Legal Case Summary

Brian V. Coveon. May it please the court. My name is Marsha Ellen Anderson. I represent the appellant Sharon Faye Bryant, Desert Storm veteran, and her appeal of a denial of social security disability benefits. The standard of review in this case is whether substantial evidence supports the AELJ's decision, and whether the correct legal standards were applied. In this case, the AELJ committed three primary errors, which then led to other errors, such that the evidence upon which the AELJ based her decision was not substantial. And the court below found the errors to all be harmless with the exception of one, which they did not say whether or not it was harmless. But the question becomes how many errors can be in a case before a cease being harmless. The primary one in this case was the failure by the AELJ to develop a medical record and obtain the VA records for this claimant, when there was evidence in the evidence before the judge that there were evidence records at the VA, which would have been material to the case. The second thing, the AELJ failed to consider at all the impairment of severe depression, which was actually the primary impairment, and the basis for one of her VA disability ratings. And thirdly, the AELJ had the AELJ obtain that missing evidence, which was referred to throughout the evidence before her. There would have been enough evidence for a finding of repeated episodes of decompensation, which would have enabled the claimant to be found disabled. Now, how could that be the case if these prior episodes were all occurred prior to the onset date in this petition? We can't consider that. Oh, yes, you can, Your Honor. Tell me why

. The duty of the commissioner is to fully develop the medical evidence. And the regulations state that this commissioner is supposed to go back at least 12 months prior to the alleged onset date, and even further, if there is evidence suggesting that it would be necessary to go back further. In this case, the treating physician psychiatrist and one of the VA doctors that Miss Bryant saw in 2008 referenced numerous hospitalizations for mental impairments, and she actually had three attempted suicides. She had 10 inpatient hospitalizations that were noted by the VA doctor. And all of this would have been relevant to her current condition when she applied for disability benefits. It was all prior to onset. Not all. She did have one hospitalization when she was feeling suicidal in 2007. But that just, again, triggered that need to go back and look and see when these hospitalizations actually took place. We don't know how remote and timely they were. They could have been as recently as 2004 or a little bit before that. What is your burden? My burden? The claimant's burden. Okay. In the social security sequential analysis, the claimant has the burden that steps one through four to prove disability. And then the burden shifts to the commissioner to find jobs that the claimant is still able to do

. Right. But I'm asking with this with regard to the specific prior incidents. The claimant's burden is to provide evidence supporting disability. However, it's not solely up to the claimant to provide the evidence. It's up the commissioner has an affirmed duty to develop that evidence. And that's in the regulations. Yes. And it's in the regulations. Yes, Your Honor. Because this court has found that it's not enough to rely on the claimant to provide the evidence. Sometimes they don't aren't able to provide it all. And if there is evidence that the commissioner is aware of, they have the duty to go and develop. Well, that evidence might have gone to this, you know, the severity of the claim. But again, I ask you again, how could evidence of decompensation prior to the onset they have established the disability claim here where you can't count those? Because it would just as in bird where the ALJ would not consider medical evidence after the date less ensured. And this court found that you needed to go back and provide retrospective consideration of that evidence because it related back to the original impairment of the post-traumatic stress disorder

. In this case, the post-traumatic stress disorder began in Desert Storm. That was one of her impairments. She later developed the severe depression. And then the bipolar. And then she got EVA ratings posed to impairments. But it was incumbent upon the commissioner to look at that other earlier evidence because it established the beginning of her mental impairments all the way up to the present. And would have supported her credibility and her testimony at the hearing, which the ALJ for various reasons discounted. So you had to look back on having a little trouble with this because not because to establish disability back then, but to booster credibility with respect to disability now. Correct. And you're on a can I get a water please? You get worse on your table. We're equal opportunity water. Spencer. You take your time. Yes, Your Honor. Yes

. Any time the commissioner is faced with evidence that could possibly indicate disability, there's the post to go and develop that evidence. Now I was not, I did not represent the client or the claimant at the administrative level. And there was some question at the hearing as to whether evidence was lost and is labeled. And I'm not really sure what happened to that evidence. But once it was before the ALJ, she knew that there were episodes of decommunization as evidence by the hospital repeated hospitalizations that were referenced in that evidence. In her decision, she made a factual finding that was not correct. She said the mispron had only one or two episodes of decommunization. And that right there was prejudicial to her case because had she found repeated, Ms. Bryant would have been found disabled under the effect of disorders under paragraph C at the very least. Regardless of the onset date of those earlier. Correct. Because those earlier episodes, they don't have to be right within the time period before the commissioner because it goes to the totality of the evidence. But that's different than saying that automatically they are counted as defensive decommunization. They are automatically counted under the commission of the subpoisoned disability for purposes of considering the severity of her. For both, your honor

. And you find out in the regulation? Yes, it's in the regulations. Would you like me to cite to that? Please. Yes. I have a lot of papers here. Episodes of decommunization are described in appendix 1 to subpart P of part 404 listing of impairments under 12.00 which is mental disorders. And in that, it states that it actually defines episodes of decommunization. Exasperations are temporary increases in symptoms or signs accompanied by a loss of adaptive functioning as manifested by difficulties in performing activities of daily living, maintaining social relationships or maintaining concentration, persistence or pace. They may be demonstrated by an exacerbation exacerbation and symptoms or signs that would ordinarily require increased treatment or a less stressful situation. They can be inferred from records showing significant alteration and medication which was in this case or documentation of the need for a more highly structured psychological support system, e.g. hospitalizations, placement in a halfway house or a highly structured and directing household or other relevant information in the record about the existence of her. And then it goes on to explain the extended duration means three episodes within one year or an average of one every four months each lasting for at least two weeks. This evidence was critical because the reason why the alleged onset date was 2006 was that was a date she absolutely could no longer continue to work. And if you look at her work history after she got out of the service she had very sporadic work history from 94 up until 2006 each job lasted only a few months

. She was fired from virtually all of them because she could not maintain but not be on the job. And so and those VA records which were ongoing while during the period of time that she alleged disability starting in 2006 would have had relevant relevance of these episodes of the conversation and seeing how far back they go and that would have supported her current status of disability. So you're saying that I'm asking you. Okay so your question is do those episodes of decommensations all have to be after her alleged onset date. Well that was the first question that the question to do is asked you and you said the answer was no. And then you relied on that regulation and what it's not correct me what part of that regulation you relying on. Right correct. I think the simplest answer would be to say that in order to determine disability simply based on episodes of the compensation and nothing else. Then yes I would say they would have to be after her alleged onset date of 2006. However as probative evidence of her condition which began in 1989 and simply moved forward and never lessened and never went away they don't have to be within. And we're as authority for that because that you just told us the regulation that you read us doesn't support that it only talks about. It talks about what has. There may be a provision. Because well your honor when you look at the listing for effective disorders which was the. The severe depression was not mentioned or considered or named at all in the decision

. You would have to have either. Four of the a part a criteria. Plus two of the B or only the C. Now under that it would be medically documented history of now here is where this. Medically documented history of a chronic effective disorder of at least two years duration. That has caused more than a minimal limitation of ability to do basic work activities with symptoms or signs currently attenuated by medication or so. So go go psychosocial support. And one of the following repeated episodes of the conversation each of extended duration. Now I suppose there is a question as to whether those repeated episodes have to be within that time period after the alleged onset date because it actually says that the disorder. The effective disorder has to have lasted at least two years and here it clearly has. And it continued to the present. Right into her period after her alleged onset. So so to revive the answer I would say that those repeated episodes of the conversation do not have to be. After the alleged onset date as long as they are part of that chronic effective disorder of at least two years duration which she clearly had. I wanted to mention that

. The ALJ had several factual errors in her decision that affected the entire outcome. Of that decision and and that that was not correct under I'm sorry under this court's own cases in my and my maestro. And maestro the apple in 2001. This court said that under the social security act a reviewing court must uphold the factual findings of the secretary if they are supported by substantial evidence and were reached through application of the correct legal standard. So in this case she had several findings that were not correct factually and that would have influenced the outcome of the decision and so that her decision was not based upon substantial evidence. And I also wanted to mention that the fact that the the consultative examination report of Dr. Harkani was not considered also adversely affected I'm sorry I'm out of time. Your Honor. I can finish because that report contained an assessment of activities of daily living which is a functional assessment that the agency wants to have in these cases. And in fact the agency paid for that examination. But the consultative examiner did not mention it or refer to it in any way and yet in another part of her decision she discounted the treating psychiatrist reports an opinion that the claim it was not working because of her mental impairments by saying it was not a functional assessment of her abilities. Thank you. Thank you. Thank you. Please the court

. My name is David mervis and I'm here on behalf of the acting commissioner of social security and I'd argue I'd respectfully request this court affirm the decision of the district court. And find the substantial evidence did in fact support the final decision of the commissioner and there are three reasons there's three things worthy of discussion but I want to start with what you this court was discussing as far as the episodes of decomposition. As your Honor Judge Diaz pointed out there is a question here there are references in the record to hospitalizations that occurred prior to Ms. Bryan so let you don't say. And Ms. Bryan has contended that those episodes of if excuse me I shouldn't categorize them as episodes of the conversation they the references to prior hospitalizations. Now if those prior hospitalizations were in fact episodes of the compensation that still would not satisfy the listings because the listings are concerned with what Ms. Bryan's condition is from her alleged onset date for. Who would they be relevant. They could be I would say your honor that they would be relevant they could be relevant in this case the district court pointed out that they would be less relevance if they were remote in time. Who do we know that well I would say your honor to that that wasn't I would submit our total excuse me idle speculation on the part of the district court we don't know the exact date but what we do know and part of that reason your honor is that Ms. Bryan though represented at all points by council so hasn't produced any of these records but I would say the reason that we know that they were at least at some remove from the alleged onset is because what Ms. Bryan herself acknowledges it points out in her brief. Is that the district court excuse me I should say the ALJ had before her some 40 pages of treatment records that extended prior to her Ms. Bryan's alleged onset date her alleged onset date was in June of 2006 her application date was in December six months later so there is as Ms

. Bryan has pointed out in her brief. Treatment records they go back as far as December of 2004 and in December of 2004 and that's at the page 325 of the administrative record and what that treatment note discusses is past hospitalizations so there is evidence there's suggestion that there were past hospitalizations the commissioner doesn't dispute that but they were at least two years prior to Ms. Bryan's application date and in fact at that point were at the end of the year. So what the ALJ had before her in this case was more than well 18 months of treatment records that extended prior to her Ms. Bryan's alleged onset date and in fact two years before her application date so commissioners position is that although the commissioner does have a duty the ALJ has a duty to develop the record that was that was that was not an application of that duty in this case there were records that went well beyond or well before Ms. Bryan's application date. It was the year but I don't understand where we're picking this line. Well, Your Honor, the regulations do discuss they don't it's not it's not an automatic cutoff but the regulations say that what the ALJ's duty this is 4 or 4 or 512 D and 416 912 corresponding one for title 16 they speak of developing the record for 12 months prior to the trial date. So the ALJ has a claimant's application however there are caveats unless the claimant indicates that his or her disability began less than 12 months before the application and that's what we have in this case or as a general overall matter in terms of the listed impairments why did you come to the conclusion ultimately that they that they were only moderate in severity. What was what was crucial in that determination because if you if you if she qualifies under a listed impairment that's it that's correct and you don't get into step five and that's correct whether she can proceed whether she can hold other jobs and whether they're jobs in the economy if you you can wrap it up at step three and maybe you're due the benefit of the doubt because whether something is of moderate severity or mark severity is probably substantial part of evidentiary question the ALJ lesson to the evidence on it but why wouldn't she qualify under a marked severity standard given the fact that she can't hold down a job for more than a very short period of time other than her family she has a real version of being around people and people made her paranoid and this invariable distrust and fear really you read the right word. So I think this is very will fear of other people that makes it very difficult for her to hold down a job for any more than several months at a time and what so what makes this I realize it's an evidentiary question and deferred the ALJ for that reason and also the ALJ deal with this problem day in and day out and that their familiarity is more than that. So I think it's very likely to ensure consistency of result than us sort of taking on a single appeal on an episodic basis and say well this is person is deserving because we have to consider it in conjunction with many many other cases and making sure that there's a basic consistency along the line but why is this woman's impairment. Only only moderate and just put it in layman's terms she seemed in pretty bad shape. Well you're right I'd respond in the following way certainly this as you're on a point out there's there's an evidentiary question and the ALJ reviewed the evidence of record but what I would say specifically is that the ALJ cited in what the district court said was an especially exhaustive and thoughtful review. Of the treatment notes from Dr. Demetrova I don't know if I'm pronouncing that right. Well let's go to this treatment notes because that was the question of telling what judge Wilkinson said because in his notes he also talks about moderate but there are five categories there. There's none minimal mild moderate severe so moderate is the second highest whereas in the ALJ standard there are only four categories. None minimal none I'm sorry none mild moderate marked and extreme so moderate's in a different place in the ALJ standard so I'm not sure you can since his it was the second highest in his in the middle in hers the word moderate that is true as far as the word moderate I think you're on this point that is certainly true. Well you just started out saying that you lied on what the doctor said well I think that's I think that I would stand by that you're on her for the following reason there are occasional moderate rankings or ratings or however you'd like to put that in in Dr. Demetrova's treatment. Which which according to him is the second highest that's correct second most severe that's correct although I would say there's no translation between what Dr. Demetrova's considers moderate and what the. Commissioner considers moderate the ALJ is tasked with assessing the medical records and making a determination as to what that means it's not a because the term as your point you know points out because the scale is different there's not an easy comparison between the two and to say that this is moderate but that's the second highest so that necessarily means marked it would would not be I would say the appropriate translation but I would say that what you also Dr. Demetrova's. There were some moderate rank ratings there were far more minimal mild and none and so Dr. Demetrova well I should say Ms. Bryant her obligation her burden was to establish that she had these limitations that they persisted for 12 months and that they were of that degree of severity and in this case what you have is is treatment records that as the ALJ pointed out go up and they're show up and downs ups and downs. However there are far more none mild and minimal than there are moderates and in fact after December of 07 from the to the ratings in March of February of 2008 at administrator record 393 and the ratings at July of 2008 administrative record 401 there was simply mild depressive and none on everything else and so the commissioner takes the. The point the court is making there were certainly limitations and the ALJ accounted for those limitations I think it's important to note that what the ALJ does and did in this case is assess the medical records and then craft or make a finding as to a residual functional capacity based on those limitations so as as Judge Wilkinson you're on a pointed out there were limitations there were issues with dealing with other people and that's precisely why the ALJ in finding her

. Demetrova I don't know if I'm pronouncing that right. Well let's go to this treatment notes because that was the question of telling what judge Wilkinson said because in his notes he also talks about moderate but there are five categories there. There's none minimal mild moderate severe so moderate is the second highest whereas in the ALJ standard there are only four categories. None minimal none I'm sorry none mild moderate marked and extreme so moderate's in a different place in the ALJ standard so I'm not sure you can since his it was the second highest in his in the middle in hers the word moderate that is true as far as the word moderate I think you're on this point that is certainly true. Well you just started out saying that you lied on what the doctor said well I think that's I think that I would stand by that you're on her for the following reason there are occasional moderate rankings or ratings or however you'd like to put that in in Dr. Demetrova's treatment. Which which according to him is the second highest that's correct second most severe that's correct although I would say there's no translation between what Dr. Demetrova's considers moderate and what the. Commissioner considers moderate the ALJ is tasked with assessing the medical records and making a determination as to what that means it's not a because the term as your point you know points out because the scale is different there's not an easy comparison between the two and to say that this is moderate but that's the second highest so that necessarily means marked it would would not be I would say the appropriate translation but I would say that what you also Dr. Demetrova's. There were some moderate rank ratings there were far more minimal mild and none and so Dr. Demetrova well I should say Ms. Bryant her obligation her burden was to establish that she had these limitations that they persisted for 12 months and that they were of that degree of severity and in this case what you have is is treatment records that as the ALJ pointed out go up and they're show up and downs ups and downs. However there are far more none mild and minimal than there are moderates and in fact after December of 07 from the to the ratings in March of February of 2008 at administrator record 393 and the ratings at July of 2008 administrative record 401 there was simply mild depressive and none on everything else and so the commissioner takes the. The point the court is making there were certainly limitations and the ALJ accounted for those limitations I think it's important to note that what the ALJ does and did in this case is assess the medical records and then craft or make a finding as to a residual functional capacity based on those limitations so as as Judge Wilkinson you're on a pointed out there were limitations there were issues with dealing with other people and that's precisely why the ALJ in finding her. The ALJ was a residual functional capacity as she did limited her to occasional contact with co workers what the ALJ noted and and excuse me in the general public what the ALJ described as essentially isolated work with only occasional supervision other limitations as well but I think it's important to point out that there are it's not a simple off on switch work or not work there's work at with this specific residual functional capacity taking into account mis Bryant specific. In this case there's substantial. The last thing that a large part of her medical history is just irrelevant because it's obsolete I mean because it's still no no I wouldn't I wouldn't get a rise that that way is your general referring to to the hospitalizations that may have occurred before her alleged onset date or if I misunderstood I apologize. Well the the four diagnostic forms that doctor Srementrava completed in 05 and the 9 and 06 numerous psychiatric evaluations and she's under continuing treatment by the was under continuing treatment she's got huge number of medications. The Baltimore veterans affairs center has her under medication I guess because the bipolar disorder and the post traumatic stress disorder in the borderline personality disorder all I guess part of it arose from her service in Iraq. And you know that's that's sort of beyond the record I'm not certain that may be but that wasn't specifically it may be. And then what about the she had to be removed from an abusive marriage by her adult son and she was depression to the point of being suicidal and she there were two attempts to hang herself and one attempts one attempt to drown herself and you know it just gets to the point we and we're saying that all of these things are simply moderate well you're on I think I mean what I mean is it true that you made two attempts to hang herself and one attempt to drown herself. The references that she had to be removed from an abusive marriage of 17 years by her adult son that certainly the record it establishes that there were that the marriage was an abusive relationship and there was one suicide there were discussions comments suicidal comments in July of 2006 and that's during the period that the ALJ specifically noted their reference. The specific she led to his own page five of her brief that they were she made two attempts to hang herself and one attempt to drown herself and that she was hospitalized by Dr. Demitravo because of the attempt to commit suicide by drowning herself. That was prior to her alleged onset date to the extent prior to what prior it's uncertain you're on a prior to December of 2004 at least which is you say the onset date. No that's even earlier the onset date that was alleged was June of 2006 as was Brian was of course free to to alleged an onset date that was earlier but that's not what she did. I mean or not all these problems part of the continuum I mean can we really sort of chop them up into little time segments or. Well you're right I think that sort of I think that does get to a point that I believe Judge Diaz pointed out in to opposing council that there's a different issue there's there's weather these things count as specific check boxes on the listings in that form. And then there is a question of general severity and so it's the severity point that I'm because I don't have I restrict we restricted in our consultation of the evidence in terms of the degree of severity no you're on a but I would say that the evidence that the a LJ had before her that ran during the relevant period during the alleged onset date through the a LJ decision

. The ALJ was a residual functional capacity as she did limited her to occasional contact with co workers what the ALJ noted and and excuse me in the general public what the ALJ described as essentially isolated work with only occasional supervision other limitations as well but I think it's important to point out that there are it's not a simple off on switch work or not work there's work at with this specific residual functional capacity taking into account mis Bryant specific. In this case there's substantial. The last thing that a large part of her medical history is just irrelevant because it's obsolete I mean because it's still no no I wouldn't I wouldn't get a rise that that way is your general referring to to the hospitalizations that may have occurred before her alleged onset date or if I misunderstood I apologize. Well the the four diagnostic forms that doctor Srementrava completed in 05 and the 9 and 06 numerous psychiatric evaluations and she's under continuing treatment by the was under continuing treatment she's got huge number of medications. The Baltimore veterans affairs center has her under medication I guess because the bipolar disorder and the post traumatic stress disorder in the borderline personality disorder all I guess part of it arose from her service in Iraq. And you know that's that's sort of beyond the record I'm not certain that may be but that wasn't specifically it may be. And then what about the she had to be removed from an abusive marriage by her adult son and she was depression to the point of being suicidal and she there were two attempts to hang herself and one attempts one attempt to drown herself and you know it just gets to the point we and we're saying that all of these things are simply moderate well you're on I think I mean what I mean is it true that you made two attempts to hang herself and one attempt to drown herself. The references that she had to be removed from an abusive marriage of 17 years by her adult son that certainly the record it establishes that there were that the marriage was an abusive relationship and there was one suicide there were discussions comments suicidal comments in July of 2006 and that's during the period that the ALJ specifically noted their reference. The specific she led to his own page five of her brief that they were she made two attempts to hang herself and one attempt to drown herself and that she was hospitalized by Dr. Demitravo because of the attempt to commit suicide by drowning herself. That was prior to her alleged onset date to the extent prior to what prior it's uncertain you're on a prior to December of 2004 at least which is you say the onset date. No that's even earlier the onset date that was alleged was June of 2006 as was Brian was of course free to to alleged an onset date that was earlier but that's not what she did. I mean or not all these problems part of the continuum I mean can we really sort of chop them up into little time segments or. Well you're right I think that sort of I think that does get to a point that I believe Judge Diaz pointed out in to opposing council that there's a different issue there's there's weather these things count as specific check boxes on the listings in that form. And then there is a question of general severity and so it's the severity point that I'm because I don't have I restrict we restricted in our consultation of the evidence in terms of the degree of severity no you're on a but I would say that the evidence that the a LJ had before her that ran during the relevant period during the alleged onset date through the a LJ decision. I think that's a very different picture than the one that you're on this point why why do you say I've mentioned some factors you give me concerned about her being in a state of mark disability rather than simply moderate severity and why do you say it's all just moderate. Well again you're on our I'd point to the a LJ assessment of course the state agency consultants who reviewed the records that existed at that time that would be doctor. And Dr. Peterson and Dr. Sokas both reviewed they did conducted their reviews at different times but the records that were available to them at those that point in time in March of 2007 and June of 2007 and they both concluded that Ms. Brian had moderate limitations and not marked limitations. You're on are certainly correct that there were issues in this case as I said that there were limitations and that Ms. Brian suffered from. Well I say but my problem is I don't have a sufficient universe of these cases and a lot of the some of the things that appointed to are just dressingly very commonplace among the population. And so you don't you don't want the award of benefits to be random or capricious and the administrative process is probably the best hedge against that. So I understand a substantial evidence question I understand the expertise question I understand the consistency thing and all of those are advantages that the administrative process brings to the determination and I understand the importance of the process. I grant you those but you know there's another part of me just as a lay person which in a way I am here because it's a heavily medical medical case that just seems to me that there are really hard time getting on with life. And I certainly don't want to miss a lot of which really isn't isn't her fault you know you can't know and you're not doing that but these these things these situations arise from people who find themselves sometimes caught and you know who served the country in the military or find themselves caught in very difficult marriage situations and not their fault. And you know they seem like a small case but it's everything to the litigants and I'm just torn by it because I think she has a hard time getting on. I certainly share on this concern I don't mean to diminish or minimize her her issues and her limitations and certainly there's no allegation that she is able to function at full at full level and that's why the residual functional capacity assessment that the LJ does that the LJ finds does include limitations and if we don't dispute the fact that there were three suicide attempts

. I think that's a very different picture than the one that you're on this point why why do you say I've mentioned some factors you give me concerned about her being in a state of mark disability rather than simply moderate severity and why do you say it's all just moderate. Well again you're on our I'd point to the a LJ assessment of course the state agency consultants who reviewed the records that existed at that time that would be doctor. And Dr. Peterson and Dr. Sokas both reviewed they did conducted their reviews at different times but the records that were available to them at those that point in time in March of 2007 and June of 2007 and they both concluded that Ms. Brian had moderate limitations and not marked limitations. You're on are certainly correct that there were issues in this case as I said that there were limitations and that Ms. Brian suffered from. Well I say but my problem is I don't have a sufficient universe of these cases and a lot of the some of the things that appointed to are just dressingly very commonplace among the population. And so you don't you don't want the award of benefits to be random or capricious and the administrative process is probably the best hedge against that. So I understand a substantial evidence question I understand the expertise question I understand the consistency thing and all of those are advantages that the administrative process brings to the determination and I understand the importance of the process. I grant you those but you know there's another part of me just as a lay person which in a way I am here because it's a heavily medical medical case that just seems to me that there are really hard time getting on with life. And I certainly don't want to miss a lot of which really isn't isn't her fault you know you can't know and you're not doing that but these these things these situations arise from people who find themselves sometimes caught and you know who served the country in the military or find themselves caught in very difficult marriage situations and not their fault. And you know they seem like a small case but it's everything to the litigants and I'm just torn by it because I think she has a hard time getting on. I certainly share on this concern I don't mean to diminish or minimize her her issues and her limitations and certainly there's no allegation that she is able to function at full at full level and that's why the residual functional capacity assessment that the LJ does that the LJ finds does include limitations and if we don't dispute the fact that there were three suicide attempts. You're on right I do dispute that in the during the drowning. You know I believe there were references to prior suicide attempts. That's why I tried. Well that was I believe you're on her in there was one suicide comments I believe in July of 2006. I believe there were also references prior to that point but from the period certainly from her alleged onset date on. There was evidence of only one hospitalization and that in fact goes back further back to December of 2004 there's no evidence that I'm more of of a of additional. The LJ make of findings one way or the other on this to the suicide attempt. The LJ noted the July 2006 hospitalization for suicide. That's that's my understanding or is that in July. Probably instance threats for attempts. My understanding is in July 2006 there were suicidal threats. I don't believe there were pro there were suicidal attempts during the period between 2004 December 2004 all the way through 2000 and. But is there a question of in your view is there a question of lingering here that that the. A lot of times one advantage and fact finder has is an a LJ as you hear the actual plaintiff and you can determine sometimes whether things are genuine or whether somebody's. Exaggerating them for purposes of the hearing and so demeanor evidence has a place a big part in this in the a LJ's assessment of exaggeration

. You're on right I do dispute that in the during the drowning. You know I believe there were references to prior suicide attempts. That's why I tried. Well that was I believe you're on her in there was one suicide comments I believe in July of 2006. I believe there were also references prior to that point but from the period certainly from her alleged onset date on. There was evidence of only one hospitalization and that in fact goes back further back to December of 2004 there's no evidence that I'm more of of a of additional. The LJ make of findings one way or the other on this to the suicide attempt. The LJ noted the July 2006 hospitalization for suicide. That's that's my understanding or is that in July. Probably instance threats for attempts. My understanding is in July 2006 there were suicidal threats. I don't believe there were pro there were suicidal attempts during the period between 2004 December 2004 all the way through 2000 and. But is there a question of in your view is there a question of lingering here that that the. A lot of times one advantage and fact finder has is an a LJ as you hear the actual plaintiff and you can determine sometimes whether things are genuine or whether somebody's. Exaggerating them for purposes of the hearing and so demeanor evidence has a place a big part in this in the a LJ's assessment of exaggeration. What did the a LJ say something about. The fact that there was a credibility problem with the with the plaintiff. You're under the LJ and I see my time is up and I'm going to go ahead like the answer. VLJ does make a credibility finding the LJ in this case noted a couple of things one of which. Was not necessarily that she was lying but that she said she hadn't had any benefit any improvement since this December of 2000 I think of just 2004 onward. And what the LJ found was that that was inconsistent with the dr. Matrowa's treatment notes which showed ups and downs for a period and then really. The improvement with medication with consistent treatment and I would say that it is is a good thing obviously that miss Brian is is connected with treatment and that it seems like from dr. Dmitri of Dmitrova's records that that treatment is is helping her later rating rankings on those on these issues are better than her early. And so well and that and that I raise it to to make that point that the LJ found miss Brian's statement that she hadn't had any improvement to be incredible and so in the LJ makes findings as the credibility. The LJ determines whether everything the out the claimant is saying is about the severity and the limiting effects are entirely credible so that that was one factor that the LJ pointed to. All right. Do you have anything further with other factors that you found incredible. I apologize your honor. I did want to make you were about to say something

. What did the a LJ say something about. The fact that there was a credibility problem with the with the plaintiff. You're under the LJ and I see my time is up and I'm going to go ahead like the answer. VLJ does make a credibility finding the LJ in this case noted a couple of things one of which. Was not necessarily that she was lying but that she said she hadn't had any benefit any improvement since this December of 2000 I think of just 2004 onward. And what the LJ found was that that was inconsistent with the dr. Matrowa's treatment notes which showed ups and downs for a period and then really. The improvement with medication with consistent treatment and I would say that it is is a good thing obviously that miss Brian is is connected with treatment and that it seems like from dr. Dmitri of Dmitrova's records that that treatment is is helping her later rating rankings on those on these issues are better than her early. And so well and that and that I raise it to to make that point that the LJ found miss Brian's statement that she hadn't had any improvement to be incredible and so in the LJ makes findings as the credibility. The LJ determines whether everything the out the claimant is saying is about the severity and the limiting effects are entirely credible so that that was one factor that the LJ pointed to. All right. Do you have anything further with other factors that you found incredible. I apologize your honor. I did want to make you were about to say something. I wanted to ask you a question. I did note or I would note there was an issue that the the LJ pointed out as far as alcohol use and I don't want to overstate that and I don't think this is a case where that really comes into play in terms of severity but it does well it may I shouldn't overstate that but the LJ did make a good note that miss Brian's testimony at the hearing was that she hadn't used any alcohol for several several years at the hearing point and the medical records from the VA and from I believe it's from the VA undermined that position so that was another factor that the LJ pointed to in making the credibility. Thank you. Sandra, please to hear from you in the bottle. Sandra, this is such a heavy presumption in favor of the LJ back finding in these cases and this one just has a large element of credibility and assessment. Well, and that's Brad. You know, you might want to encourage them to find jobs and to think of themselves as capable rather than as incapable. Now sometimes that's impossible because the the burdens and the the afflictions are just too great but in other situations you want to sometimes try to make a productive go on things and don't you change someone's self image when you ruin them. Well, it's a case by case assessment of every individual who files for benefits some people are able to move on and other people are not and in this case she was not able to move on. I wanted to point out that the five scale rating you were exactly correct. My moderate in Dr. Demetrova scale would equate to marked and that's significant because and that supported by her global assessment of functioning scores which the highest she found was 50. A 50 is a serious symptom suicidal ideation serious impairment and social occupational or school functioning no friends unable to keep a job. By 2008 the VA noted that it had gone down to 45 which is no friends again serious suicidal and so on. So Dr

. I wanted to ask you a question. I did note or I would note there was an issue that the the LJ pointed out as far as alcohol use and I don't want to overstate that and I don't think this is a case where that really comes into play in terms of severity but it does well it may I shouldn't overstate that but the LJ did make a good note that miss Brian's testimony at the hearing was that she hadn't used any alcohol for several several years at the hearing point and the medical records from the VA and from I believe it's from the VA undermined that position so that was another factor that the LJ pointed to in making the credibility. Thank you. Sandra, please to hear from you in the bottle. Sandra, this is such a heavy presumption in favor of the LJ back finding in these cases and this one just has a large element of credibility and assessment. Well, and that's Brad. You know, you might want to encourage them to find jobs and to think of themselves as capable rather than as incapable. Now sometimes that's impossible because the the burdens and the the afflictions are just too great but in other situations you want to sometimes try to make a productive go on things and don't you change someone's self image when you ruin them. Well, it's a case by case assessment of every individual who files for benefits some people are able to move on and other people are not and in this case she was not able to move on. I wanted to point out that the five scale rating you were exactly correct. My moderate in Dr. Demetrova scale would equate to marked and that's significant because and that supported by her global assessment of functioning scores which the highest she found was 50. A 50 is a serious symptom suicidal ideation serious impairment and social occupational or school functioning no friends unable to keep a job. By 2008 the VA noted that it had gone down to 45 which is no friends again serious suicidal and so on. So Dr. Demetrova's findings I believe were misconstrued and they know it's not sure role to re-way the evidence but she misconstrued them moderate as saying that they were meaning that moderate in the measure of the commissioner rather than marked. The commissioner has a standard of marked we do not define mark by specific number of daily activities daily living in which your functioning is impaired and so on. You may have a marked limitation when several activities or functions are impaired or even when only one is impaired you need not be totally precluded from performing an activity to have a marked limitation as long as the degree of limitations seriously interferes with your ability to function independently appropriately and effectively. The term marked does not imply that you must be confined to bed hospitalized during a nursing home. What about the fact that in more recent notes though there was no dispute about the ultimate conclusions of the doctor award that your client symptoms were minimal and or none. There's no debating that no. But if there's a conflict in the evidence that just Wilkinson's point how are we now re-way that evidence and overturn the ALJ on that conflict. True except in you're not supposed to re-way the conflicting evidence but in this case the evidence was not complete because I would say that the vast majority of Dr. D. Matrovo was as we discussed that the moderate probably equated to marked although we can't know for sure although that's what the district court they were trying to do in equivalent so you have all these VA records. We know she had a 30% disability rating for severe depression the impairment the ALJ never discussed in 2007. Then she had a 2008 rating of 40% for bipolar disorder under the VA formula that means she was 60% totally 60% disabled. Those records were ongoing at the same time as the period of time after the alleged onset date they were at the very same time and the records from the VA in 2008 showed that she was having a decline in her condition because of her. Yeah, the 45. The course of treatments represent all kinds of up and downs and their adjustments of medication

. Demetrova's findings I believe were misconstrued and they know it's not sure role to re-way the evidence but she misconstrued them moderate as saying that they were meaning that moderate in the measure of the commissioner rather than marked. The commissioner has a standard of marked we do not define mark by specific number of daily activities daily living in which your functioning is impaired and so on. You may have a marked limitation when several activities or functions are impaired or even when only one is impaired you need not be totally precluded from performing an activity to have a marked limitation as long as the degree of limitations seriously interferes with your ability to function independently appropriately and effectively. The term marked does not imply that you must be confined to bed hospitalized during a nursing home. What about the fact that in more recent notes though there was no dispute about the ultimate conclusions of the doctor award that your client symptoms were minimal and or none. There's no debating that no. But if there's a conflict in the evidence that just Wilkinson's point how are we now re-way that evidence and overturn the ALJ on that conflict. True except in you're not supposed to re-way the conflicting evidence but in this case the evidence was not complete because I would say that the vast majority of Dr. D. Matrovo was as we discussed that the moderate probably equated to marked although we can't know for sure although that's what the district court they were trying to do in equivalent so you have all these VA records. We know she had a 30% disability rating for severe depression the impairment the ALJ never discussed in 2007. Then she had a 2008 rating of 40% for bipolar disorder under the VA formula that means she was 60% totally 60% disabled. Those records were ongoing at the same time as the period of time after the alleged onset date they were at the very same time and the records from the VA in 2008 showed that she was having a decline in her condition because of her. Yeah, the 45. The course of treatments represent all kinds of up and downs and their adjustments of medication. Yeah, their peaks and valleys and yes but at no time your honor was she ever functioning normally even though she may have had some improvements. What about the periods of improvement some of which have been quite recent. She had some periods of improvement but that's relative to the overall picture. That's not improvement as to say now she is normal and doing great. I mean that's where your opposing counsel said that is taken into account when assessing residual functional progressive. Someone may not be an optimal shape but he or she can do some. But they still have to be able to do some work and that was a fine. I do not believe that the AILJ findings were supported by substantial evidence in regard to finding that she only had moderate. I believe the evidence overwhelmingly shows that she had marked limitations. A lot of times we listen to cases and say maybe if this were the first instance we would have ruled in your favor. But that standard of review is a hard one to overcome. I do know that you're on her but the missing evidence is the key here because the AILJ made factual findings that were not correct. This court's duty is to review the factual findings and in reviewing those factual findings see whether the AILJ was pretty careful. Well her findings were incorrect. She said that the

. Yeah, their peaks and valleys and yes but at no time your honor was she ever functioning normally even though she may have had some improvements. What about the periods of improvement some of which have been quite recent. She had some periods of improvement but that's relative to the overall picture. That's not improvement as to say now she is normal and doing great. I mean that's where your opposing counsel said that is taken into account when assessing residual functional progressive. Someone may not be an optimal shape but he or she can do some. But they still have to be able to do some work and that was a fine. I do not believe that the AILJ findings were supported by substantial evidence in regard to finding that she only had moderate. I believe the evidence overwhelmingly shows that she had marked limitations. A lot of times we listen to cases and say maybe if this were the first instance we would have ruled in your favor. But that standard of review is a hard one to overcome. I do know that you're on her but the missing evidence is the key here because the AILJ made factual findings that were not correct. This court's duty is to review the factual findings and in reviewing those factual findings see whether the AILJ was pretty careful. Well her findings were incorrect. She said that the. Allude to the care that the AILJ. Yes she did your honor however the AILJ said that her 30% VA disability was for PTSD and was not. She didn't mention them. These are long and complicated medical records. Yes sure. There's always additional evidence. But there was a specter here your honor of those missing records with those repeated inpatient hospitalizations and all those things that from the VA they were hovering in the background they should have been located. Thank you so much. Thank you. Will a Jiren court come down to the council? This office was done during the folks of Marmor at 930. God's season at the state.

Brian V. Coveon. May it please the court. My name is Marsha Ellen Anderson. I represent the appellant Sharon Faye Bryant, Desert Storm veteran, and her appeal of a denial of social security disability benefits. The standard of review in this case is whether substantial evidence supports the AELJ's decision, and whether the correct legal standards were applied. In this case, the AELJ committed three primary errors, which then led to other errors, such that the evidence upon which the AELJ based her decision was not substantial. And the court below found the errors to all be harmless with the exception of one, which they did not say whether or not it was harmless. But the question becomes how many errors can be in a case before a cease being harmless. The primary one in this case was the failure by the AELJ to develop a medical record and obtain the VA records for this claimant, when there was evidence in the evidence before the judge that there were evidence records at the VA, which would have been material to the case. The second thing, the AELJ failed to consider at all the impairment of severe depression, which was actually the primary impairment, and the basis for one of her VA disability ratings. And thirdly, the AELJ had the AELJ obtain that missing evidence, which was referred to throughout the evidence before her. There would have been enough evidence for a finding of repeated episodes of decompensation, which would have enabled the claimant to be found disabled. Now, how could that be the case if these prior episodes were all occurred prior to the onset date in this petition? We can't consider that. Oh, yes, you can, Your Honor. Tell me why. The duty of the commissioner is to fully develop the medical evidence. And the regulations state that this commissioner is supposed to go back at least 12 months prior to the alleged onset date, and even further, if there is evidence suggesting that it would be necessary to go back further. In this case, the treating physician psychiatrist and one of the VA doctors that Miss Bryant saw in 2008 referenced numerous hospitalizations for mental impairments, and she actually had three attempted suicides. She had 10 inpatient hospitalizations that were noted by the VA doctor. And all of this would have been relevant to her current condition when she applied for disability benefits. It was all prior to onset. Not all. She did have one hospitalization when she was feeling suicidal in 2007. But that just, again, triggered that need to go back and look and see when these hospitalizations actually took place. We don't know how remote and timely they were. They could have been as recently as 2004 or a little bit before that. What is your burden? My burden? The claimant's burden. Okay. In the social security sequential analysis, the claimant has the burden that steps one through four to prove disability. And then the burden shifts to the commissioner to find jobs that the claimant is still able to do. Right. But I'm asking with this with regard to the specific prior incidents. The claimant's burden is to provide evidence supporting disability. However, it's not solely up to the claimant to provide the evidence. It's up the commissioner has an affirmed duty to develop that evidence. And that's in the regulations. Yes. And it's in the regulations. Yes, Your Honor. Because this court has found that it's not enough to rely on the claimant to provide the evidence. Sometimes they don't aren't able to provide it all. And if there is evidence that the commissioner is aware of, they have the duty to go and develop. Well, that evidence might have gone to this, you know, the severity of the claim. But again, I ask you again, how could evidence of decompensation prior to the onset they have established the disability claim here where you can't count those? Because it would just as in bird where the ALJ would not consider medical evidence after the date less ensured. And this court found that you needed to go back and provide retrospective consideration of that evidence because it related back to the original impairment of the post-traumatic stress disorder. In this case, the post-traumatic stress disorder began in Desert Storm. That was one of her impairments. She later developed the severe depression. And then the bipolar. And then she got EVA ratings posed to impairments. But it was incumbent upon the commissioner to look at that other earlier evidence because it established the beginning of her mental impairments all the way up to the present. And would have supported her credibility and her testimony at the hearing, which the ALJ for various reasons discounted. So you had to look back on having a little trouble with this because not because to establish disability back then, but to booster credibility with respect to disability now. Correct. And you're on a can I get a water please? You get worse on your table. We're equal opportunity water. Spencer. You take your time. Yes, Your Honor. Yes. Any time the commissioner is faced with evidence that could possibly indicate disability, there's the post to go and develop that evidence. Now I was not, I did not represent the client or the claimant at the administrative level. And there was some question at the hearing as to whether evidence was lost and is labeled. And I'm not really sure what happened to that evidence. But once it was before the ALJ, she knew that there were episodes of decommunization as evidence by the hospital repeated hospitalizations that were referenced in that evidence. In her decision, she made a factual finding that was not correct. She said the mispron had only one or two episodes of decommunization. And that right there was prejudicial to her case because had she found repeated, Ms. Bryant would have been found disabled under the effect of disorders under paragraph C at the very least. Regardless of the onset date of those earlier. Correct. Because those earlier episodes, they don't have to be right within the time period before the commissioner because it goes to the totality of the evidence. But that's different than saying that automatically they are counted as defensive decommunization. They are automatically counted under the commission of the subpoisoned disability for purposes of considering the severity of her. For both, your honor. And you find out in the regulation? Yes, it's in the regulations. Would you like me to cite to that? Please. Yes. I have a lot of papers here. Episodes of decommunization are described in appendix 1 to subpart P of part 404 listing of impairments under 12.00 which is mental disorders. And in that, it states that it actually defines episodes of decommunization. Exasperations are temporary increases in symptoms or signs accompanied by a loss of adaptive functioning as manifested by difficulties in performing activities of daily living, maintaining social relationships or maintaining concentration, persistence or pace. They may be demonstrated by an exacerbation exacerbation and symptoms or signs that would ordinarily require increased treatment or a less stressful situation. They can be inferred from records showing significant alteration and medication which was in this case or documentation of the need for a more highly structured psychological support system, e.g. hospitalizations, placement in a halfway house or a highly structured and directing household or other relevant information in the record about the existence of her. And then it goes on to explain the extended duration means three episodes within one year or an average of one every four months each lasting for at least two weeks. This evidence was critical because the reason why the alleged onset date was 2006 was that was a date she absolutely could no longer continue to work. And if you look at her work history after she got out of the service she had very sporadic work history from 94 up until 2006 each job lasted only a few months. She was fired from virtually all of them because she could not maintain but not be on the job. And so and those VA records which were ongoing while during the period of time that she alleged disability starting in 2006 would have had relevant relevance of these episodes of the conversation and seeing how far back they go and that would have supported her current status of disability. So you're saying that I'm asking you. Okay so your question is do those episodes of decommensations all have to be after her alleged onset date. Well that was the first question that the question to do is asked you and you said the answer was no. And then you relied on that regulation and what it's not correct me what part of that regulation you relying on. Right correct. I think the simplest answer would be to say that in order to determine disability simply based on episodes of the compensation and nothing else. Then yes I would say they would have to be after her alleged onset date of 2006. However as probative evidence of her condition which began in 1989 and simply moved forward and never lessened and never went away they don't have to be within. And we're as authority for that because that you just told us the regulation that you read us doesn't support that it only talks about. It talks about what has. There may be a provision. Because well your honor when you look at the listing for effective disorders which was the. The severe depression was not mentioned or considered or named at all in the decision. You would have to have either. Four of the a part a criteria. Plus two of the B or only the C. Now under that it would be medically documented history of now here is where this. Medically documented history of a chronic effective disorder of at least two years duration. That has caused more than a minimal limitation of ability to do basic work activities with symptoms or signs currently attenuated by medication or so. So go go psychosocial support. And one of the following repeated episodes of the conversation each of extended duration. Now I suppose there is a question as to whether those repeated episodes have to be within that time period after the alleged onset date because it actually says that the disorder. The effective disorder has to have lasted at least two years and here it clearly has. And it continued to the present. Right into her period after her alleged onset. So so to revive the answer I would say that those repeated episodes of the conversation do not have to be. After the alleged onset date as long as they are part of that chronic effective disorder of at least two years duration which she clearly had. I wanted to mention that. The ALJ had several factual errors in her decision that affected the entire outcome. Of that decision and and that that was not correct under I'm sorry under this court's own cases in my and my maestro. And maestro the apple in 2001. This court said that under the social security act a reviewing court must uphold the factual findings of the secretary if they are supported by substantial evidence and were reached through application of the correct legal standard. So in this case she had several findings that were not correct factually and that would have influenced the outcome of the decision and so that her decision was not based upon substantial evidence. And I also wanted to mention that the fact that the the consultative examination report of Dr. Harkani was not considered also adversely affected I'm sorry I'm out of time. Your Honor. I can finish because that report contained an assessment of activities of daily living which is a functional assessment that the agency wants to have in these cases. And in fact the agency paid for that examination. But the consultative examiner did not mention it or refer to it in any way and yet in another part of her decision she discounted the treating psychiatrist reports an opinion that the claim it was not working because of her mental impairments by saying it was not a functional assessment of her abilities. Thank you. Thank you. Thank you. Please the court. My name is David mervis and I'm here on behalf of the acting commissioner of social security and I'd argue I'd respectfully request this court affirm the decision of the district court. And find the substantial evidence did in fact support the final decision of the commissioner and there are three reasons there's three things worthy of discussion but I want to start with what you this court was discussing as far as the episodes of decomposition. As your Honor Judge Diaz pointed out there is a question here there are references in the record to hospitalizations that occurred prior to Ms. Bryan so let you don't say. And Ms. Bryan has contended that those episodes of if excuse me I shouldn't categorize them as episodes of the conversation they the references to prior hospitalizations. Now if those prior hospitalizations were in fact episodes of the compensation that still would not satisfy the listings because the listings are concerned with what Ms. Bryan's condition is from her alleged onset date for. Who would they be relevant. They could be I would say your honor that they would be relevant they could be relevant in this case the district court pointed out that they would be less relevance if they were remote in time. Who do we know that well I would say your honor to that that wasn't I would submit our total excuse me idle speculation on the part of the district court we don't know the exact date but what we do know and part of that reason your honor is that Ms. Bryan though represented at all points by council so hasn't produced any of these records but I would say the reason that we know that they were at least at some remove from the alleged onset is because what Ms. Bryan herself acknowledges it points out in her brief. Is that the district court excuse me I should say the ALJ had before her some 40 pages of treatment records that extended prior to her Ms. Bryan's alleged onset date her alleged onset date was in June of 2006 her application date was in December six months later so there is as Ms. Bryan has pointed out in her brief. Treatment records they go back as far as December of 2004 and in December of 2004 and that's at the page 325 of the administrative record and what that treatment note discusses is past hospitalizations so there is evidence there's suggestion that there were past hospitalizations the commissioner doesn't dispute that but they were at least two years prior to Ms. Bryan's application date and in fact at that point were at the end of the year. So what the ALJ had before her in this case was more than well 18 months of treatment records that extended prior to her Ms. Bryan's alleged onset date and in fact two years before her application date so commissioners position is that although the commissioner does have a duty the ALJ has a duty to develop the record that was that was that was not an application of that duty in this case there were records that went well beyond or well before Ms. Bryan's application date. It was the year but I don't understand where we're picking this line. Well, Your Honor, the regulations do discuss they don't it's not it's not an automatic cutoff but the regulations say that what the ALJ's duty this is 4 or 4 or 512 D and 416 912 corresponding one for title 16 they speak of developing the record for 12 months prior to the trial date. So the ALJ has a claimant's application however there are caveats unless the claimant indicates that his or her disability began less than 12 months before the application and that's what we have in this case or as a general overall matter in terms of the listed impairments why did you come to the conclusion ultimately that they that they were only moderate in severity. What was what was crucial in that determination because if you if you if she qualifies under a listed impairment that's it that's correct and you don't get into step five and that's correct whether she can proceed whether she can hold other jobs and whether they're jobs in the economy if you you can wrap it up at step three and maybe you're due the benefit of the doubt because whether something is of moderate severity or mark severity is probably substantial part of evidentiary question the ALJ lesson to the evidence on it but why wouldn't she qualify under a marked severity standard given the fact that she can't hold down a job for more than a very short period of time other than her family she has a real version of being around people and people made her paranoid and this invariable distrust and fear really you read the right word. So I think this is very will fear of other people that makes it very difficult for her to hold down a job for any more than several months at a time and what so what makes this I realize it's an evidentiary question and deferred the ALJ for that reason and also the ALJ deal with this problem day in and day out and that their familiarity is more than that. So I think it's very likely to ensure consistency of result than us sort of taking on a single appeal on an episodic basis and say well this is person is deserving because we have to consider it in conjunction with many many other cases and making sure that there's a basic consistency along the line but why is this woman's impairment. Only only moderate and just put it in layman's terms she seemed in pretty bad shape. Well you're right I'd respond in the following way certainly this as you're on a point out there's there's an evidentiary question and the ALJ reviewed the evidence of record but what I would say specifically is that the ALJ cited in what the district court said was an especially exhaustive and thoughtful review. Of the treatment notes from Dr. Demetrova I don't know if I'm pronouncing that right. Well let's go to this treatment notes because that was the question of telling what judge Wilkinson said because in his notes he also talks about moderate but there are five categories there. There's none minimal mild moderate severe so moderate is the second highest whereas in the ALJ standard there are only four categories. None minimal none I'm sorry none mild moderate marked and extreme so moderate's in a different place in the ALJ standard so I'm not sure you can since his it was the second highest in his in the middle in hers the word moderate that is true as far as the word moderate I think you're on this point that is certainly true. Well you just started out saying that you lied on what the doctor said well I think that's I think that I would stand by that you're on her for the following reason there are occasional moderate rankings or ratings or however you'd like to put that in in Dr. Demetrova's treatment. Which which according to him is the second highest that's correct second most severe that's correct although I would say there's no translation between what Dr. Demetrova's considers moderate and what the. Commissioner considers moderate the ALJ is tasked with assessing the medical records and making a determination as to what that means it's not a because the term as your point you know points out because the scale is different there's not an easy comparison between the two and to say that this is moderate but that's the second highest so that necessarily means marked it would would not be I would say the appropriate translation but I would say that what you also Dr. Demetrova's. There were some moderate rank ratings there were far more minimal mild and none and so Dr. Demetrova well I should say Ms. Bryant her obligation her burden was to establish that she had these limitations that they persisted for 12 months and that they were of that degree of severity and in this case what you have is is treatment records that as the ALJ pointed out go up and they're show up and downs ups and downs. However there are far more none mild and minimal than there are moderates and in fact after December of 07 from the to the ratings in March of February of 2008 at administrator record 393 and the ratings at July of 2008 administrative record 401 there was simply mild depressive and none on everything else and so the commissioner takes the. The point the court is making there were certainly limitations and the ALJ accounted for those limitations I think it's important to note that what the ALJ does and did in this case is assess the medical records and then craft or make a finding as to a residual functional capacity based on those limitations so as as Judge Wilkinson you're on a pointed out there were limitations there were issues with dealing with other people and that's precisely why the ALJ in finding her. The ALJ was a residual functional capacity as she did limited her to occasional contact with co workers what the ALJ noted and and excuse me in the general public what the ALJ described as essentially isolated work with only occasional supervision other limitations as well but I think it's important to point out that there are it's not a simple off on switch work or not work there's work at with this specific residual functional capacity taking into account mis Bryant specific. In this case there's substantial. The last thing that a large part of her medical history is just irrelevant because it's obsolete I mean because it's still no no I wouldn't I wouldn't get a rise that that way is your general referring to to the hospitalizations that may have occurred before her alleged onset date or if I misunderstood I apologize. Well the the four diagnostic forms that doctor Srementrava completed in 05 and the 9 and 06 numerous psychiatric evaluations and she's under continuing treatment by the was under continuing treatment she's got huge number of medications. The Baltimore veterans affairs center has her under medication I guess because the bipolar disorder and the post traumatic stress disorder in the borderline personality disorder all I guess part of it arose from her service in Iraq. And you know that's that's sort of beyond the record I'm not certain that may be but that wasn't specifically it may be. And then what about the she had to be removed from an abusive marriage by her adult son and she was depression to the point of being suicidal and she there were two attempts to hang herself and one attempts one attempt to drown herself and you know it just gets to the point we and we're saying that all of these things are simply moderate well you're on I think I mean what I mean is it true that you made two attempts to hang herself and one attempt to drown herself. The references that she had to be removed from an abusive marriage of 17 years by her adult son that certainly the record it establishes that there were that the marriage was an abusive relationship and there was one suicide there were discussions comments suicidal comments in July of 2006 and that's during the period that the ALJ specifically noted their reference. The specific she led to his own page five of her brief that they were she made two attempts to hang herself and one attempt to drown herself and that she was hospitalized by Dr. Demitravo because of the attempt to commit suicide by drowning herself. That was prior to her alleged onset date to the extent prior to what prior it's uncertain you're on a prior to December of 2004 at least which is you say the onset date. No that's even earlier the onset date that was alleged was June of 2006 as was Brian was of course free to to alleged an onset date that was earlier but that's not what she did. I mean or not all these problems part of the continuum I mean can we really sort of chop them up into little time segments or. Well you're right I think that sort of I think that does get to a point that I believe Judge Diaz pointed out in to opposing council that there's a different issue there's there's weather these things count as specific check boxes on the listings in that form. And then there is a question of general severity and so it's the severity point that I'm because I don't have I restrict we restricted in our consultation of the evidence in terms of the degree of severity no you're on a but I would say that the evidence that the a LJ had before her that ran during the relevant period during the alleged onset date through the a LJ decision. I think that's a very different picture than the one that you're on this point why why do you say I've mentioned some factors you give me concerned about her being in a state of mark disability rather than simply moderate severity and why do you say it's all just moderate. Well again you're on our I'd point to the a LJ assessment of course the state agency consultants who reviewed the records that existed at that time that would be doctor. And Dr. Peterson and Dr. Sokas both reviewed they did conducted their reviews at different times but the records that were available to them at those that point in time in March of 2007 and June of 2007 and they both concluded that Ms. Brian had moderate limitations and not marked limitations. You're on are certainly correct that there were issues in this case as I said that there were limitations and that Ms. Brian suffered from. Well I say but my problem is I don't have a sufficient universe of these cases and a lot of the some of the things that appointed to are just dressingly very commonplace among the population. And so you don't you don't want the award of benefits to be random or capricious and the administrative process is probably the best hedge against that. So I understand a substantial evidence question I understand the expertise question I understand the consistency thing and all of those are advantages that the administrative process brings to the determination and I understand the importance of the process. I grant you those but you know there's another part of me just as a lay person which in a way I am here because it's a heavily medical medical case that just seems to me that there are really hard time getting on with life. And I certainly don't want to miss a lot of which really isn't isn't her fault you know you can't know and you're not doing that but these these things these situations arise from people who find themselves sometimes caught and you know who served the country in the military or find themselves caught in very difficult marriage situations and not their fault. And you know they seem like a small case but it's everything to the litigants and I'm just torn by it because I think she has a hard time getting on. I certainly share on this concern I don't mean to diminish or minimize her her issues and her limitations and certainly there's no allegation that she is able to function at full at full level and that's why the residual functional capacity assessment that the LJ does that the LJ finds does include limitations and if we don't dispute the fact that there were three suicide attempts. You're on right I do dispute that in the during the drowning. You know I believe there were references to prior suicide attempts. That's why I tried. Well that was I believe you're on her in there was one suicide comments I believe in July of 2006. I believe there were also references prior to that point but from the period certainly from her alleged onset date on. There was evidence of only one hospitalization and that in fact goes back further back to December of 2004 there's no evidence that I'm more of of a of additional. The LJ make of findings one way or the other on this to the suicide attempt. The LJ noted the July 2006 hospitalization for suicide. That's that's my understanding or is that in July. Probably instance threats for attempts. My understanding is in July 2006 there were suicidal threats. I don't believe there were pro there were suicidal attempts during the period between 2004 December 2004 all the way through 2000 and. But is there a question of in your view is there a question of lingering here that that the. A lot of times one advantage and fact finder has is an a LJ as you hear the actual plaintiff and you can determine sometimes whether things are genuine or whether somebody's. Exaggerating them for purposes of the hearing and so demeanor evidence has a place a big part in this in the a LJ's assessment of exaggeration. What did the a LJ say something about. The fact that there was a credibility problem with the with the plaintiff. You're under the LJ and I see my time is up and I'm going to go ahead like the answer. VLJ does make a credibility finding the LJ in this case noted a couple of things one of which. Was not necessarily that she was lying but that she said she hadn't had any benefit any improvement since this December of 2000 I think of just 2004 onward. And what the LJ found was that that was inconsistent with the dr. Matrowa's treatment notes which showed ups and downs for a period and then really. The improvement with medication with consistent treatment and I would say that it is is a good thing obviously that miss Brian is is connected with treatment and that it seems like from dr. Dmitri of Dmitrova's records that that treatment is is helping her later rating rankings on those on these issues are better than her early. And so well and that and that I raise it to to make that point that the LJ found miss Brian's statement that she hadn't had any improvement to be incredible and so in the LJ makes findings as the credibility. The LJ determines whether everything the out the claimant is saying is about the severity and the limiting effects are entirely credible so that that was one factor that the LJ pointed to. All right. Do you have anything further with other factors that you found incredible. I apologize your honor. I did want to make you were about to say something. I wanted to ask you a question. I did note or I would note there was an issue that the the LJ pointed out as far as alcohol use and I don't want to overstate that and I don't think this is a case where that really comes into play in terms of severity but it does well it may I shouldn't overstate that but the LJ did make a good note that miss Brian's testimony at the hearing was that she hadn't used any alcohol for several several years at the hearing point and the medical records from the VA and from I believe it's from the VA undermined that position so that was another factor that the LJ pointed to in making the credibility. Thank you. Sandra, please to hear from you in the bottle. Sandra, this is such a heavy presumption in favor of the LJ back finding in these cases and this one just has a large element of credibility and assessment. Well, and that's Brad. You know, you might want to encourage them to find jobs and to think of themselves as capable rather than as incapable. Now sometimes that's impossible because the the burdens and the the afflictions are just too great but in other situations you want to sometimes try to make a productive go on things and don't you change someone's self image when you ruin them. Well, it's a case by case assessment of every individual who files for benefits some people are able to move on and other people are not and in this case she was not able to move on. I wanted to point out that the five scale rating you were exactly correct. My moderate in Dr. Demetrova scale would equate to marked and that's significant because and that supported by her global assessment of functioning scores which the highest she found was 50. A 50 is a serious symptom suicidal ideation serious impairment and social occupational or school functioning no friends unable to keep a job. By 2008 the VA noted that it had gone down to 45 which is no friends again serious suicidal and so on. So Dr. Demetrova's findings I believe were misconstrued and they know it's not sure role to re-way the evidence but she misconstrued them moderate as saying that they were meaning that moderate in the measure of the commissioner rather than marked. The commissioner has a standard of marked we do not define mark by specific number of daily activities daily living in which your functioning is impaired and so on. You may have a marked limitation when several activities or functions are impaired or even when only one is impaired you need not be totally precluded from performing an activity to have a marked limitation as long as the degree of limitations seriously interferes with your ability to function independently appropriately and effectively. The term marked does not imply that you must be confined to bed hospitalized during a nursing home. What about the fact that in more recent notes though there was no dispute about the ultimate conclusions of the doctor award that your client symptoms were minimal and or none. There's no debating that no. But if there's a conflict in the evidence that just Wilkinson's point how are we now re-way that evidence and overturn the ALJ on that conflict. True except in you're not supposed to re-way the conflicting evidence but in this case the evidence was not complete because I would say that the vast majority of Dr. D. Matrovo was as we discussed that the moderate probably equated to marked although we can't know for sure although that's what the district court they were trying to do in equivalent so you have all these VA records. We know she had a 30% disability rating for severe depression the impairment the ALJ never discussed in 2007. Then she had a 2008 rating of 40% for bipolar disorder under the VA formula that means she was 60% totally 60% disabled. Those records were ongoing at the same time as the period of time after the alleged onset date they were at the very same time and the records from the VA in 2008 showed that she was having a decline in her condition because of her. Yeah, the 45. The course of treatments represent all kinds of up and downs and their adjustments of medication. Yeah, their peaks and valleys and yes but at no time your honor was she ever functioning normally even though she may have had some improvements. What about the periods of improvement some of which have been quite recent. She had some periods of improvement but that's relative to the overall picture. That's not improvement as to say now she is normal and doing great. I mean that's where your opposing counsel said that is taken into account when assessing residual functional progressive. Someone may not be an optimal shape but he or she can do some. But they still have to be able to do some work and that was a fine. I do not believe that the AILJ findings were supported by substantial evidence in regard to finding that she only had moderate. I believe the evidence overwhelmingly shows that she had marked limitations. A lot of times we listen to cases and say maybe if this were the first instance we would have ruled in your favor. But that standard of review is a hard one to overcome. I do know that you're on her but the missing evidence is the key here because the AILJ made factual findings that were not correct. This court's duty is to review the factual findings and in reviewing those factual findings see whether the AILJ was pretty careful. Well her findings were incorrect. She said that the. Allude to the care that the AILJ. Yes she did your honor however the AILJ said that her 30% VA disability was for PTSD and was not. She didn't mention them. These are long and complicated medical records. Yes sure. There's always additional evidence. But there was a specter here your honor of those missing records with those repeated inpatient hospitalizations and all those things that from the VA they were hovering in the background they should have been located. Thank you so much. Thank you. Will a Jiren court come down to the council? This office was done during the folks of Marmor at 930. God's season at the state