Legal Case Summary

with all due respect, Mr. Martin, something happens between year 33 and 36. Apparently, I feel like I've been at this a long time. My name is Bruce Billman. I represent Lisa Dunn in this matter. I want to sincerely thank the Court for offering us the opportunity to offer further comments about the very important issues in this case. As time allows today, I'll be addressing the significance of this Court's published opinion last week in Maseo v. Colvin on the way to the professional opinions and the credibility issues raised and breached. Before beginning with the arguments and chief, however, I feel like I need to take something off the table. In her brief, the commissioner offers at least three different arguments for affirming the ALJ's decision. Those arguments were never a basis for the denial of the claim by the ALJ. Thus any of the following arguments proffered in the commissioner's brief or in her argument today should be rejected out of hand under the well-mode and Chenery doctrine. First, the commissioner has argued that Ms. Dunn's credibility should have been discounted, quote unquote, because the objective medical evidence contradicted Dunn's extreme allegations. This reason never appears in the ALJ's decision. Secondly, Ms. Dunn's credibility should be discounted because of this supposed, quote, unquote, contradictory statements

. This reason also never appears in the ALJ's decision. And then finally, there's a significant portion of the commissioner's argument that contends that Ms. Dunn's psychiatric condition had improved. The ALJ did make reference to improvement in his decision, but the improvement was only with respect to Ms. Dunn's physical problems. He never mentioned, said, or found that Ms. Dunn's psychiatric problems had improved at all. The only sentence contained in the ALJ's decision about improvement is that Ms. Dunn's migraine headaches and rheumatoid arthritis have been responsive to treatment, including medications and trigger point injections. Ms. Dunn has never contended that this case was about her physical problems at all. This case has always been about her psychiatric problems, but the point is that Ms. Dunn's psychiatric, supposed psychiatric improvement, was never a basis of the ALJ's decision. And any argument to the contrary should be rejected. I'd like to turn to the effect of this court's decision last week in Moscow, V. Colton

. It's a published opinion, and a great deal of the rationale in Moscow applies with sizeable force to the facts and findings in Ms. Dunn's case. First, the Moscow court noted that the central core concept of disability has to do with one's ability to work consistently. Quoting Moscow at page 11 of the opinion, although the ALJ concluded that Moscow can perform certain functions, he said nothing about Moscow's ability to perform the for a full work day. The missing analysis is especially troubling because the record contains conflicting evidence as to Moscow's residual functional capacity. The difference between Moscow and Ms. Dunn's case is that the evidence in Ms. Dunn's case, the evidence, has no conflict whatsoever as to Ms. Dunn's residual functional capacity, each and every one of the health care professionals agreed that Ms. Dunn has a market impairment in her ability to concentrate, persist, and maintain pace on a job. This led to the uncontradicted testimony of the vocational expert that ruled out all work, that's at page 98 of the record. There are four health care professionals here, two are Ms. Dunn's health care professionals, her treating psychiatrist Dr. Swing, who apine that Ms. Dunn had a market impairment in her ability to concentrate, persist, and maintain pace. Ms

. Dunn's counselor, Ms. Gosnell, also apine that she had a market impairment in the ability to concentrate, persist, and maintain pace. But the other two professionals were on the commissioner's side of the coin. Dr. Marion was a consultative psychologist that saw Ms. Dunn one time, and she apined behavioral disturbance would take the form of early quitting due to the build-up of pressure and responsibility. And then finally, and I think most remarkably, the commissioner, of course, has a in-house psychologist review the records, all of the records, and come to some sort of conclusion about what Ms. Dunn can do and what she can't do. That doctor in this case was Sandra Francis, a psychologist, and her opinion is found at page 923 of the record. She found that Ms. Dunn had a market impairment in the ability to concentrate, persist, and maintain pace. And once again, when that fact was given as the only additional fact to the administrative law judge's hypothetical, the vocational expert testified unequivocally that no work would be available for such a person. What even more remarkable here is that the administrative law judge assigned different weight to the various health care professional opinions, and the weight that he assigned the most to was Dr. Francis. He gave Dr. Francis's opinion, quote-unquote, significant weight

. The Mosseo opinion also points to language in an administrative law judge's decision, which is identical to the language contained in the Dunn-Dunn-A-LJ decision. It's something called the Bjornsson boilerplate, and it comes from a seventh circuit case, Bjornsson v. Astrid. The language is, careful consideration of the evidence. The undersigned finds that claimants medically determinable impairments could reasonably be expected to cause the alleged symptoms. However, the statements concerning the intensity, persistence, and limiting effects of the symptoms are not credible to the extent they're inconsistent with the above residual functional capacity. In other words, the seventh circuit found in the Mosseo court agreed that this gets things backwards by implying that the ability to work is determined first and then used to determine the claimant's credibility. That is error according to Mosseo. It can be harmless error, but only if the ALJ properly analyzed credibility elsewhere. In Mosseo's case, the ALJ pointed to only two factors with regard to Mosseo's credibility. The first, I think, is relatively easy to dismiss. He says that Mosseo is incredible because she's failed to comply with treatment. The record on this is just crystal clear. He points for the government points to four instances where Mosseo did not take a medication at some point during a visit. She failed to take well butrin wants. She failed to take provigial wants

. She failed to take armer thyroid wants and she failed to take abilify wants. But this record shows that Mosseo has taken 45 different kinds of medications. And they're all in the record. I provided the court, the ALJ, with all the prescription printouts from the various pharmacies that Mosseo had gone to. And there are 45 different medications. I went back last night and I actually counted how many times she failed things. She failed 467. You know how long she had been on the billify? It was not long. It was only from one visit to the next. And when they're monitoring her therapeutic levels at all for the psych... I don't think so because she didn't take the abilify. Instead, Dr. Swing, when told that she had not taken the abilify, Dr. Swing re-prescribed a different medication instead

. Was there any evidence that it was a contract indications for her that was just a matter of... He can see it to her wish. I believe it's just he can see it to her wishes. But the point is that the government is casting a death sentence in terms of the decision by the ALJ because Mosseo has done, missed 4 out of 467 different medications that she took. This doesn't even begin to consider things like missing appointments or not following up on referrals. The government, the ALJ expected perfection. You can't demand perfection here in terms of compliance. If an ALJ can deny a claim because somebody missed a med once, nobody should ever apply for social security discipline. It's just that simple. The other reason brought forth by the administrative law judge for discounting Ms. Dunn's credibility was the claimant, and this is a quote, the claimant has not generally received the type of medical treatment one would expect from a totally disabled individual. We have to look at the exact language. Generally, this is not a decision about what goes on generally. This is supposed to be a decision about an individual

. So that's an indication the ALJ is not using this as a credibility factor for the individual but a general measure. Counsel, that might be a little overstabable. What's our DSM3? I'm sorry. What's our DSM3? What is the diagnosis scale in terms of psychiatric problem? What is it? Dr. Swing diagnosed her as bipolar. All right. So what did you put that in a clinical sense? What they're saying is based on having a diagnosis bipolar, it seems like her treatment is inconsistent with that diagnosis. Even though they use the word generally, generally it doesn't really mean generally in terms of non-specific, but in terms of generally with the DSM3 of bipolar, one's treatment history would be different than what they see in the record clinically. So can you respond to that? I can. Thank you for answering. I see my time is up here. Thank you, Ron. You have to put that language together with the rest of what the ALJ said. The ALJ not only just said it was a general proposition, but he said it was she had received the type of medical treatment that one would expect. Now, Ms. Dunn went to a psychiatrist once every three months

. She had, I believe, 19 visits to Dr. Swing and innumerable visits to Ms. Gosnell. If the ALJ is worried about the type of treatment she's receiving, I don't know how that's inconsistent with her claim of a disabling problem. Now, she got the type of treatment she was supposed to get. If the ALJ meant to say, I'm worried about the degree of the treatment that she got. He didn't say it. For example, if he was worried that she had not been hospitalized, but the rule here is only that the claimant must show that their symptoms can reasonably be accepted as consistent with the evidence. It's not as demanding as I have to check off boxes of some degree of treatment that only the ALJ knows. I don't know it. It's not defined in the ranks. And I provided the court with the common definitions of routine and conservative. This is hardly routine and conservative. When Dr. Swing is adjusting medications in 16 out of the 19 visits. Thank you

. Good morning, Your Honours. May I please the court? I'm Elizabeth Wu. I'm representing the Commissioner of Social Security. The core issue on appeal here is one that's well familiar to the court and it is not novel. It is simply whether the ALJ is finding that the plaintiff was not disabled is supported by the substantial evidence on the record and whether the correct legal standards were applied. At the outset, I think it's really important to observe that this is a record review case. And I believe my steam to counsel is making much of the fact that the commissioner just points to, for instance, in the case of noncompliance with four instances out of the record. But effectively what plaintiff is asking the court to do is to kind of hand pack this ALJ's decision. The commissioner by pointing out these four instances in the record, for instance, with respect to the noncompliance, which by the way were not the only instances of noncompliance. Clearly, as briefed, we said for example, it was by example only. But what the commissioner is asking the court to do is what the ALJ did and that is to look at those instances against the whole of the record. So the entire record has to be considered together as a whole to reach any type of determination as to whether substantial evidence supported these findings. Have a sky with the record what number have you elevated the four to? Well, your honor just in the ALJ's expressed decision alone, his explicit decision, he cites five more instances of yes, yes, your honor. On the joint appendix pages 14, 15 and 16, there are five more instances starting in January 2009. And there's actually a mistake in the ALJ must be some type of scrivener's error. He said December 2009, but one looks back to the record starting in January 2009

. Dr. Swing noted that the plaintiff was not taking her full dosage of effects or she he clearly says there as well because she could not afford the full dose. That is an instance of noncompliance, however. Then in December, about a year later, she was not on her end role for her rheumatoid arthritis. In April and May of 2010, she was discharged from physical therapy because she just did not appear for noncompliance. And then again in 2010 and 2011, she failed to take ambral and these are instances of self-discontinuation. That's still rather than minimum, isn't it? We are on her again. Plain of argues, you can't ask for 100% compliance, zero tolerance. And clearly, that's not what the commissioner is asking the court to do. The record shows that Ms. Dunn's instances of noncompliance span almost the entire course of her treatment. She was treated from 2007 through 2010 and starting in 2007, she's already self-discontinuing medication. But you have to put this in the context. I don't know about the number small, but look at what her problem is. The problem is in the psychiatric area. We just like telling somebody who's manic depressive just go cheer up. That's the problem. They just can't just cheer up. And that's part of the problem, you know, it's a struggle to take your medicine. It's a struggle to get out of bed. It's a struggle to do those things. Now, I'm talking about just a broken leg. You didn't take some calcium pills every morning to build a bone. It's just like we talked about the very thing that makes you want to do what you're supposed to do is the very thing that happens because that's your diagnosis. When it be rather draconian, it's supposed to take those diminimous numbers. Given her DSM3, you know, that's pretty serious. By poll, it turns you up to therapeutic levels in your blood and all those things to say that, oh, well, you didn't do it 9, 10, 20 times out of period of time with over 400. You don't dispute the number that you'll learn it counsel. I do not dispute that there are probably, she probably filled 446 prescriptions. I don't think that that means that there were 446 separate medications clearly. So when he said, for instance, that she did not take her medication for separate times, that that's a bit of a, I think, a misstatement. But certainly, that's very true, Judge Gregory, that this is a difficult diagnosis that she is dealing with

. That's the problem. They just can't just cheer up. And that's part of the problem, you know, it's a struggle to take your medicine. It's a struggle to get out of bed. It's a struggle to do those things. Now, I'm talking about just a broken leg. You didn't take some calcium pills every morning to build a bone. It's just like we talked about the very thing that makes you want to do what you're supposed to do is the very thing that happens because that's your diagnosis. When it be rather draconian, it's supposed to take those diminimous numbers. Given her DSM3, you know, that's pretty serious. By poll, it turns you up to therapeutic levels in your blood and all those things to say that, oh, well, you didn't do it 9, 10, 20 times out of period of time with over 400. You don't dispute the number that you'll learn it counsel. I do not dispute that there are probably, she probably filled 446 prescriptions. I don't think that that means that there were 446 separate medications clearly. So when he said, for instance, that she did not take her medication for separate times, that that's a bit of a, I think, a misstatement. But certainly, that's very true, Judge Gregory, that this is a difficult diagnosis that she is dealing with. The symptoms are difficult, but the question is whether or not the ALJ's discounted credibility determination with respect to misdone is proper in view of the fact that she was not compliant with the treatment modalities that were presented to her. And... I can ask you one thing. Other than the four instances that we just heard about, what non-compliance related to her mental health care? You mentioned rehab or not. Those didn't have anything to do with her mental treatment. No, you're honored. The N-Brell and the physical therapy was clearly for her joint pain. And you're honored, you know, the ALJ says in his decision that I am giving less weight to misdone's testimony here today. And her testimony was not only that her psychiatric symptoms would prevent her from working, but also that she is clearly suffering from a lot of physical difficulty. So that comes with the other impairments that the ALJ credited, which were the rheumatoid arthritis in fibromyalgia. And she, in her testimony, and this is part and parcel of the ALJ's analysis, is that she is saying, you know, in a good week, or excuse me, in a good month. Perhaps I have to..

. The symptoms are difficult, but the question is whether or not the ALJ's discounted credibility determination with respect to misdone is proper in view of the fact that she was not compliant with the treatment modalities that were presented to her. And... I can ask you one thing. Other than the four instances that we just heard about, what non-compliance related to her mental health care? You mentioned rehab or not. Those didn't have anything to do with her mental treatment. No, you're honored. The N-Brell and the physical therapy was clearly for her joint pain. And you're honored, you know, the ALJ says in his decision that I am giving less weight to misdone's testimony here today. And her testimony was not only that her psychiatric symptoms would prevent her from working, but also that she is clearly suffering from a lot of physical difficulty. So that comes with the other impairments that the ALJ credited, which were the rheumatoid arthritis in fibromyalgia. And she, in her testimony, and this is part and parcel of the ALJ's analysis, is that she is saying, you know, in a good week, or excuse me, in a good month. Perhaps I have to... I can't get dressed five to seven days. I'm staying in bed. On a good day, I can only stand or sit or walk for X number of hours or for certain distance. And so she certainly is speaking to not only her mental impairments, but also the physical symptoms that come with the other clearly found impairments. So, yes, her honor and answer to your question. There are those noncompliance. And noncompliance that we're not even mentioned in the Appleese brief have mostly to do with four of those five have to do with her physical disabilities or impairments, excuse me. And the ones that we did cite, yes, those are the instances where she clearly is not taking medication that has something to do with treating her psychiatric symptoms. And I think it's important also to note that the ALJ did not base his discounted credibility analysis solely on her noncompliance. He, as Council has pointed out, also spoke to the fact that it seems like the treatment that she received was routine and conservative. And this routine and conservative analysis, I think, rather than giving anybody any Harper, basically this is the court, it's well settled in Grossvie Heckler, that if a symptom can be reasonably controlled by medication or treatment, it's not disabling. So, what the ALJ does here is he looks at the kinds of treatment she's received, which was talk therapy with Ms. Gosnell, her counselor, and also the medication for her depression and her anxiety. And what he says is the substantial evidence in the record supports that she responded. She reasonably responded to that treatment. It was routine and conservative

. I can't get dressed five to seven days. I'm staying in bed. On a good day, I can only stand or sit or walk for X number of hours or for certain distance. And so she certainly is speaking to not only her mental impairments, but also the physical symptoms that come with the other clearly found impairments. So, yes, her honor and answer to your question. There are those noncompliance. And noncompliance that we're not even mentioned in the Appleese brief have mostly to do with four of those five have to do with her physical disabilities or impairments, excuse me. And the ones that we did cite, yes, those are the instances where she clearly is not taking medication that has something to do with treating her psychiatric symptoms. And I think it's important also to note that the ALJ did not base his discounted credibility analysis solely on her noncompliance. He, as Council has pointed out, also spoke to the fact that it seems like the treatment that she received was routine and conservative. And this routine and conservative analysis, I think, rather than giving anybody any Harper, basically this is the court, it's well settled in Grossvie Heckler, that if a symptom can be reasonably controlled by medication or treatment, it's not disabling. So, what the ALJ does here is he looks at the kinds of treatment she's received, which was talk therapy with Ms. Gosnell, her counselor, and also the medication for her depression and her anxiety. And what he says is the substantial evidence in the record supports that she responded. She reasonably responded to that treatment. It was routine and conservative. It thankfully did not require more. There is nowhere in the record that talks about other more aggressive or alternative methods of treatment other than tweaking her medication, which we're not discounting, but tweaking it to reach an optimal level indicates that medication is still assisting in controlling her psychiatric symptoms. And what the record shows is that, again, starting in 07 through 09, both Dr. Swing and Ms. Gosnell's record show, there is an ebb and flow, but there is certainly periods, periods of improvement where Ms. Dunn herself reports, I am feeling a lot better. I have a lot more energy. I can do things outside of the house. I want to look for a job. Then clearly she also comes back at certain times saying, I'm more anxious, I'm feeling depressed. You know, the job search is getting me down, that type of thing, but it is showing this, again, looking at the entire record, not just parsing out a bad month, not just parsing out a good month. It's showing that she is reasonably responding to the medication. What, where in your scenario is, would question her credibility in that? Everything you just say for the last two and a half minutes, how does that, the smudge her credibility? Well, she comes before the ALJ and testified under oath that I can't, my psychiatric symptoms, my physical symptoms are so debilitating that I cannot work. And I believe what these instances in the record and these clear periods of real improvement and an ability to do things outside of the home, inside of the home, speak to the fact that she be persistence, the intensity of the symptoms that she was testifying to. Also, it is on the issue at the time before the ALJ, or in fact, relied by the record. Council also brings up the Maseo case that was recently decided by this court and we would just briefly distinguish this case

. It thankfully did not require more. There is nowhere in the record that talks about other more aggressive or alternative methods of treatment other than tweaking her medication, which we're not discounting, but tweaking it to reach an optimal level indicates that medication is still assisting in controlling her psychiatric symptoms. And what the record shows is that, again, starting in 07 through 09, both Dr. Swing and Ms. Gosnell's record show, there is an ebb and flow, but there is certainly periods, periods of improvement where Ms. Dunn herself reports, I am feeling a lot better. I have a lot more energy. I can do things outside of the house. I want to look for a job. Then clearly she also comes back at certain times saying, I'm more anxious, I'm feeling depressed. You know, the job search is getting me down, that type of thing, but it is showing this, again, looking at the entire record, not just parsing out a bad month, not just parsing out a good month. It's showing that she is reasonably responding to the medication. What, where in your scenario is, would question her credibility in that? Everything you just say for the last two and a half minutes, how does that, the smudge her credibility? Well, she comes before the ALJ and testified under oath that I can't, my psychiatric symptoms, my physical symptoms are so debilitating that I cannot work. And I believe what these instances in the record and these clear periods of real improvement and an ability to do things outside of the home, inside of the home, speak to the fact that she be persistence, the intensity of the symptoms that she was testifying to. Also, it is on the issue at the time before the ALJ, or in fact, relied by the record. Council also brings up the Maseo case that was recently decided by this court and we would just briefly distinguish this case. One issue that led to the reversal was the court found that in MASHIO, the ALJ determined the plaintiff's credibility before assessing, excuse me, determined the RFC before assessing her credibility. And this is clearly, factually, distinguishable in this case. Although the ALJ in this case does include the same boilerplate language that was at issue in MASHIO, the ALJ here clearly and specifically engaged in a credibility analysis apart from that. And the MASHIO court said, if there is error, it's harmless error, if the ALJ were to have done that, which is what the ALJ did in this case. Here, again, to the credibility issue, the ALJ said, I am finding MISDON less credible because the routine and conservative nature of the treatment that seems to be working for her is at odds with what she is saying, how badly disabled she is or how completely disabled she is here today, and also her lack of compliance, which there's clearly social security ruling 96-7P allows the ALJ to look at the longitudinal medical records, but to consider the individual statements in view of that, that if the medical reports or the records show that the plaintiff isn't following the treatment, depending on the reason given, and there were very few reasons given here for her noncompliance, but depending on the reasons given, that there, that can impact on credibility. And finally, my remaining moments, I would like to address very briefly the characterization that the four medical opinions were, in fact, all the same. That is not the case. Clearly, Dr. Swing, Ms. Gauzzanelle found that MISDON has marked, impairments, marked difficulties that would render her unable to work, essentially. Even counsel, in brief, in footnote 5, notes that Ms. Dr. Marian, the state agency psychologist, didn't quite come out and say she can't work, but said rather that her impairments, her psychiatric impairments, would lead to her having difficulty, you know, with doing a full day, working a full day without quitting early, and that type of thing. But Dr. Marian clearly found in her RFC that Ms. DON was only mildly to moderately impaired in her ability to deal with employment stressors, and that she was capable of performing simple repetitive tasks consistently well

. One issue that led to the reversal was the court found that in MASHIO, the ALJ determined the plaintiff's credibility before assessing, excuse me, determined the RFC before assessing her credibility. And this is clearly, factually, distinguishable in this case. Although the ALJ in this case does include the same boilerplate language that was at issue in MASHIO, the ALJ here clearly and specifically engaged in a credibility analysis apart from that. And the MASHIO court said, if there is error, it's harmless error, if the ALJ were to have done that, which is what the ALJ did in this case. Here, again, to the credibility issue, the ALJ said, I am finding MISDON less credible because the routine and conservative nature of the treatment that seems to be working for her is at odds with what she is saying, how badly disabled she is or how completely disabled she is here today, and also her lack of compliance, which there's clearly social security ruling 96-7P allows the ALJ to look at the longitudinal medical records, but to consider the individual statements in view of that, that if the medical reports or the records show that the plaintiff isn't following the treatment, depending on the reason given, and there were very few reasons given here for her noncompliance, but depending on the reasons given, that there, that can impact on credibility. And finally, my remaining moments, I would like to address very briefly the characterization that the four medical opinions were, in fact, all the same. That is not the case. Clearly, Dr. Swing, Ms. Gauzzanelle found that MISDON has marked, impairments, marked difficulties that would render her unable to work, essentially. Even counsel, in brief, in footnote 5, notes that Ms. Dr. Marian, the state agency psychologist, didn't quite come out and say she can't work, but said rather that her impairments, her psychiatric impairments, would lead to her having difficulty, you know, with doing a full day, working a full day without quitting early, and that type of thing. But Dr. Marian clearly found in her RFC that Ms. DON was only mildly to moderately impaired in her ability to deal with employment stressors, and that she was capable of performing simple repetitive tasks consistently well. And that's page 9-11 of the record. And most significantly, Dr. Francis, who was the non-examining state agency psychologist, did, in fact, counsel's correct, she did check that plaintiff had marked difficulties in concentration, persistence, and pace. But what's most significant is when one reads the entire analysis by Dr. Francis, and this is specifically on page 9-26 of the record, her summary conclusions Dr. Francis had to evaluate across 20 different areas, mental activities that would have bearing on Ms. DON's ability to function in the workplace. And in none of those 20 areas did, she find that there was anything more than a mild or moderate impairment. So, the commissioner can't speculate that when she checked marked before, that that was an error, but nowhere else in her RFC, in her analysis, does she find that there was any kind of marked impairment on the part of Ms. DON in the areas of concentration, persistence, and pace, which was the area where the checkbox had marked versus something less. And most significantly, she found that the plaintiff was capable of performing routine, simple tasks in a non-stressable environment with limited coworker contact. That is not a finding of disability. That is not a situation where they are all four of these medical opinions are in agreement. And the ALJ properly based his finding on the substantial evidence on the record in assigning the greater weight to Dr. Francis. I see that my time is up, so if the court doesn't have any questions

. And that's page 9-11 of the record. And most significantly, Dr. Francis, who was the non-examining state agency psychologist, did, in fact, counsel's correct, she did check that plaintiff had marked difficulties in concentration, persistence, and pace. But what's most significant is when one reads the entire analysis by Dr. Francis, and this is specifically on page 9-26 of the record, her summary conclusions Dr. Francis had to evaluate across 20 different areas, mental activities that would have bearing on Ms. DON's ability to function in the workplace. And in none of those 20 areas did, she find that there was anything more than a mild or moderate impairment. So, the commissioner can't speculate that when she checked marked before, that that was an error, but nowhere else in her RFC, in her analysis, does she find that there was any kind of marked impairment on the part of Ms. DON in the areas of concentration, persistence, and pace, which was the area where the checkbox had marked versus something less. And most significantly, she found that the plaintiff was capable of performing routine, simple tasks in a non-stressable environment with limited coworker contact. That is not a finding of disability. That is not a situation where they are all four of these medical opinions are in agreement. And the ALJ properly based his finding on the substantial evidence on the record in assigning the greater weight to Dr. Francis. I see that my time is up, so if the court doesn't have any questions. Thank you very much. Thank you very much. Let me start with Dr. Well, let me start with what I heard Ms. Wu say here with respect to the other incidents of non-compliance. Your Honor, Judge Lewis appropriately points out that the vast majority of them, the four out of the five, respected her physical problems, which we've never contested. But the thing that I also heard was the one thing, the time that she didn't take the effects or she couldn't afford it. And the rules and the regulations, the rulings are very clear that to the degree you're going to look at non-compliance at all, you have to look at whether there's a reason why there was non-compliance and that was certainly a justifiable cause. I want to move on to Dr. Francis. The commissioner says that pages 926 and 927 of the record be lie Dr. Francis' conclusion that Ms. Dunn has a market impairment in concentration, persistence and pace. It is true. There are 20 different basic mental work activities here on those two pages and none of them are checked as market. But 13 of them are moderately limited, 13 out of the 20

. Thank you very much. Thank you very much. Let me start with Dr. Well, let me start with what I heard Ms. Wu say here with respect to the other incidents of non-compliance. Your Honor, Judge Lewis appropriately points out that the vast majority of them, the four out of the five, respected her physical problems, which we've never contested. But the thing that I also heard was the one thing, the time that she didn't take the effects or she couldn't afford it. And the rules and the regulations, the rulings are very clear that to the degree you're going to look at non-compliance at all, you have to look at whether there's a reason why there was non-compliance and that was certainly a justifiable cause. I want to move on to Dr. Francis. The commissioner says that pages 926 and 927 of the record be lie Dr. Francis' conclusion that Ms. Dunn has a market impairment in concentration, persistence and pace. It is true. There are 20 different basic mental work activities here on those two pages and none of them are checked as market. But 13 of them are moderately limited, 13 out of the 20. And that's every reason to believe why in summary, she arrived at the conclusion that the aggregation of all of these things would have resulted in a market impairment. There's no indication in the record that Dr. Francis wanted to check any other box in the box that it was market. And that's certainly consistent with what Dr. Swing said, as Goss and L said, and I believe Dr. Marien. Finally. There was a reference to Social Security ruling 96-7P. I've been doing this 36 years and I don't think I have ever had a client who couldn't work. It has always been a question of consistency, always. The fact that they're in my office says they can work. They can go to the front. They can answer the phone. It is always a question of consistency. So 96-7P rightfully points out, as I believe Judge Gregory pointed out, that you need to look at the longitudinal medical record here and that quote-unquote persist in attempts by the individual to obtain relief of symptoms such as increasing meds, trials of various modalities, and in a time to find one that works or that is not a side effects, may be a strong indication that the symptoms are a source of distress. The bottom line is that she went to the psychiatrist

. And that's every reason to believe why in summary, she arrived at the conclusion that the aggregation of all of these things would have resulted in a market impairment. There's no indication in the record that Dr. Francis wanted to check any other box in the box that it was market. And that's certainly consistent with what Dr. Swing said, as Goss and L said, and I believe Dr. Marien. Finally. There was a reference to Social Security ruling 96-7P. I've been doing this 36 years and I don't think I have ever had a client who couldn't work. It has always been a question of consistency, always. The fact that they're in my office says they can work. They can go to the front. They can answer the phone. It is always a question of consistency. So 96-7P rightfully points out, as I believe Judge Gregory pointed out, that you need to look at the longitudinal medical record here and that quote-unquote persist in attempts by the individual to obtain relief of symptoms such as increasing meds, trials of various modalities, and in a time to find one that works or that is not a side effects, may be a strong indication that the symptoms are a source of distress. The bottom line is that she went to the psychiatrist. She went to the counselor. And there is no indication that that is any way inconsistent with her claims about her problems. Annie. It sounds like she's been punished because they didn't load her up, but as much meds as they could. I think it was something different. I think the judge was expecting her to be hospitalized. And that's just simply not the case. I want to thank the court for its time. Thank you very much. We will come down and greet the lawyers and then we'll take a brief recess.

with all due respect, Mr. Martin, something happens between year 33 and 36. Apparently, I feel like I've been at this a long time. My name is Bruce Billman. I represent Lisa Dunn in this matter. I want to sincerely thank the Court for offering us the opportunity to offer further comments about the very important issues in this case. As time allows today, I'll be addressing the significance of this Court's published opinion last week in Maseo v. Colvin on the way to the professional opinions and the credibility issues raised and breached. Before beginning with the arguments and chief, however, I feel like I need to take something off the table. In her brief, the commissioner offers at least three different arguments for affirming the ALJ's decision. Those arguments were never a basis for the denial of the claim by the ALJ. Thus any of the following arguments proffered in the commissioner's brief or in her argument today should be rejected out of hand under the well-mode and Chenery doctrine. First, the commissioner has argued that Ms. Dunn's credibility should have been discounted, quote unquote, because the objective medical evidence contradicted Dunn's extreme allegations. This reason never appears in the ALJ's decision. Secondly, Ms. Dunn's credibility should be discounted because of this supposed, quote, unquote, contradictory statements. This reason also never appears in the ALJ's decision. And then finally, there's a significant portion of the commissioner's argument that contends that Ms. Dunn's psychiatric condition had improved. The ALJ did make reference to improvement in his decision, but the improvement was only with respect to Ms. Dunn's physical problems. He never mentioned, said, or found that Ms. Dunn's psychiatric problems had improved at all. The only sentence contained in the ALJ's decision about improvement is that Ms. Dunn's migraine headaches and rheumatoid arthritis have been responsive to treatment, including medications and trigger point injections. Ms. Dunn has never contended that this case was about her physical problems at all. This case has always been about her psychiatric problems, but the point is that Ms. Dunn's psychiatric, supposed psychiatric improvement, was never a basis of the ALJ's decision. And any argument to the contrary should be rejected. I'd like to turn to the effect of this court's decision last week in Moscow, V. Colton. It's a published opinion, and a great deal of the rationale in Moscow applies with sizeable force to the facts and findings in Ms. Dunn's case. First, the Moscow court noted that the central core concept of disability has to do with one's ability to work consistently. Quoting Moscow at page 11 of the opinion, although the ALJ concluded that Moscow can perform certain functions, he said nothing about Moscow's ability to perform the for a full work day. The missing analysis is especially troubling because the record contains conflicting evidence as to Moscow's residual functional capacity. The difference between Moscow and Ms. Dunn's case is that the evidence in Ms. Dunn's case, the evidence, has no conflict whatsoever as to Ms. Dunn's residual functional capacity, each and every one of the health care professionals agreed that Ms. Dunn has a market impairment in her ability to concentrate, persist, and maintain pace on a job. This led to the uncontradicted testimony of the vocational expert that ruled out all work, that's at page 98 of the record. There are four health care professionals here, two are Ms. Dunn's health care professionals, her treating psychiatrist Dr. Swing, who apine that Ms. Dunn had a market impairment in her ability to concentrate, persist, and maintain pace. Ms. Dunn's counselor, Ms. Gosnell, also apine that she had a market impairment in the ability to concentrate, persist, and maintain pace. But the other two professionals were on the commissioner's side of the coin. Dr. Marion was a consultative psychologist that saw Ms. Dunn one time, and she apined behavioral disturbance would take the form of early quitting due to the build-up of pressure and responsibility. And then finally, and I think most remarkably, the commissioner, of course, has a in-house psychologist review the records, all of the records, and come to some sort of conclusion about what Ms. Dunn can do and what she can't do. That doctor in this case was Sandra Francis, a psychologist, and her opinion is found at page 923 of the record. She found that Ms. Dunn had a market impairment in the ability to concentrate, persist, and maintain pace. And once again, when that fact was given as the only additional fact to the administrative law judge's hypothetical, the vocational expert testified unequivocally that no work would be available for such a person. What even more remarkable here is that the administrative law judge assigned different weight to the various health care professional opinions, and the weight that he assigned the most to was Dr. Francis. He gave Dr. Francis's opinion, quote-unquote, significant weight. The Mosseo opinion also points to language in an administrative law judge's decision, which is identical to the language contained in the Dunn-Dunn-A-LJ decision. It's something called the Bjornsson boilerplate, and it comes from a seventh circuit case, Bjornsson v. Astrid. The language is, careful consideration of the evidence. The undersigned finds that claimants medically determinable impairments could reasonably be expected to cause the alleged symptoms. However, the statements concerning the intensity, persistence, and limiting effects of the symptoms are not credible to the extent they're inconsistent with the above residual functional capacity. In other words, the seventh circuit found in the Mosseo court agreed that this gets things backwards by implying that the ability to work is determined first and then used to determine the claimant's credibility. That is error according to Mosseo. It can be harmless error, but only if the ALJ properly analyzed credibility elsewhere. In Mosseo's case, the ALJ pointed to only two factors with regard to Mosseo's credibility. The first, I think, is relatively easy to dismiss. He says that Mosseo is incredible because she's failed to comply with treatment. The record on this is just crystal clear. He points for the government points to four instances where Mosseo did not take a medication at some point during a visit. She failed to take well butrin wants. She failed to take provigial wants. She failed to take armer thyroid wants and she failed to take abilify wants. But this record shows that Mosseo has taken 45 different kinds of medications. And they're all in the record. I provided the court, the ALJ, with all the prescription printouts from the various pharmacies that Mosseo had gone to. And there are 45 different medications. I went back last night and I actually counted how many times she failed things. She failed 467. You know how long she had been on the billify? It was not long. It was only from one visit to the next. And when they're monitoring her therapeutic levels at all for the psych... I don't think so because she didn't take the abilify. Instead, Dr. Swing, when told that she had not taken the abilify, Dr. Swing re-prescribed a different medication instead. Was there any evidence that it was a contract indications for her that was just a matter of... He can see it to her wish. I believe it's just he can see it to her wishes. But the point is that the government is casting a death sentence in terms of the decision by the ALJ because Mosseo has done, missed 4 out of 467 different medications that she took. This doesn't even begin to consider things like missing appointments or not following up on referrals. The government, the ALJ expected perfection. You can't demand perfection here in terms of compliance. If an ALJ can deny a claim because somebody missed a med once, nobody should ever apply for social security discipline. It's just that simple. The other reason brought forth by the administrative law judge for discounting Ms. Dunn's credibility was the claimant, and this is a quote, the claimant has not generally received the type of medical treatment one would expect from a totally disabled individual. We have to look at the exact language. Generally, this is not a decision about what goes on generally. This is supposed to be a decision about an individual. So that's an indication the ALJ is not using this as a credibility factor for the individual but a general measure. Counsel, that might be a little overstabable. What's our DSM3? I'm sorry. What's our DSM3? What is the diagnosis scale in terms of psychiatric problem? What is it? Dr. Swing diagnosed her as bipolar. All right. So what did you put that in a clinical sense? What they're saying is based on having a diagnosis bipolar, it seems like her treatment is inconsistent with that diagnosis. Even though they use the word generally, generally it doesn't really mean generally in terms of non-specific, but in terms of generally with the DSM3 of bipolar, one's treatment history would be different than what they see in the record clinically. So can you respond to that? I can. Thank you for answering. I see my time is up here. Thank you, Ron. You have to put that language together with the rest of what the ALJ said. The ALJ not only just said it was a general proposition, but he said it was she had received the type of medical treatment that one would expect. Now, Ms. Dunn went to a psychiatrist once every three months. She had, I believe, 19 visits to Dr. Swing and innumerable visits to Ms. Gosnell. If the ALJ is worried about the type of treatment she's receiving, I don't know how that's inconsistent with her claim of a disabling problem. Now, she got the type of treatment she was supposed to get. If the ALJ meant to say, I'm worried about the degree of the treatment that she got. He didn't say it. For example, if he was worried that she had not been hospitalized, but the rule here is only that the claimant must show that their symptoms can reasonably be accepted as consistent with the evidence. It's not as demanding as I have to check off boxes of some degree of treatment that only the ALJ knows. I don't know it. It's not defined in the ranks. And I provided the court with the common definitions of routine and conservative. This is hardly routine and conservative. When Dr. Swing is adjusting medications in 16 out of the 19 visits. Thank you. Good morning, Your Honours. May I please the court? I'm Elizabeth Wu. I'm representing the Commissioner of Social Security. The core issue on appeal here is one that's well familiar to the court and it is not novel. It is simply whether the ALJ is finding that the plaintiff was not disabled is supported by the substantial evidence on the record and whether the correct legal standards were applied. At the outset, I think it's really important to observe that this is a record review case. And I believe my steam to counsel is making much of the fact that the commissioner just points to, for instance, in the case of noncompliance with four instances out of the record. But effectively what plaintiff is asking the court to do is to kind of hand pack this ALJ's decision. The commissioner by pointing out these four instances in the record, for instance, with respect to the noncompliance, which by the way were not the only instances of noncompliance. Clearly, as briefed, we said for example, it was by example only. But what the commissioner is asking the court to do is what the ALJ did and that is to look at those instances against the whole of the record. So the entire record has to be considered together as a whole to reach any type of determination as to whether substantial evidence supported these findings. Have a sky with the record what number have you elevated the four to? Well, your honor just in the ALJ's expressed decision alone, his explicit decision, he cites five more instances of yes, yes, your honor. On the joint appendix pages 14, 15 and 16, there are five more instances starting in January 2009. And there's actually a mistake in the ALJ must be some type of scrivener's error. He said December 2009, but one looks back to the record starting in January 2009. Dr. Swing noted that the plaintiff was not taking her full dosage of effects or she he clearly says there as well because she could not afford the full dose. That is an instance of noncompliance, however. Then in December, about a year later, she was not on her end role for her rheumatoid arthritis. In April and May of 2010, she was discharged from physical therapy because she just did not appear for noncompliance. And then again in 2010 and 2011, she failed to take ambral and these are instances of self-discontinuation. That's still rather than minimum, isn't it? We are on her again. Plain of argues, you can't ask for 100% compliance, zero tolerance. And clearly, that's not what the commissioner is asking the court to do. The record shows that Ms. Dunn's instances of noncompliance span almost the entire course of her treatment. She was treated from 2007 through 2010 and starting in 2007, she's already self-discontinuing medication. But you have to put this in the context. I don't know about the number small, but look at what her problem is. The problem is in the psychiatric area. We just like telling somebody who's manic depressive just go cheer up. That's the problem. They just can't just cheer up. And that's part of the problem, you know, it's a struggle to take your medicine. It's a struggle to get out of bed. It's a struggle to do those things. Now, I'm talking about just a broken leg. You didn't take some calcium pills every morning to build a bone. It's just like we talked about the very thing that makes you want to do what you're supposed to do is the very thing that happens because that's your diagnosis. When it be rather draconian, it's supposed to take those diminimous numbers. Given her DSM3, you know, that's pretty serious. By poll, it turns you up to therapeutic levels in your blood and all those things to say that, oh, well, you didn't do it 9, 10, 20 times out of period of time with over 400. You don't dispute the number that you'll learn it counsel. I do not dispute that there are probably, she probably filled 446 prescriptions. I don't think that that means that there were 446 separate medications clearly. So when he said, for instance, that she did not take her medication for separate times, that that's a bit of a, I think, a misstatement. But certainly, that's very true, Judge Gregory, that this is a difficult diagnosis that she is dealing with. The symptoms are difficult, but the question is whether or not the ALJ's discounted credibility determination with respect to misdone is proper in view of the fact that she was not compliant with the treatment modalities that were presented to her. And... I can ask you one thing. Other than the four instances that we just heard about, what non-compliance related to her mental health care? You mentioned rehab or not. Those didn't have anything to do with her mental treatment. No, you're honored. The N-Brell and the physical therapy was clearly for her joint pain. And you're honored, you know, the ALJ says in his decision that I am giving less weight to misdone's testimony here today. And her testimony was not only that her psychiatric symptoms would prevent her from working, but also that she is clearly suffering from a lot of physical difficulty. So that comes with the other impairments that the ALJ credited, which were the rheumatoid arthritis in fibromyalgia. And she, in her testimony, and this is part and parcel of the ALJ's analysis, is that she is saying, you know, in a good week, or excuse me, in a good month. Perhaps I have to... I can't get dressed five to seven days. I'm staying in bed. On a good day, I can only stand or sit or walk for X number of hours or for certain distance. And so she certainly is speaking to not only her mental impairments, but also the physical symptoms that come with the other clearly found impairments. So, yes, her honor and answer to your question. There are those noncompliance. And noncompliance that we're not even mentioned in the Appleese brief have mostly to do with four of those five have to do with her physical disabilities or impairments, excuse me. And the ones that we did cite, yes, those are the instances where she clearly is not taking medication that has something to do with treating her psychiatric symptoms. And I think it's important also to note that the ALJ did not base his discounted credibility analysis solely on her noncompliance. He, as Council has pointed out, also spoke to the fact that it seems like the treatment that she received was routine and conservative. And this routine and conservative analysis, I think, rather than giving anybody any Harper, basically this is the court, it's well settled in Grossvie Heckler, that if a symptom can be reasonably controlled by medication or treatment, it's not disabling. So, what the ALJ does here is he looks at the kinds of treatment she's received, which was talk therapy with Ms. Gosnell, her counselor, and also the medication for her depression and her anxiety. And what he says is the substantial evidence in the record supports that she responded. She reasonably responded to that treatment. It was routine and conservative. It thankfully did not require more. There is nowhere in the record that talks about other more aggressive or alternative methods of treatment other than tweaking her medication, which we're not discounting, but tweaking it to reach an optimal level indicates that medication is still assisting in controlling her psychiatric symptoms. And what the record shows is that, again, starting in 07 through 09, both Dr. Swing and Ms. Gosnell's record show, there is an ebb and flow, but there is certainly periods, periods of improvement where Ms. Dunn herself reports, I am feeling a lot better. I have a lot more energy. I can do things outside of the house. I want to look for a job. Then clearly she also comes back at certain times saying, I'm more anxious, I'm feeling depressed. You know, the job search is getting me down, that type of thing, but it is showing this, again, looking at the entire record, not just parsing out a bad month, not just parsing out a good month. It's showing that she is reasonably responding to the medication. What, where in your scenario is, would question her credibility in that? Everything you just say for the last two and a half minutes, how does that, the smudge her credibility? Well, she comes before the ALJ and testified under oath that I can't, my psychiatric symptoms, my physical symptoms are so debilitating that I cannot work. And I believe what these instances in the record and these clear periods of real improvement and an ability to do things outside of the home, inside of the home, speak to the fact that she be persistence, the intensity of the symptoms that she was testifying to. Also, it is on the issue at the time before the ALJ, or in fact, relied by the record. Council also brings up the Maseo case that was recently decided by this court and we would just briefly distinguish this case. One issue that led to the reversal was the court found that in MASHIO, the ALJ determined the plaintiff's credibility before assessing, excuse me, determined the RFC before assessing her credibility. And this is clearly, factually, distinguishable in this case. Although the ALJ in this case does include the same boilerplate language that was at issue in MASHIO, the ALJ here clearly and specifically engaged in a credibility analysis apart from that. And the MASHIO court said, if there is error, it's harmless error, if the ALJ were to have done that, which is what the ALJ did in this case. Here, again, to the credibility issue, the ALJ said, I am finding MISDON less credible because the routine and conservative nature of the treatment that seems to be working for her is at odds with what she is saying, how badly disabled she is or how completely disabled she is here today, and also her lack of compliance, which there's clearly social security ruling 96-7P allows the ALJ to look at the longitudinal medical records, but to consider the individual statements in view of that, that if the medical reports or the records show that the plaintiff isn't following the treatment, depending on the reason given, and there were very few reasons given here for her noncompliance, but depending on the reasons given, that there, that can impact on credibility. And finally, my remaining moments, I would like to address very briefly the characterization that the four medical opinions were, in fact, all the same. That is not the case. Clearly, Dr. Swing, Ms. Gauzzanelle found that MISDON has marked, impairments, marked difficulties that would render her unable to work, essentially. Even counsel, in brief, in footnote 5, notes that Ms. Dr. Marian, the state agency psychologist, didn't quite come out and say she can't work, but said rather that her impairments, her psychiatric impairments, would lead to her having difficulty, you know, with doing a full day, working a full day without quitting early, and that type of thing. But Dr. Marian clearly found in her RFC that Ms. DON was only mildly to moderately impaired in her ability to deal with employment stressors, and that she was capable of performing simple repetitive tasks consistently well. And that's page 9-11 of the record. And most significantly, Dr. Francis, who was the non-examining state agency psychologist, did, in fact, counsel's correct, she did check that plaintiff had marked difficulties in concentration, persistence, and pace. But what's most significant is when one reads the entire analysis by Dr. Francis, and this is specifically on page 9-26 of the record, her summary conclusions Dr. Francis had to evaluate across 20 different areas, mental activities that would have bearing on Ms. DON's ability to function in the workplace. And in none of those 20 areas did, she find that there was anything more than a mild or moderate impairment. So, the commissioner can't speculate that when she checked marked before, that that was an error, but nowhere else in her RFC, in her analysis, does she find that there was any kind of marked impairment on the part of Ms. DON in the areas of concentration, persistence, and pace, which was the area where the checkbox had marked versus something less. And most significantly, she found that the plaintiff was capable of performing routine, simple tasks in a non-stressable environment with limited coworker contact. That is not a finding of disability. That is not a situation where they are all four of these medical opinions are in agreement. And the ALJ properly based his finding on the substantial evidence on the record in assigning the greater weight to Dr. Francis. I see that my time is up, so if the court doesn't have any questions. Thank you very much. Thank you very much. Let me start with Dr. Well, let me start with what I heard Ms. Wu say here with respect to the other incidents of non-compliance. Your Honor, Judge Lewis appropriately points out that the vast majority of them, the four out of the five, respected her physical problems, which we've never contested. But the thing that I also heard was the one thing, the time that she didn't take the effects or she couldn't afford it. And the rules and the regulations, the rulings are very clear that to the degree you're going to look at non-compliance at all, you have to look at whether there's a reason why there was non-compliance and that was certainly a justifiable cause. I want to move on to Dr. Francis. The commissioner says that pages 926 and 927 of the record be lie Dr. Francis' conclusion that Ms. Dunn has a market impairment in concentration, persistence and pace. It is true. There are 20 different basic mental work activities here on those two pages and none of them are checked as market. But 13 of them are moderately limited, 13 out of the 20. And that's every reason to believe why in summary, she arrived at the conclusion that the aggregation of all of these things would have resulted in a market impairment. There's no indication in the record that Dr. Francis wanted to check any other box in the box that it was market. And that's certainly consistent with what Dr. Swing said, as Goss and L said, and I believe Dr. Marien. Finally. There was a reference to Social Security ruling 96-7P. I've been doing this 36 years and I don't think I have ever had a client who couldn't work. It has always been a question of consistency, always. The fact that they're in my office says they can work. They can go to the front. They can answer the phone. It is always a question of consistency. So 96-7P rightfully points out, as I believe Judge Gregory pointed out, that you need to look at the longitudinal medical record here and that quote-unquote persist in attempts by the individual to obtain relief of symptoms such as increasing meds, trials of various modalities, and in a time to find one that works or that is not a side effects, may be a strong indication that the symptoms are a source of distress. The bottom line is that she went to the psychiatrist. She went to the counselor. And there is no indication that that is any way inconsistent with her claims about her problems. Annie. It sounds like she's been punished because they didn't load her up, but as much meds as they could. I think it was something different. I think the judge was expecting her to be hospitalized. And that's just simply not the case. I want to thank the court for its time. Thank you very much. We will come down and greet the lawyers and then we'll take a brief recess