[00:00:00] Speaker 03: All right, thank you counsel the case just argued will be submitted Will be just keep going all right Thanks [00:00:27] Speaker 03: All right, so we'll proceed to hear argument in the next case on calendar for argument this morning, which is 25-103, Sherry Cloninger versus Frank Bisignano. [00:01:01] Speaker 03: And we will hear first from Mr. Sell. [00:01:19] Speaker 01: Good morning, Your Honor. [00:01:20] Speaker 01: Thank you. [00:01:21] Speaker 01: May it please the court. [00:01:22] Speaker 01: This case turns on two legal heirs. [00:01:25] Speaker 01: The first heir, the ALJ, rejected plaintiff's assertion of disabling back pain [00:01:29] Speaker 01: without clear and convincing reasoning and lacking substantial evidence because none of the evidence that the ALJ cited supports her claims about that evidence. [00:01:40] Speaker 01: The second error, the ALJ rejected plaintiff's assertion about disabling cognitive and mental health impairments without clear and convincing evidence because the ALJ cherry-picked the evidence. [00:01:51] Speaker 01: I'll start by addressing the back complaint. [00:01:55] Speaker 01: Here, in the ALJ's decision, the ALJ specifically rejects [00:01:59] Speaker 01: claimant's allegations about back pain, stating, musculoskeletal examinations of the claimant noted she denied back pain. [00:02:07] Speaker 01: And she had normal muscle tone, five out of five muscle strength in her extremities, and no joint pain or swelling. [00:02:12] Speaker 01: She then provided eight citations to the record. [00:02:15] Speaker 01: Significantly, none of the citations the ALJ provided actually contains a denial of back pain. [00:02:23] Speaker 01: And in fact, most, well, in fact, all of the citations the ALJ provided support [00:02:29] Speaker 01: plaintiff's allegations about back pain. [00:02:31] Speaker 01: For example, one of the citations the ALJ provided states, quote, her back pain is severe and disabled. [00:02:38] Speaker 01: Because none of these citations actually support the assertions the ALJ made about them, the ALJ's reasoning on this issue is not supported by substantial evidence. [00:02:49] Speaker 01: Additionally. [00:02:51] Speaker 03: I mean, yes, you refer to that comment, but why isn't this a case where the ALJ is [00:02:58] Speaker 03: sifting the evidence, and maybe we would have weighed it differently, but the standard of review prevents us from second-guessing it as if we were the ALJ. [00:03:09] Speaker 01: Yeah, this is not a case, especially with regard to the back issue, this is not a case in which the ALJ is reweighing the evidence. [00:03:17] Speaker 01: This is not a case where the ALJ is presented to rational interpretations of the record. [00:03:23] Speaker 01: In this case, the ALJ relied on evidence that she cited that does not, in fact, support the statements she makes about the evidence. [00:03:34] Speaker 01: That's simply a lack of substantial evidence on the back issue. [00:03:41] Speaker 01: Turn to address the cognitive and mental health issue. [00:03:44] Speaker 01: In this case, the ALJ rejected plaintiff's allegations of disabling [00:03:52] Speaker 01: neurocognitive disorder and mental health issues. [00:03:54] Speaker 01: It's significant in this case. [00:03:55] Speaker 01: This is a claimant who had treatment-resistant major depressive disorder so severe that she elected to undergo electroconvulsive therapy. [00:04:05] Speaker 01: This is a therapy in which electricity is passed through the brain, intentionally triggering seizures. [00:04:10] Speaker 01: For example, in her first application of this treatment, the EEG reports she experienced 32 seizures. [00:04:17] Speaker 01: It's a woman whose depression is so severe that she elected this treatment. [00:04:20] Speaker 01: In this case, [00:04:22] Speaker 01: ALJ rejects her testimony regarding these limitations stating that she does have a neurocognitive disorder. [00:04:29] Speaker 01: She does have major depressive disorder that's recurrent. [00:04:33] Speaker 01: But the ALJ states there are few objective findings indicating significant functional restrictions and then turns to the mental status examinations and says there's a bunch of mental status examinations with relatively benign findings. [00:04:46] Speaker 01: Therefore, I'm going to reject her testimony about her limitations. [00:04:50] Speaker 01: The problem with that is that there are at least as many, if not more, mental status examinations with significant impairment. [00:04:57] Speaker 03: You call that cherry picking, but now it goes back to my question, same question on the back pain, which is here you do have sort of, you know, some that don't and some that you argue do. [00:05:12] Speaker 03: And isn't this just weighing it? [00:05:14] Speaker 03: And that's what the ALJ does. [00:05:16] Speaker 03: And we just review for substantial evidence. [00:05:18] Speaker 03: And if there's two ways to read it, [00:05:20] Speaker 03: We can't do anything. [00:05:22] Speaker 01: The problem, so this court's case law says that to ignore is to reject. [00:05:27] Speaker 01: And here we have a lot of mental status examinations that include things like her memory is so bad she can't calculate, or her cognition is so bad she can't calculate her own birthday. [00:05:40] Speaker 01: She's suicidal, all of these other things. [00:05:43] Speaker 01: If the judge fails to address that and give you a reason, a clear and convincing reason why she's rejecting that, [00:05:49] Speaker 01: This court can't review her reasoning. [00:05:51] Speaker 01: And that's why we require some articulation. [00:05:55] Speaker 01: If there's no articulation, we don't know that she's rejecting this evidence for a clear and convincing reason. [00:06:02] Speaker 01: Simply asserting that other evidence exists is insufficient, because courts cannot review that sort of assertion. [00:06:09] Speaker 02: Would you focus on the memory loss issue? [00:06:14] Speaker 01: Certainly, Your Honor. [00:06:18] Speaker 01: Among the evidence that I cited in my brief that the ALJ ignored, we have, so for example, this is at the record at page 395. [00:06:29] Speaker 01: This is a mental health examination that states her memory is limited. [00:06:36] Speaker 01: She has difficulty recalling her age, initially stating she was 46 and then 44. [00:06:42] Speaker 01: She knows her birth date, but she is unable to calculate her age. [00:06:46] Speaker 01: We have numerous other descriptions. [00:06:51] Speaker 01: So we have a mental status examination. [00:06:53] Speaker 01: This is in the transcript at 352 stating that her speech is somewhat slow and her memory and recall are poor. [00:07:01] Speaker 01: She underwent a slums examination. [00:07:04] Speaker 01: This is a relatively simple mental health examination which a person is asked to say identify a camel versus an elephant. [00:07:13] Speaker 01: And that showed neurocognitive impairment. [00:07:16] Speaker 01: That's in the record at 340. [00:07:21] Speaker 02: Well, as I understand it, the ALJ determined that her memory varied from fair somewhat limited to intact. [00:07:28] Speaker 02: But the examinations that supported that all predate the onset date of the disability, which would favor your position, would it not? [00:07:37] Speaker 01: Yes. [00:07:40] Speaker 02: And what would be the consequence if we find that the ALJ did not provide clear and convincing reasons regarding memory loss? [00:07:48] Speaker 02: Would that result in reversal in your favor? [00:07:52] Speaker 01: Yes, that would result in a finding of legal errors sufficient to remand the case. [00:07:58] Speaker 01: And that is for a couple of reasons. [00:08:01] Speaker 01: First of all, we have vocational expert testimony in this case that shows that [00:08:06] Speaker 01: In this case, the specific finding is that a person who would be off task 20% or more of the work day would be incapable of performing competitive work. [00:08:13] Speaker 01: And a person with memory impaired to the extent that climate alleges would have that limitation. [00:08:18] Speaker 01: And that would then be a disabling finding. [00:08:24] Speaker 01: If there's no further questions, I'll reserve the rest of my time. [00:08:27] Speaker 03: All right. [00:08:27] Speaker 03: Thank you, counsel. [00:08:29] Speaker 03: All right. [00:08:29] Speaker 03: We'll hear again from Mr. Nelson. [00:08:40] Speaker 00: May it please the court, Council. [00:08:42] Speaker 00: Lars Nelson on behalf of the Commissioner of Social Security. [00:08:45] Speaker 00: This court should affirm the decision of the ALJ because it's supported by substantial evidence and free of prejudicial legal error. [00:08:53] Speaker 00: I think context is important here, Your Honors. [00:08:56] Speaker 00: This is a case where the claimant previously went to school with honors or graduated with honors. [00:09:03] Speaker 00: She went on a scholarship. [00:09:04] Speaker 00: She was performing at a very high level. [00:09:07] Speaker 00: And then she enrolled in the master's program in a STEM field of virology. [00:09:11] Speaker 00: And then once enrolled in that program is where she hit problems. [00:09:16] Speaker 00: She was struggling in doing something that's very difficult, pursuing a master's degree in virology. [00:09:22] Speaker 00: So she alleged problems thereafter with memory, concentration, and getting along with people. [00:09:28] Speaker 00: And the ALJ largely accommodated these. [00:09:30] Speaker 00: The lj restrict accommodated her memory problems by restricting her to only simple instructions her concentration by performing only simple tasks and her social limitations by restricting her to [00:09:46] Speaker 00: just occasional interaction with coworkers and other people and no teamwork. [00:09:53] Speaker 00: These are huge steps down from what someone who was previously said she could hear a piano piece and play it from memory without having had any other lessons. [00:10:04] Speaker 00: So, the ALJ provided profound accommodations here for the claimant, but the ALJ found that greater ones were unwarranted in light of the normal exam findings and the fact that she persisted in pursuing this graduate degree and ultimately working in a laboratory. [00:10:23] Speaker 00: The LJ also addressed her back problems. [00:10:26] Speaker 00: And I would like to go to the ALJ's decision to just clear a point up that was made by my opposing counsel. [00:10:36] Speaker 00: On 24, the ALJ does cite, as he noted, eight records. [00:10:41] Speaker 00: And one of the records he cites is a few from 5F. [00:10:44] Speaker 00: And this was a screen. [00:10:46] Speaker 00: From what? [00:10:47] Speaker 00: 5F. [00:10:48] Speaker ?: OK. [00:10:48] Speaker 00: This was a Scrivener's error, Your Honor. [00:10:51] Speaker 00: If you look at 5F and the corresponding pages, they do not support the ALJ's finding. [00:10:57] Speaker 00: However, at 15F, if we look at every single one of those pages cited, the claimant denied having back pain. [00:11:06] Speaker 00: And that's at 1537, 1542, 1548, and 1560. [00:11:13] Speaker 00: And that was after her spinal surgery. [00:11:16] Speaker 00: This is not an issue in this case where there could be a closed period of disability, because she had spinal surgery in July of 2018, which was very shortly after the period at issue began. [00:11:28] Speaker 00: So we don't have a 12-month period where she could be found disabled before her surgery. [00:11:34] Speaker 00: And notably in January, she had minimal conservative treatment. [00:11:39] Speaker 00: So this case is very much akin to SMART, where the claimant [00:11:44] Speaker 00: up to her surgery had conservative treatment she ultimately didn't need surgery and there was a period of six weeks where she had significant restrictions but there after she denied back pain and [00:12:01] Speaker 00: She ultimately said that at 461 in the record that her back pain was totally gone. [00:12:08] Speaker 00: In light of this, the ALJ's interpretation of this evidence, including the profound improvement, is consistent with the unchallenged opinion of Dr. Moner here. [00:12:19] Speaker 00: At 85 and 86, the ALJ noted, Dr. Moner noted this improvement. [00:12:24] Speaker 00: The ALJ found this opinion persuasive, and that finding is not challenged on appeal. [00:12:31] Speaker 00: Fundamentally, the arguments here are just asking this court to reweigh the evidence. [00:12:38] Speaker 00: But the ALJ cited substantial evidence to support the findings. [00:12:42] Speaker 03: Ones to the cherry picking contention on the mental health and the issue of timing differential. [00:12:53] Speaker 00: In terms of the [00:12:55] Speaker 00: The LJ acknowledged, specifically acknowledged that in terms of her speech and her memory, there were mixed findings. [00:13:05] Speaker 00: But the LJ cited thorough testing, the Welscher intelligence testing at 420, which showed that her memory was only in the low average range. [00:13:17] Speaker 00: So that's still average, and by definition, that's where most people fall. [00:13:24] Speaker 00: Again, context is important. [00:13:26] Speaker 00: This was a woman who was functioning at an extremely high level, and the ALJ then restricted her to remembering only simple instructions, a massive step down from the complex STEM field that she was in before. [00:13:42] Speaker 00: And ultimately, whatever her memory problems were, as Dr. Carter noted, shortly after the period at issue, they did not ultimately stop her from pursuing her master's degree and working in a lab as part of that program. [00:13:58] Speaker 00: This is a very limited record here, given the narrow period of time. [00:14:02] Speaker 00: The ALJ only has so many records to deal with and on this limited record the ALJ was able to point to here specific evidence that supported the ALJ's profound limitations. [00:14:18] Speaker 00: And because the ALJ's decision is ultimately reasonable and supported by substantial evidence, the commission would ask this court to affirm. [00:14:25] Speaker 00: And unless this court has any further questions. [00:14:28] Speaker 03: Thank you. [00:14:28] Speaker 03: Thank you, counsel. [00:14:29] Speaker 03: We'll hear rebuttal. [00:14:37] Speaker 01: Thank you, Your Honors. [00:14:38] Speaker 01: I guess I'll begin where counsel left off, and the question of the claimant's capacity to perform school. [00:14:47] Speaker 01: So the record here shows that she was in school for approximately nine years. [00:14:52] Speaker 01: The degree she was pursuing was a two-year degree. [00:14:56] Speaker 01: And in the course of nine years, she was unable to complete a two-year degree. [00:15:00] Speaker 01: The disabling limitation that the vocational expert testified was that a person would be off task 20% of the time would be incapable of performing competitive work. [00:15:14] Speaker 01: Failing to complete a two-year degree in nine years is evidence that this woman would be off task at least 20% of the time. [00:15:21] Speaker 01: She was also performing this schooling with disability accommodations. [00:15:27] Speaker 01: There is some mention as counsel noted that she was performing some work in the lab, but again, with disability accommodations. [00:15:36] Speaker 01: And the ALJ specifically found that this claimant was not performing substantial gainful activity. [00:15:44] Speaker 01: With regards to the suggestion that we have a Scrivener's error here, I just quickly reviewed the records. [00:15:53] Speaker 01: I believe the records that counsel is referring to are all [00:15:57] Speaker 01: urology records that occurred after the date last insured in this case. [00:16:05] Speaker 01: So were this court to speculate that the ALJ had made a typo and that they had landed on these urology notes, they would be irrelevant because they're after the date last insured. [00:16:16] Speaker 01: And if you look at the hearing testimony in this case, the ALJ is explicit that she will not consider evidence after the date last insured. [00:16:23] Speaker 03: But what's curious is if you look at the ALJ's ruling, [00:16:28] Speaker 03: that same string site of pages, 39, 44, 50, 62, sometimes with a few extra pages added, occurs several times in the decision. [00:16:39] Speaker 03: All the others have 15 rather than five. [00:16:42] Speaker 03: So that does sort of support the inference that it is, in fact, a Scrivener's error. [00:16:48] Speaker 01: Well, I'll give you that. [00:16:49] Speaker 01: But even if you accepted that it was a Scrivener's error. [00:16:52] Speaker 03: It's another error. [00:16:53] Speaker 01: It's another error. [00:16:54] Speaker 01: She specifically states that she will not consider [00:16:57] Speaker 01: evidence post date last insured. [00:17:01] Speaker 01: She says it several times in the hearing testimony. [00:17:03] Speaker 01: In fact, she interrupts the representative several times and asks her not to ask questions about evidence after the date last insured. [00:17:10] Speaker 01: If an ALJ specifically says she's not going to accept testimony on an issue, it would be legal error to then deny a claimant based on that evidence. [00:17:20] Speaker 01: But even a setting aside the back issue turning to the issue [00:17:26] Speaker 01: plaintiff's cognitive impairment, the ALJ simply needed to address this significant evidence in order for appellate courts to review it. [00:17:34] Speaker 01: And she did not do that. [00:17:35] Speaker 01: So we would ask you to find legal error and remand the case.