[00:00:00] Speaker 04:
room deputy today, Ms. Dodds.

[00:00:03] Speaker 04:
We'll take up the cases in the order they appear on the calendar. We have several submitted cases.

[00:00:09] Speaker 04:
That is Magalyuk v. Blanche, Tobon Garcia v. Blanche, and Mundell v. Doxo. Okay.

[00:00:21] Speaker 04:
And then otherwise, we now have Fain v. Bezignano. And I believe, okay, counsel, you're appearing remotely. Can you hear us all right?

[00:00:30] Speaker 01:
Yes, I can.

[00:00:31] Speaker 04:
Great.

[00:00:32] Speaker 04:
Then whenever you're ready.

[00:00:34] Speaker 01:
Thank you.

[00:00:37] Speaker 01:
May it please the court. My name is Eitan Janic, and I'm representing Andrea Fain in this appeal.

[00:00:44] Speaker 01:
Fain has been unable to perform full-time work since December, 2018, due to the combined functional effects of many impairments, including fibromyalgia, obesity, asthma, depression, anxiety, ADHD, insomnia, and post-traumatic stress disorder.

[00:01:01] Speaker 01:
The ALJ here made several significant errors, each of which by itself requires reversal. These include his improper rejection of the medical opinions of Fain's treating physician, Dr. Thomas, and an examining psychologist, Dr. Adkisson, his improper rejection of Fain's testimony and his failure to evaluate the lay evidence.

[00:01:23] Speaker 01:
Dr. Thomas has been treating Fain since prior to May, 2015. She first diagnosed Fain with fibromyalgia in April, 2017. She's also been treating Fain for anxiety and depression.

[00:01:37] Speaker 01:
she noted that Thane has not tolerated any of the typical medications for fibromyalgia or depression.

[00:01:44] Speaker 01:
In July 2022, Dr. Thomas completed a medical source statement in which she described Thane as having many significant limitations. Now, some of those limitations she described, she noted on her assessment that her opinion was based on Thane's best estimate of her abilities But that was on one page. On the other two pages, she did not write that. And she even made notations of what the basis of her opinion was and how she was basing it on her knowledge of Fain's history.

[00:02:19] Speaker 01:
The ALJ erred by improperly rejecting Dr. Thomas's opinion based on alleged inconsistencies with normal findings that are fully consistent with Fain's impairments, including fibromyalgia, anxiety, and PTSD and depression. The ALJ's analysis here is contrary to Social Security ruling 12-2P, and it is also contrary to this court's decision in Revelle's and in its decision just two weeks ago in Ortiz.

[00:02:48] Speaker 01:
The ALJ also failed to fully account for the limitations described by an examining psychologist, Dr. Adgeson, including his opinion that her anxiety and excessive rumination increased the tendency to make mistakes and interfere with her ability to to obtain or sustain employment, as well as his opinion that she's moderately limited in her ability to reason, her understanding and memory, sustained concentration and persistence, and adaptation.

[00:03:16] Speaker 01:
The opinions of Dr. Thomas and Dr. Atkinson are supported by the findings of famed psychiatrist Dr. Sampson and her rheumatologist Dr. Islund.

[00:03:27] Speaker 01:
The ALJ also improperly rejected Fain's testimony about her symptoms and limitations. And this is very similar to the issue with Dr. Thomas's opinion. The main problem with the ALJ's analysis of Fain's testimony is that he failed to comply with Social Security ruling 12-2P, Revelle's, and Ortiz by improperly rejecting Fain's testimony based on alleged inconsistencies with normal findings that are fully consistent with their impairments. The ALJ did not state any convincing reason for rejecting Fain's testimony about her pain-related symptoms and limitations or her PTSD and depression-related symptoms and limitations.

[00:04:07] Speaker 01:
For example, Fain testified that she spends almost all of the day with her feet up on the couch in a kind of reclined position because that is how she can best deal with her pain most of the time. And she testified that it is difficult for her to go out in public by herself, and she does this only once a week. The ALJ did not state any specific and convincing reason for rejecting these significant limitations.

[00:04:31] Speaker 01:
The ALJ also based this analysis in part on a factual error. The ALJ asserted 12 times that Fane had been able to teach an online yoga class when in fact she merely attended such a class. Her ability to attend an online yoga class is not inconsistent with her testimony about her limitations. She wasn't- And contrary to- I'm sorry, go ahead.

[00:04:53] Speaker 03:
She was teaching a different class, is that right?

[00:04:57] Speaker 01:
That is correct.

[00:04:59] Speaker 03:
But not a physical one?

[00:05:02] Speaker 01:
No. And I was just going to mention that, which is that the commissioner argued, made a post hoc argument that because she had been able to teach a historical recreation class in early 2020, but the ALJ didn't even cite that. because he was confused. I don't think this was intentional, but he got this wrong, and he got it wrong 12 times.

[00:05:31] Speaker 01:
The ALJ also erred by failing to evaluate, entirely failing to evaluate, the lay observations from Fain's partner, Holland Cooley. Cooley's observations provide further support for Fain's testimony about her limitations. And the ALJ's failure to evaluate his observations is contrary to social security rulings 12.2 and 16.3 .

[00:05:54] Speaker 01:
As a result of all of these errors, the ALJ's residual functional capacity assessment and step four and step five findings are not supported by substantial evidence and are based on legal error. We therefore respectfully ask the court to exercise its discretion to remand Thayne's claim for the award of benefits or any alternative to reverse the ALJ's decision and remand Bain's claim for a new hearing.

[00:06:20] Speaker 01:
If you don't have any questions, I ask that any additional time I have be reserved for rebuttal. Thank you.

[00:06:53] Speaker 00:
Good morning. Asim Modi on behalf of the Commissioner of Social Security.

[00:06:57] Speaker 00:
It is clear from the record that the claimant experienced significant symptoms and limitations stemming from her fibromyalgia and other impairments. And the ALJ accordingly restricted the claimant to a limited range of simple, light work with limited social interaction, limited changes in the work setting, and limited decision making. But when it comes to the more dramatic claims from the claimant, her partner at a medical source claims that she was unable to sit or stand for more than a few minutes at a time, allegations that she was markedly impaired in her memory and focus and social interaction and claims that she spent much of the day sitting in a reclined position with her legs elevated.

[00:07:33] Speaker 00:
Well, the ALJ reasonably found that the record did not go so far and substantial evidence supports this finding.

[00:07:39] Speaker 03:
Did the ALJ give any reason for discounting her partner's testimony?

[00:07:43] Speaker 00:
Your honor, the ALJ considered the partner's testimony, but did not explain why he found that testimony unpersuasive because, um, You know, I think as we know in our brief, this is the case that was decided under the revised agency medical evidence regulations.

[00:07:58] Speaker 02:
And, you know, it's the agency's position that under these revised regulations, an ALJ is no longer required to address how they – If we disagree with that, do you argue that any error is harmless because the partner said more – than the claimant said about some specific limitations. So how could it... Assuming that we disagree with you on the relevance of our former holding, that there has to be a germane reason given, do you argue that any error is harmless, and if so, why?

[00:08:43] Speaker 00:
Your Honor, I think...

[00:08:46] Speaker 00:
when we're looking at kind of what standard applies to assess the ALJ's findings, we would just return to the substantial evidence standard.

[00:08:52] Speaker 02:
And I think this... No, you're missing... I may not have explained my question very well. I'd like you to assume for the sake of this question that the ALJ is required, still required, to give germane reasons for disbelieving or discounting a lay witness's testimony. And here the lay witness gave...

[00:09:15] Speaker 02:
sort of more detail about the claimant's condition than the claimant did and then some of the other evidence did. So if that rule still applies, why wouldn't we have to at least remand?

[00:09:33] Speaker 00:
Yes, sir. I'm sorry for the misunderstanding of the question. I think if applying the former germane reason standard, I think harmless error analysis would still apply here because even if there were some variations in what the claimant's partner said in relation to what the claimant herself said, I think by and large, the claimant's partner echoed what she said because the main thrust of his assertions were very similar to what the claimant herself said. I mean, he was making, he was claiming that, you know, like the claimant did, that she was largely unable to sustain any physical or mental activities in the course of the day.

[00:10:06] Speaker 03:
But he was at least corroborating what she said and therefore it had relevance for that purpose. as well as the fact that he had some additional information.

[00:10:17] Speaker 00:
Well, yes, Your Honor. I agree that his statements were consistent with what the claimant said, but under the harmless error analysis, if the third-party statements are similar to what the claimant herself alleged, then the AOC's reasons for rejecting the claimant's testimony extend equally to similar testimony from third-party witnesses.

[00:10:36] Speaker 02:
But the reasons he gave for discounting the testimony the medical evidence in her testimony were that she had normal motor strength, range of motion, and gait, which really is not consistent with what the lay testimony was. So, I mean, it seems like the reasons would not be the same.

[00:11:05] Speaker 02:
In addition to being somewhat...

[00:11:08] Speaker 02:
inconsistent with the court's decision in Revels.

[00:11:12] Speaker 00:
Well, let me address the second point first, and then I might get to your first point regarding the reasons given, because I want to emphasize that this case is distinguishable from Revels, because in Revels, you're right that this court had flagged that there was a problem with how the LJA in Revels had evaluated the claimant's fibromyalgia. And in that case, this court founded the ALJ and it erred in over-indexing things like scans, like MRIs and x-rays, which are not relevant to an evaluation of fibromyalgia, as well as findings about normal gait and objective, normal gait, strength, and range of motion.

[00:11:48] Speaker 00:
And that in rebels, the court had flagged that, you know, ALJ has to consider tender point findings because that's especially relevant to the consideration of fibromyalgia, as well as considering the sort of varied, unique nature of fibromyalgia, things, and the fact that the symptoms wax and wane. It involved fatigue and emotional component. There's a number of factors that are involved there. And so that was what the court directed in Rebels. And to get to this case, that's exactly what the ALJ did here. The ALJ did not simply reject the claimant's allegations of fibromyalgia simply by citing normal gait and strength and range of motion.

[00:12:21] Speaker 00:
The ALJ expressly noted the lack of tender point findings, which is a contrast to Rebels because there were numerous tender point findings.

[00:12:28] Speaker 03:
I thought there were tender point findings. His problem seemed to be that they weren't.

[00:12:35] Speaker 03:
recent enough for him, but they certainly existed.

[00:12:38] Speaker 00:
Your Honor, I don't think the record doesn't contain them because, you know, going to Dr. Thomas's opinion, I think one of the reasons why the ALJ reasonably found that Dr. Thomas's opinion lacked any objective support was because Dr. Thomas herself admitted that she had not done any formal testing for fibromyalgia in many years before she had issued her opinion. And so,

[00:12:58] Speaker 03:
Well, that's what I meant, in many years. Not that there weren't any. There just weren't any for a while.

[00:13:02] Speaker 00:
Well, they're not in the record, Your Honor. And so I think that's what we're looking at. And there's nothing in the record. Maybe she did some testing prior to when the claimant allegedly became disabled.

[00:13:12] Speaker 04:
You're just saying the ALJ could completely disregard ER 1476, where the doctor lists multiple tender points at item 10?

[00:13:26] Speaker 00:
Yes, sir. I know that the doctor lists tender points on that page, but looking at the, I'm not sure exactly where those findings came from because, you know, again, on either AR-1278, Dr. Thomas knows that she hadn't done any formal fibromyalgia testing. And so if you couple that with Dr. Thomas's statement on AR, I think 1469, where Dr. Thomas says that And I think I just want to correct something my colleague has said. She didn't say that some of her conclusions were based on the patient's self-reporting.

[00:13:58] Speaker 00:
She said all were based on the claimant's self-reporting. And so I think if you couple that statement about all the statements, all of the findings, conclusions being based on the claimant's self-reporting, coupled with Dr. Thomas's old admission that she had not done any testing and that she had actually, I think on AR-1280, Dr. Thomas notes that that she issued this opinion working with the claimant on the phone. That's how she completed this form.

[00:14:25] Speaker 02:
Yeah, so before you run out of time, I want to ask you also about this repeated mistake of saying, well, why should I believe the claimant because she was able to teach yoga? She was not teaching yoga. That is simply a factual error. And it seems to me to be a crucial one because if you take a class, you can – sit it out if you're not feeling up to it. You don't have to come at all if you're not feeling up to it.

[00:14:55] Speaker 02:
Not so if you're teaching it. So why isn't that alone a harmful error?

[00:15:01] Speaker 00:
Well, Your Honor, I think, as the District Court pointed out, I think the overall thrust of the ALJ's analysis is still consistent, still supported by substantial evidence, because she She wasn't teaching the yoga class, but she was doing the yoga class.

[00:15:19] Speaker 02:
But if you're doing the yoga class and something hurts or it's too hard, you can just sit there. It's online. Who's going to even know, let alone be critical of you? It's just a completely different experience. I just don't understand how that can be harmless.

[00:15:39] Speaker 00:
Well, I think, Your Honor, I think I just want to make a couple of points about the sort of teaching that she was teaching a class. And I think as Judge Burris, I noticed she was teaching a class on historical recreation or I'm sorry, recreation. And so I think the LG reason, I think that is.

[00:15:52] Speaker 02:
Which is a non-physically demanding thing. You can sit quite still and teach that. Pretty different.

[00:16:00] Speaker 00:
Yes. Yes. I completely acknowledge that, Your Honor. And I think I get to my other point, which is that. The physical activities associated with yoga, and we don't know if she was sitting out classes or not, but that wasn't the only physical activity that the ALJ cited to reject her extreme physical allegations.

[00:16:14] Speaker 03:
But it is marked that he kept saying that over and over and over again, that she was teaching this yoga class which he wasn't teaching. So he obviously thought it was important because he said it, I don't know, 10 times or so.

[00:16:26] Speaker 00:
Well, Your Honor, that is correct that the ALJ did note that repeatedly, but other physical activities that the ALJ noted as well was the claimant's ability to travel, that she was camping, she had traveled abroad, she had traveled to Canada as part of her historical reenactment hobby, that she had camped, she had socialized with family and friends, she had taken weekend trips. So that wasn't just the only physical activity the ALJ relied upon to reject her allocations.

[00:16:51] Speaker 03:
Can we go back briefly because you're about to run out of time to the – lay testimony. What I don't understand about your position, which is the agency's position in general, that you no longer need to give cogent reasons. I mean, isn't that just a basic requirement of an administrative agency so we can review it? It doesn't have to be written down. I mean, in many immigration cases, there's no regulation that says whether they have to articulate their reasons, but we've always insisted they have to articulate their reasons because otherwise, What are we supposed to do?

[00:17:27] Speaker 03:
So I don't understand how you can have a rule. If you had a rule that said you don't have to give any reasons, it would probably be an invalid rule. I don't understand the argument.

[00:17:40] Speaker 00:
Well, Your Honor, I think what the current rule holds is that it's not a – Well, let's assume for now it does hold that even though it probably doesn't.

[00:17:50] Speaker 03:
But assume it does.

[00:17:52] Speaker 03:
How can we have a rule that an administrative agency doesn't have to explain itself? If it doesn't have to explain itself at that, you could have another rule that said it doesn't have to explain itself about anything, and that can't be.

[00:18:03] Speaker 00:
Well, Your Honor, I think what the – under the current rule, as stated, I think the inquiry then is reviewing the ALJ's decision for substantial evidence. And I think in publishing – when the agency published its rule, I think the agency explained that there are circumstances where it would be sort of incumbent on the ALJ to address that evidence, like in kids' cases where – where the family members are the ones who really testify on behalf of the claimant. And those are cases where if an ALJ had made a discussion of the third-party witness testimony, that would quite likely be error because that was evidence that was especially crucial to that kind of case.

[00:18:37] Speaker 00:
But again, it's supposed to be a case-by-case inquiry. And in some cases, that evidence would not undermine the substantial evidence that supports the ALJ's finding. And I think this would be one such case because the third-party testimony is simply essentially just echoing what the claimant herself said. There are cases where that testimony would be especially useful, but that's dealing in hypotheticals.

[00:18:59] Speaker 04:
It comes back to the harmless error argument, essentially.

[00:19:02] Speaker 00:
Yes, Your Honor. Okay.

[00:19:04] Speaker 04:
Anything else? Okay. Thank you, Counsel.

[00:19:06] Speaker 00:
Thank you, Your Honor. We ask that this Court affirm. Thank you.

[00:19:08] Speaker 01:
Thank you.

[00:19:19] Speaker 01:
I guess I want to start by pointing to the fact that this is a fibromyalgia case. And the ALJ found, I mean, this is one of the findings in the decision, that she has fibromyalgia. Tender points are only critical for the purpose of, well, they're fairly critical for the purpose of establishing a diagnosis of fibromyalgia. The diagnosis was apparently established well enough that the ALJ found that she had it.

[00:19:48] Speaker 01:
Who else thought she had it when she went to Dr. Islam?

[00:19:53] Speaker 01:
He found that this is at 1248. He found that this is an individual with fibromyalgia. So for the government to be arguing that the lack of tender points, the finding of an ALJ, well, I don't see where the tender points are described here.

[00:20:11] Speaker 01:
that doesn't undermine her testimony about her limitations. It could potentially support a finding that she didn't have fibromyalgia, but the ALJ did not make such a finding. So this is all a big post hoc rationale regarding, you know, what is the impact of this? Because that's the finding in this case. The ALJ said she's got fibromyalgia. Now let's move on to what are her limitations? Now, because it's a fibromyalgia case, of the main ways to determine when somebody has any kind of pain, but it's certainly true in fibromyalgia and under Social Security ruling 12.2p, you have to look at what the person says about their limitations.

[00:20:55] Speaker 01:
They know what they're feeling. Nobody else knows what they're feeling. And so you have to carefully evaluate. And that's what the ruling says. The ALJ did not comply with that important aspect of the ruling. They also have to consider lay evidence on that issue because, once again, it's a pain issue. Any time there's pain, lay observations can corroborate or describe things that are some of the best evidence in the case when it's a pain case to support the level of limitation a person has.

[00:21:33] Speaker 01:
With regard to the issue of whether Dr. Thomas's opinion was entirely based on Fain's description, she wrote that on the first page of her three-page assessment, but she did not write that on the next two. And she had a bracket kind of wrapping around a bunch of those limitations. But on things like the absenteeism, she pointed out that when she was last working, Fain was missing a day a week.

[00:22:04] Speaker 01:
So it was based on her historical knowledge of how Fain was actually, her actual limitations that she had observed over time.

[00:22:17] Speaker 01:
And there are, fibromyalgia has so many things, including fatigue and mental fog. There's so many different aspects of it that you can't measure them and the alj did here try to uh he pointed to a bunch of normal findings but none of those findings were inconsistent with her testimony about her limitations with regard to the activities she did go on a trip to um to sweden in april of 2019 that's months before she even filed her first application for disability, she prepaid for a trip and she went there.

[00:22:53] Speaker 01:
And after she came back, first treatment note says she had waves of anxiety, which can last for days in a row. That's at 498.

[00:23:05] Speaker 01:
And camping, yes, in the course of this entire period here, she went camping twice.

[00:23:12] Speaker 01:
once for a historical recreation in early 2020, and then one other time where she went in her trailer. And then after that, she was once again reporting all sorts of symptoms. So the evidence does not, there isn't, when you look at the whole evidence, all of the evidence here, substantial evidence in the record as a whole does not support the ALJ's analysis. And his numerous errors here do support a obviously for reversal. And I do ask the court to consider exercising discretion and awarding benefits because all of these areas put together do support a finding of disability.

[00:23:51] Speaker 01:
Thank you.

[00:24:08] Speaker 04:
Next, we have Shady Noel Orchards.