 04:
Well, I think you can see what the ALJ meant.

[00:45:47] Speaker 02:
I don't think... You didn't specifically say it, but we can, from what

[00:45:50] Speaker 04:
The ALJ did say that her activities don't line up with her allegations. The ALJ didn't say this activity doesn't line up with this allegation. But I think when you're looking at it, you look at the decision as a whole.

[00:46:05] Speaker 04:
The ALJ does say that these are in conflict. And I think when you look at them together, I think you can characterize that as a fair conflict that a reasonable person could rely on to support that conclusion that the ALJ drew in this case. Okay. Thank you. Thank you, Your Honors.

[00:46:21] Speaker 00:
Okay. Thank you.

[00:46:26] Speaker 00:
I'll give you more time since he went about 16 minutes over his time. We'll just finish until any of my colleagues don't have any more questions. Okay. Go ahead, please.

[00:46:35] Speaker 03:
I see a reoccurring theme in this case. I've been doing this a long time, social security practice, almost 40 years now. And this is one of the most obvious cases I've seen where one side of the evidence is presented, but not the other side. when both sides are presented as required in Social Security law and was required by this circuit, then we can have a discussion about substantial evidence. Let me give you, can I just give you two examples? Memory problems. The ALJ at Excerpt of Record 49 and 50, she says, and quote, no memory problems are documented in the record.

[00:47:09] Speaker 03:
She fails to note that Dr. Lee, the neurologist that was treating her for her pseudo seizures and was treating her for her migraines and is board certified neurologist, stated at 374 and 1043 in his assessment, quote, patient does have memory problems, end quote. That was in her assessment. In 10 additional places in that record, he noted in the history that she had memory problems. And those two particular ones he noted in his assessment she had it.

[00:47:39] Speaker 03:
Other mental health providers did note memory problems. For example, at 1273 and 1281 are just two of many examples.

[00:47:47] Speaker 03:
The ALJ cherry-picked the evidence in this case, didn't mention any of those, but mentioned no memory problems. That is a fatal error.

[00:48:00] Speaker 03:
In Hollihan, this court said, made a holding that an ALJ cannot selectively rely on some entries in plaintiff's records while ignoring others.

[00:48:11] Speaker 03:
As regards to...

[00:48:16] Speaker 03:
her activities of daily living or self-directed activities. She didn't mention the problems she had in that area. She only mentioned the things that she did. Not that she needed substantial help. Not that she missed taking the kids to school. Not that she fell asleep while watching small children. Not that she had teenagers that helped take care of the children.

[00:48:33] Speaker 00:
She had one teenager. The four daughters were 8 to 12.

[00:48:36] Speaker 00:
And her siblings trusted her. Her sister trusted her to take care of her infant daughter. And another sibling trusted her to take care of her nephew. But That's neither here nor there. I do have some questions for you.

[00:48:49] Speaker 00:
So if I look at Dr. Physician Assistant Holman, this is May 18, 2021.

[00:48:59] Speaker 00:
She says diagnosis was pseudo seizures and she was advised to continue mental health care. Patient says that she has not had a pseudo seizure in about a month. When I asked if anything has changed in her life, she says that some bothersome people have not been around her lately. So she may B, she's doing better.

[00:49:16] Speaker 00:
So can you address, I understand your argument that how do they tie the pseudo seizures discussion to the RFC. Can you address your opposing counsel's argument that because it folds into mental health care, you then look at the mental health discussion and then that, you know, the paragraphs that follow that discuss the mental health and how that impacts her RFC, that that should cover also the pseudo seizures.

[00:49:47] Speaker 03:
Yes. So the mental health discussion by the ALJ we feel was riddled with legal error. One, she said she had no memory problems. Definitely, there was nothing in the record to support that. She said there's no communication problems. Hollihan, her treating provider for 13 years, noted that several of these pseudo seizures, some lasting 15 minutes or longer while in the office visit where she couldn't speak, couldn't communicate.

[00:50:18] Speaker 03:
Her analysis on the mental health issues was deficient. It didn't compare and contrast her problems. She just cherry picked items that she was doing good at. Now, we could have a discussion about substantial evidence if she had done that, but she didn't. And what is critical about why I think we should have a remand for payment of benefits is the January 2018 opinion from her primary care provider who the ALJ found persuasive, and she accepted it.

[00:50:49] Speaker 03:
And in there, the principal care provider opined that she could work 11 to 20 hours per week. That's not full-time work. That means she's disabled. So even with the ALJ's own findings, This is not a place, I believe, where we should give a mulligan and let the ALJ have it over again. We have 12 consistent opinions that she can't sustain full-time work. I'm sorry, I'm going to get emotional here.

[00:51:16] Speaker 03:
Because this lady, the ALJ said she's had no inpatient hospitalizations. But when she was 13, she was inpatient hospitalized in the psychiatric ward at Lord's Hospital.

[00:51:28] Speaker 00:
Okay, wait, I'm sorry.

[00:51:30] Speaker 00:
If I look at what the ALJ cited... was from the 2023 hearing, and I'm just going to read it. Any psychiatric admissions during the relevant period since 2017? ALJ, Mr. Tree, I didn't see any admits in the record. Did you come across any admits during the relevant period? Attorney, no, no, I didn't. Claimant, no. Attorney, Griselda, I think she's talking about like at Eastern or kind of like because your mental gets so bad, somebody takes you like to a mental health hospital. Have you had that happen? Claimant, no. Attorney, okay, yes.

[00:52:01] Speaker 00:
that that would be consistent, I think, with the records you're on, or ALJ, okay. So I don't, you know, I understand reasonable minds can differ. But to say that ALJ was baseless in that decision, I saw that was in your brief, I think is not fair to the record. Because if I read this testimony that happened before me with the witness under oath, I would take her at her word.

[00:52:29] Speaker 00:
So...

[00:52:32] Speaker 00:
I mean, reasonable minds can differ. There's lots of evidence going both ways. So the question is, what's the standard of review here? Does it have to convince this panel? Or if a reasonable fact finder could come out this way, is that substantial evidence? So anyway, I thought that's a fair finding. If that is the testimony at the hearing, I think that's a fair finding that there wasn't a mental health admission.

[00:53:03] Speaker 03:
Your Honor, my point is this, that the ALJ never mentioned her history, never mentioned that she tried to commit suicide at 13 and was hospitalized for two weeks, never mentioned she cuts on herself, never mentioned that she burns herself, never mentioned she became pregnant at age 14 by a 34-year-old man who she ran away from home with to California and lived with for four years in an abusive relationship before she escaped. She got in relationship with one other person. She had seven children. One of them died shortly after birth.

[00:53:35] Speaker 03:
There is a multitude of evidence that ALJ never mentioned, never talked about in the decision that support why she has pseudo seizures, why she has migraines, why she has borderline personality disorder, why she has anxiety. She cannot sustain full-time work. Yes, she has variable times when she isolates herself with her family, where she does better, where her migraines go significantly down.

[00:53:58] Speaker 03:
The ALJ did not mention that her mental health worker stated that your Topamax is causing, in her opinion, significant side effects, including paranoia and other mental health impairments. And there's discussion in the record where she talked with her doctors about her weighing, do I want to not have migraines or do I want to have more mental health impairments? Because she had that problem with the Topamax. And that's a real problem for this lady. Thank you, Your Honors. Is there any other questions you

[00:54:27] Speaker 00:
Let me see if there are any other questions.

[00:54:30] Speaker 00:
Okay. Thank you very much. I want to thank both Mr. Tree and Mr. Staples for your very, very helpful arguments today. We really appreciate that. This matter is submitted and we're adjourned. Thank you.