[00:00:00] Speaker 02:
If your attention, you will be heard.

[00:00:03] Speaker 02:
God save these United States and this honorable court.

[00:00:07] Speaker 02:
Please be seated.

[00:00:12] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
We have a few cases that are being submitted on the briefs this morning.

[00:00:20] Speaker 03:
Those are 21-70398 Luis Osvaldo Jimenez Ochoa versus Pamela Bondi.

[00:00:30] Speaker 03:
Number 25-10, Rusty Aaron Eli versus Frank Bisignano.

[00:00:36] Speaker 03:
25-243, Razi Pen Lee versus Frank Bisignano.

[00:00:46] Speaker 03:
And 25-302, Cheryl A. Allen versus Frank Bisignano.

[00:00:52] Speaker 03:
Bisignano, in accordance with the respective orders previously entered on the dockets of those four cases.

[00:00:58] Speaker 03:
Those four cases are hereby submitted on the briefs.

[00:01:01] Speaker 03:
We will then proceed to hear argument in the second case on calendar for argument this morning, which is 24-7662, Darren Willert versus Frank Bisignano, and we will hear first from Mr. Dellert.

[00:01:28] Speaker 00:
Good morning, your honors.

[00:01:29] Speaker 00:
Christopher Dellert representing Darren Willard, the appellant in this case, and I would like to reserve a minute for rebuttal if possible.

[00:01:36] Speaker 00:
So Mr. Willard suffers from several severe impairments, including a liver disease.

[00:01:41] Speaker 00:
One of the symptoms of the liver disease is that he retains a lot of fluid.

[00:01:44] Speaker 00:
The result of this is that if he stands, walks, or sits upright for too long, he begins to get swelling in his legs and his feet.

[00:01:52] Speaker 00:
To alleviate that, he has to raise his feet to

[00:01:56] Speaker 00:
to or above his heart level.

[00:01:59] Speaker 00:
He's taken numerous steps to address this, including lifestyle changes of no longer drinking.

[00:02:04] Speaker 00:
He's adjusted his salt intake.

[00:02:05] Speaker 03:
So what's the basis on which he was later found to be disabled in 2021?

[00:02:12] Speaker 03:
Because as I understand it, what's at issue here is the two-year period from 2019 to 2021.

[00:02:16] Speaker 03:
Yes.

[00:02:17] Speaker 03:
So he has his benefits from 2021 forward.

[00:02:20] Speaker 03:
and it's just a question of whether he gets the two years prior.

[00:02:23] Speaker 03:
Yes, Your Honor.

[00:02:24] Speaker 03:
And the basis on which he was found disabled in 2021?

[00:02:27] Speaker 00:
He gridded out through the medical vocational guidelines as of age 50.

[00:02:31] Speaker 00:
So that's what the, because he was limited to sedentary work with this residual functional capacity, with the additional limitations, the sedentary work gridded him out so he was automatically disabled.

[00:02:42] Speaker 00:
Okay.

[00:02:45] Speaker 00:
So,

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As I was saying, he has taken numerous lifestyle changes to address some of the symptoms.

[00:02:54] Speaker 00:
The one most relevant here is his use of diuretics.

[00:02:59] Speaker 00:
With the diuretics, that causes him to need to use the restroom every 15 to 20 minutes for several hours after taking the medications.

[00:03:07] Speaker 00:
Now, at the hearings, the vocational consultants have testified that the need for frequent restroom breaks outside of normal

[00:03:14] Speaker 00:
the normal breaks would be preclusive of work, as would elevating the fee.

[00:03:20] Speaker 03:
One way to read this record is that the ALJ actually didn't agree that the edema was ultimately something that, I mean, it's labeled as a severe condition, but that ultimately wasn't of such a magnitude as to warrant

[00:03:40] Speaker 03:
anything.

[00:03:41] Speaker 03:
And then he just gratuitously added, well, I'll give him the eight inches because that's the maximum I can give him without him tipping over into disability.

[00:03:54] Speaker 03:
It's kind of a very odd sort of ruling, but he goes through Dr. Park and sort of rejects it and then notes that there are other

[00:04:03] Speaker 03:
you know, places in the record where the edema doesn't show up.

[00:04:06] Speaker 03:
So it seems like he doesn't really give it any weight, but then he tosses this in.

[00:04:11] Speaker 03:
So you could view it as error, and the government argues, you could view it as error, but it's harmless error, because he gratuitously added a limitation that he actually thought wasn't warranted.

[00:04:22] Speaker 00:
But on three separate occasions in the decision, he said he was adding this limitation to address the swelling in his legs.

[00:04:28] Speaker 00:
So if he meant to do something different, he did not articulate it in a manner that

[00:04:32] Speaker 00:
can be affirmed.

[00:04:34] Speaker 00:
He said he needs to elevate his legs because of swelling, and then he shows eight inches solely based on the vocational testimony.

[00:04:41] Speaker 00:
There's no medical, it just flies in the face of medical science to say only eight inches, where putting a foot on an inch step would actually increase the swelling because it makes it harder for the blood to get.

[00:04:54] Speaker 03:
If he really, in order to be viewed as harmless error in the government's theory, he

[00:05:01] Speaker 03:
the ALJ would have had to say that nothing was warranted, but he actually found that something was warranted, but then arbitrarily picked eight inches.

[00:05:16] Speaker 00:
Yes, Your Honor.

[00:05:17] Speaker 00:
And unfortunately, it wasn't arbitrary.

[00:05:19] Speaker 00:
It was something that he and the vocational consultant worked down to to find where can we fit that.

[00:05:25] Speaker 03:
If he'd wanted to say... Is there any other suggestion in the record for the line at eight

[00:05:30] Speaker 03:
inches other than that the vocational expert said that that was the tipping point?

[00:05:34] Speaker 00:
Absolutely not.

[00:05:36] Speaker 01:
Is there evidence the other way?

[00:05:37] Speaker 01:
I know other than what Mr. Willard testified did any medical professionals say his feet have to be has to be elevated near his heart?

[00:05:44] Speaker 00:
Unfortunately the the steps to reduce edema were never discussed in the medical record and it's just kind of common knowledge thing.

[00:05:51] Speaker 00:
The only thing that could have been done differently to address that and the the

[00:05:56] Speaker 00:
restroom use was to call in a medical consultant who could say, yes, a person with edema needs to lift the legs this high, this low does not work because of X. Similarly, a person taking diuretics is going to use the restroom all the time while still in their system.

[00:06:13] Speaker 00:
And both of those are determinative limitations, either or.

[00:06:19] Speaker 00:
Together, they make it just impossible to work.

[00:06:21] Speaker 00:
So calling a medical consultant could have cleared that, but otherwise,

[00:06:26] Speaker 00:
You have to take Mr. Willard's word that he lifts his legs up that high because it needs to get the fluid back where it belongs.

[00:06:36] Speaker 01:
It seems like what happened is the ALJ says there's very little evidence after February 2019 of severe edema.

[00:06:46] Speaker 01:
Earlier, yes, but after February 2019, less.

[00:06:50] Speaker 01:
And there's no testimony, I don't know, again, I'm not a medical expert, but if the LJ isn't either, there's no testimony about how high it should be.

[00:06:58] Speaker 01:
So he thinks maybe it's minor and settles at eight inches without that testimony saying this is how high it needs to be.

[00:07:06] Speaker 00:
He testified on several occasions how high he needed, but nobody else had.

[00:07:11] Speaker 00:
I understand, Mr. Willett, but there's no medical, independent medical testimony.

[00:07:14] Speaker 00:
No, unfortunately, nobody came right out and said that this is what he needs to do.

[00:07:21] Speaker 02:
Would you tie your argument into the standard of review?

[00:07:23] Speaker 02:
Because we might think what you're saying is entirely reasonable, but our hands may be tied by the standard of review.

[00:07:30] Speaker 00:
Well, he needs to give specific clear and convincing reasons for rejecting, supported by substantial evidence for rejecting Mr. Willard's allegations in these.

[00:07:39] Speaker 00:
He needs to link the evidence that he's talking about to the allegations that he's rejecting.

[00:07:44] Speaker 00:
That's under Smith v. O'Malley, I believe.

[00:07:50] Speaker 00:
There has to be a link between the evidence and the finding, and there's nothing there.

[00:07:56] Speaker 00:
In particular, there's nothing there when it comes to the use of the restroom either.

[00:08:01] Speaker 00:
So the ALJ summarized the evidence, but he never specifically linked it to why he was rejecting this particular allegation.

[00:08:10] Speaker 00:
in favor of just lifting the feet eight inches.

[00:08:12] Speaker 03:
Is there anything in any of the medical reports that substantiated that claimed frequency or that referred to it in any way?

[00:08:22] Speaker 00:
Unfortunately, no, but part of the problem is the edema is something that comes when he's in a position for a sustained amount of time and he's no longer working and he's spending most of his time in his recliner or in his bed or on his couch, so he's not

[00:08:34] Speaker 00:
having the same frequency of symptoms just because he's not putting himself into that kind of a position any longer.

[00:08:40] Speaker 00:
If there are no other questions.

[00:08:47] Speaker 03:
All right, you can save the rest for rebuttal.

[00:08:49] Speaker 00:
Thank you, sirs.

[00:08:50] Speaker 03:
Okay, we hear from the government.

[00:08:58] Speaker 03:
Mr. Nelson.

[00:09:00] Speaker 04:
May it please the court, counsel Lars Nelson on behalf of the Commissioner of Social Security.

[00:09:05] Speaker 04:
This court should affirm the decision of the ALJ because it is supported by substantial evidence and free of prejudicial legal error.

[00:09:12] Speaker 04:
I would like to go begin with that leg lifting limitation.

[00:09:16] Speaker 03:
It does seem to be a mismatch here because the ALJ seems to sort of discount the edema entirely.

[00:09:25] Speaker 03:
but then out of nowhere puts in the eight inch limitation and the inference is almost inescapable from the record that he just plucked it because the VE said it was the tipping point.

[00:09:37] Speaker 03:
This seems quite arbitrary.

[00:09:42] Speaker 04:
Well, the ALJ doesn't prejudice Mr. Wheeler by out of an abundance of caution, including the limitation that he must be allowed, not that he must.

[00:09:50] Speaker 03:
The problem is, and what's your response to counsel's argument, is that that's not how the ALJ put it.

[00:09:57] Speaker 03:
The ALJ, in fact, said that there was an issue that needed to be dealt with, but that he was capping it at

[00:10:05] Speaker 03:
So he tried to have it both ways so it, once the ALJ treats it as there is something to be dealt with, then the arbitrariness of the line becomes a problem.

[00:10:18] Speaker 03:
If he had just said, you know, there isn't enough evidence that edema is a sufficient problem that it needs to be accounted for in the RFC, then maybe that would have been supported by substantial, but it just wasn't written that way.

[00:10:34] Speaker 04:
Well, Your Honor, I think what we have to distinguish is between severe edema, which the government doesn't dispute.

[00:10:40] Speaker 04:
Somebody with severe edema may very well have to sit in reclined position.

[00:10:45] Speaker 03:
You're using severe in a different sense than the... Not in the step two sense.

[00:10:49] Speaker 04:
Step two sense, right.

[00:10:51] Speaker 04:
It would be four plus pitting edema, because edema is on the scale of one through four.

[00:10:57] Speaker 04:
That person would have to have their legs elevated.

[00:11:00] Speaker 04:
But in this case, your honor, there were only two instances where edema was observed by Dr. Park.

[00:11:08] Speaker 04:
And that was a one plus putting edema in February of 2019.

[00:11:12] Speaker 04:
And then the very next month, he noted that it was improving.

[00:11:16] Speaker 04:
And then in November of 2019, Mr. Park noted that it was not uncomfortable from the fluid accumulation.

[00:11:24] Speaker 04:
So what we had here was not significant edema.

[00:11:30] Speaker 04:
What we had here was very mild edema that he then didn't report to all the other doctors.

[00:11:35] Speaker 04:
The LJ goes through the very limited record here and notes when doctors

[00:11:39] Speaker 04:
we're specifically not calling out edema.

[00:11:42] Speaker 04:
He notes when the records are silent on it.

[00:11:44] Speaker 04:
So the ALJ is aware of this issue all the way through and so what the ALJ included was a prophylactic limitation that corresponds with the very

[00:11:55] Speaker 04:
limited record here of edema and Under the standard review the alj's decision is reviewed for a reasonableness determination was it reasonable for the alj to find that this limitation was supported and in light of the largely absent evidence of edema and

[00:12:15] Speaker 04:
in this case, the ALJ could reasonably assume, just as every airline charges premium money for, that a little extra legroom, having your feet slightly elevated, is more comfortable.

[00:12:30] Speaker 04:
And the option of that would relieve what little concerns Mr. Willard had about his edema in this case.

[00:12:41] Speaker 04:
And your honor, I would also point that the commissioner noted that even if the ALJ had no basis for this limitation whatsoever, and it was just gratuitously put in that no way prejudices Mr. Willard because the ALJ provided very sound reasons for rejecting greater limitations.

[00:13:02] Speaker 04:
And it's ultimately Mr. Willard's burden to prove what limitations should be in the residual functional capacity assessment.

[00:13:10] Speaker 04:
I would note that it's also not necessary here that the ALJ tie the RFC to any medical opinion, because as this court has said in rounds versus Commissioner of Social Security, the ALJ is equipped to translate medical evidence into residual functional capacity assessment.

[00:13:27] Speaker 03:
Here's the problem that I have.

[00:13:29] Speaker 03:
So say, for example, this comment from the ALJ

[00:13:34] Speaker 03:
I'm looking at 544 of the administrative record, page 11 of the decision.

[00:13:40] Speaker 03:
He says, for the reasons discussed above, the claimant is unable to perform the demands found by the medical consultants.

[00:13:48] Speaker 03:
Here's where he's talking about the earlier state agency medical consultants.

[00:13:52] Speaker 03:
In particular, given his chronic leg edema, he is unable to stand or walk for long and must sit and elevate his feet by eight inches.

[00:14:06] Speaker 03:
So it's not done as, let me throw something in gratuitous.

[00:14:10] Speaker 03:
He has to do this.

[00:14:11] Speaker 03:
This is why I'm rejecting the state

[00:14:14] Speaker 03:
medical opinions so he seems to have rested on the ground that there is something here that must be dealt with but I'm gonna just make up a limitation that is the border and kinda makes no sense because it's not high enough to actually move any fluid back.

[00:14:33] Speaker 04:
well your honor what I think what it is is a prophylactic and that is yes if somebody has significant edema where their legs are very swollen yes they would have to have their heart their legs elevated above their heart but in this case when mr. will it was showing up to doctors

[00:14:52] Speaker 04:
They, after March of 2019, they simply were not observing any of this edema.

[00:15:01] Speaker 04:
So the ALJ, out of an abundance of caution, tempered that state agency opinion

[00:15:08] Speaker 04:
in Mr. Willard's favor by including this additional limitation, and then the ALJ said must be allowed.

[00:15:14] Speaker 04:
So not that he must do it, but he must be allowed.

[00:15:17] Speaker 04:
And under Kaufman, this court has to, in interpreting the ALJ's decision, read the ALJ's decision holistically.

[00:15:24] Speaker 04:
So we have what the RFC says, we have what the ALJ discusses in terms of the state agency doctor, as your honor pointed out.

[00:15:33] Speaker 04:
We also have when he discusses Dr. Park's opinion.

[00:15:36] Speaker 04:
Indeed, Dr. Park said,

[00:15:37] Speaker 04:
that this leg elevation limitation was due to severe edema, which the ALJ pointed out.

[00:15:45] Speaker 04:
There are only two instances where Dr. Park noted edema, and then thereafter, he denied edema, and it just simply wasn't seen.

[00:15:54] Speaker 01:
Your friend on the other side suggested that it's common knowledge that if you have edema, you have to elevate your legs pretty high.

[00:16:01] Speaker 01:
Do you agree with that?

[00:16:03] Speaker 04:
Well, I mean again the government doesn't dispute that some people might have edema that is so severe that it has to be they have to elevate their legs above their heart but the Commissioner does not dispute that does not concede on this record that Such a limitation was necessary because there was very there's only mild edema observed

[00:16:24] Speaker 04:
and only for a narrow two-month period, and a period that was already exceptionally narrow.

[00:16:29] Speaker 04:
Indeed, after March of 2020, he pursued no treatment whatsoever in this case.

[00:16:35] Speaker 03:
I mean, if the ALJ had said that he doesn't need any leg elevation at all, this would be, frankly, an easier case.

[00:16:45] Speaker 03:
The substantial evidence would support that judgment.

[00:16:48] Speaker 03:
But he just didn't write it that way, and we can't

[00:16:51] Speaker 04:
Under january pretend that that's what he did he it's not what he wrote Well, we have two issues here did the claimant breed make it meet his burden of showing greater limitations and It's clear that he did not given the the fact he denied having problems and the fact that the LJ properly discounted any medical opinion that might support greater limitations and

[00:17:16] Speaker 04:
And then the question is, did the ALJ prejudicially err by including the limitation that the ALJ did?

[00:17:23] Speaker 04:
And in this case, consistent with Johnson v. Shalala, even if it was unsupported by, even if it was ill-conceived prophylactic,

[00:17:33] Speaker 04:
the claimant simply is not burdened by its inclusion because he can still work with its inclusion in there.

[00:17:41] Speaker 03:
So let me just ask a procedural question.

[00:17:44] Speaker 03:
Just hypothetically suppose we were to conclude that there was a defect here.

[00:17:51] Speaker 03:
Does it have to go back a third time now or would we just order benefits or what would we do with that?

[00:18:00] Speaker 04:
Well, the argument, I believe, is that if the ALJ erred, then it stands to reason that the only limitation that would be justified is legs elevated above the heart.

[00:18:13] Speaker 04:
And it would be the commissioner's position that that is not supported by the concessions here, it's not supported by

[00:18:21] Speaker 04:
uh... the lj's uh... you have to go back for a third it would it would it would decide whether any edema restriction was warranted at all it would your honor but again it's the commissioner's position there's no prejudice understand but I want to understand how the decision tree would work depending on whichever way we go yes and I will note that the commissioner said that and John Savichelela was controlling here in our answering brief and that response uh... was not addressed uh... in the reply brief

[00:18:50] Speaker 01:
Can you, before your time runs out, can you briefly address the frequent urination because he testified because of his medicine he has to go to the bathroom frequently.

[00:18:59] Speaker 01:
The ALJ opinion doesn't seem to address that at all.

[00:19:03] Speaker 04:
Well, the ALJ specifically addresses the allegation at the top of 541.

[00:19:08] Speaker 01:
Yeah, mentions it but doesn't discount or, you know, doesn't explain why, you know, that's not being accommodated.

[00:19:15] Speaker 04:
I think then this is squarely within the Bayless analysis.

[00:19:20] Speaker 04:
The ALJ had very few records here.

[00:19:22] Speaker 04:
The ALJ summarized all the records.

[00:19:25] Speaker 04:
The arc it's conceded that at 24 of the opening brief that there is no medical evidence.

[00:19:34] Speaker 01:
So given that this one seems much more common sense if you're taking diuretics you know that's part of it is you go to the bathroom often you drink coffee go to the bathroom often if you're taking medicine prescribed medicine.

[00:19:47] Speaker 01:
You will probably have to go to the bathroom pretty often.

[00:19:49] Speaker 01:
He testified to that.

[00:19:50] Speaker 01:
So it seems like this is much less so than, much more so than the DEMA and elevation, how high your feet have to be elevated.

[00:19:58] Speaker 01:
It seems like if you take diuretics, you'll have to go to the bathroom often.

[00:20:01] Speaker 04:
I mean, he alleged a profound limitation of every 15 to 20 minutes for six hours.

[00:20:08] Speaker 04:
And that is wholly unreflected in the medical record.

[00:20:13] Speaker 04:
He's never reported that as a complaint.

[00:20:16] Speaker 04:
And the medical record is silent on that issue.

[00:20:20] Speaker 02:
Medical record is, but there's other evidence in the record of frequent urination, of multiple trips, and has to go to the bathroom.

[00:20:28] Speaker 02:
Is brother-in-law or brother?

[00:20:31] Speaker 04:
Well, his brother only mentioned it at 2.50 as it's occurring that night.

[00:20:37] Speaker 04:
And in this case, consistent with Bayliss, when we have a side effect from a medication that is simply not complained about or reflected in the medical record, the ALJ really had nothing further to discuss.

[00:20:54] Speaker 04:
The ALJ found that, acknowledged the allegation,

[00:20:58] Speaker 04:
went through the medical record, which is silent, and then ultimately found it didn't support additional limitations.

[00:21:04] Speaker 04:
And the ALJ provided other reasons for discounting his brother's testimony that really aren't challenged on appeal.

[00:21:14] Speaker 04:
And unless this Court has any further questions, the Commissioner would ask this Court to affirm.

[00:21:17] Speaker 03:
All right.

[00:21:17] Speaker 03:
Thank you, counsel.

[00:21:19] Speaker 03:
We'll hear rebuttal.

[00:21:24] Speaker 00:
Thank you, Your Honors.

[00:21:27] Speaker 00:
First, I want to address the frequent urination.

[00:21:29] Speaker 00:
That wouldn't be reported as a side effect, because that's the actual reason that you use the Lasix, is you're using it to eliminate excess water.

[00:21:39] Speaker 00:
As I mentioned in the briefing, the questionable part came when he was using Lasix but was not urinating very often.

[00:21:47] Speaker 00:
That's when it was remarkable.

[00:21:49] Speaker 00:
And they adjusted his dosages to address that.

[00:21:51] Speaker 00:
And after that, it's not mentioned again.

[00:21:54] Speaker 00:
It's going to be an issue that he has to deal with, especially if he's in a position where he's going to be having his legs down.

[00:22:02] Speaker 00:
He's going to need to get rid of more fluid.

[00:22:04] Speaker 00:
So at the end of the day, the ALJ summarized medical evidence.

[00:22:11] Speaker 00:
But he never even attempted to address

[00:22:14] Speaker 00:
the evidence and the testimony.

[00:22:29] Speaker 00:
Independent of the raising legs that issue can determine whether or not he's disabled as the vocational testimony is already addressed it too many trips the restroom you can be away from the workspace you cannot maintain employment, so using either Either error is going to result in Mr.. Will they're being found disabled it seems pointless to go back for a third hearing now and

[00:22:53] Speaker 00:
what, five years after he's already been found disabled for a limited period of time in which there's no new medical evidence to be gained and the only thing that you can really do is just call upon a medical consultant to confirm that these are gonna be issues that he's gonna deal with.

[00:23:11] Speaker 00:
So our position is that Mr. Willard should be found disabled.

[00:23:16] Speaker 00:
This decision should be reversed and he should be remanded for payment of benefits for that closed period of time.

[00:23:23] Speaker 00:
to hear.