honour's i'm james tree i'm representing miss foote today when detective mullen knocked on misfits door he told her that he had been investigating ring of drug dealers and that her dennehy had been stolen and asked if he could come in and help her as he came into the home in one hundred percent of the interview that he had with mr foote happened inside of her home with a secret camera recording miss foote was alarmed and  now the record is ask us to address the wailing case and whether or not that how that brings up the issues of harmless error so i'd like to do that at this time  en is similar to foot but foot is much more egregious in the fact pattern in whalen the interview detective mukkamala knocked on the door and said would you please come outside to my pick up whale and then went out to the pickup and forty five minutes of the one hour interview was done outside of the pick up miss weyland had a cell phone that she thought might have a picture of the person that had stolen her identity  supposedly still in her identity and invited detective willing to come in whalen or detective mcmullan to come into the home and so they went and entered into the home and the women court very clearly stated that under those circumstances under those particular facts it would not be clearly established to a law enforcement officer that he would have to retreat from that invitation like i maybe perhaps read while in a little differently on that point because you're making a distinction i first of all i think i certainly want to stand by the fact that such things go on in a case like this but then whalen came down and you're making a distinction between going out to the car and then eventually coming back forty five minutes later but in the weyland decision the court said the fourth amendment there either in or out right so we do agree that the intrusion into the home by a lot of the fourth amendment we agree that with whalen that any ruse to get inside the home negates consented here's the piers the problem i think all of us are reacting to ordinarily things that can be observed from a public place do not violate the fourth amendment you can stand you know a police officer can stand on the street corner here and watch people drive too fast or have a drug transaction or whatever and there's no fourth amendment violation to observe from a public place there's no search guess so so here here's what i would appreciate if you're looking for if we were simply to ignore everything that happened inside the home why wouldn't we still have to uphold what the agency has done because at least as i read the g s opinion the bulk of it at the beginning is all about lack of full credibility based on the absence of medical records to support the claimed level of pain going through each thing saying well as so the left hand there is this report and it's inconsistent with their testimony of back pain this is inconsistent so that's the bulk of the credibility finding why can't we just ignore what was in the house and determine that any error was h law judge has improperly evaluated the medical evidence but if we disagree with you about that and i know you know concede if we disagree with you about that then can't we simply bypass th fourth amendment issue no i don't believe so it's to intertwine because the administrative law judge said that she considered the c d i you investigation and it says in the objective evidence she said she said they used the here's here's the statement about how hard driving was and yet none of these doctors said thus and such the clinical findings don't show an inability to hold the book as she claimed and so on and so forth they're just she just looking at the testimony versus the medical records it seemed to me that's how i read it and if that's the case i just i just items relied on and then the c d r you report why isn't that substantial evidence that supports the negative track credibility determination well the there's several reasons ok and they go to the fact that a lot of what the administration blah judge said was based upon the information that was obtained inside the home from detective  example her differences between what what the doctors said that miss foot could do and what the judge thought miss foot could do the only evidence that she thought she could drive for we got a negative credibility determination it seems there's a bunch of reasons that the day has sided you know for that determination and i'm trying to figure out why we can't look at the and you're familiar with the reports indicating credibility determination and not rely on the c d i you investigation at hall that's my problem yes the reason is because the harmless air rule as set out by the ninth circuit and stay out case is that  unless the court can cough and i think lou that no other reasonable a l j would reach a different conclusion the error is not harmless so is that what you meant when you said it's too intertwined you think we just can't suss this out in this particular case yeah there's going to be a reasonable a l j that would come up with a differen it doesn't matter if the evidence of the cd is excluded or not excluded other than she as as detective said she's a kind lady and she does want me to impress upon the court that she doesn't want this to happen to anybody else and without exclusion i'm afraid this will continue to happen why wouldn't i think waylan take i would hope the government would have a large ear after whalen to realize that it's unconstitutional is that until this rule was announced until whalen was announced you can't really say this search this particular search in your client's case was conducted in bad faith so it seems to me i'm really struggling with which is your argument there's that concept there's that exclusionary rule which it seems to me is tough to invoke here and then there's your to use your word you said this evidence is too intertwined and i tend to agree with judge mckeown but i want to give you a chance to correct me if i'm wrong about you seem to suggest that there was a remain for immediate word of benefits ok second thing that we're asking for is that it be found that this was a violation of her fourth amendment rights the entry into the home got that second that any ruse or third any ruse to get into the home is video it's consent but this particular route did the energy theft ruse is so destructive and it creates such emotional distress to people as is confirmed by the department of justice in their study that we've put in our brief right where seventeen million americans have been there done that have been take been stolen each year this was a deliberate attempt we grieve with you on the count your time's ticking if we agree with you on the constitutional violation then you're asking because in a civil case it's got to be agreed just or deliberate now in lopez they said it doesn't have to necessarily be clearly established go ahead and let this rodriguez it says that it has to be a deliberate violations for the government to do this so i don't know how we would know it was not you know because this wasn't something was made up on the fly this is done and and in the winning case it says seventy to eighty percent of the time  intentional but it doesn't show that it's a deliberate violation that's the difference i mean certainly the conduct is intentional but how can people know that it violates the law until they've been told that it  another question because you asked for the video to be made part of the record which the court has granted them motion now but we won't have you back probably so would you give me a little advance warning she can't see there's no audio but she rejects the pin and she picks out her special pin she talked about she testified that she had to use a special pin to write but the administrative law judge rejected her inabilities to write based on the c d r you investigation the fact that she wrote seventy one words a third of those were three letters or less on this six page form that were given and so it shows that it shows her shock that and it shows that she got up and down her it's consistent with what her doctor said that she could do activities for fifteen to twenty minutes at a time it's consistent what she testified to that she can do activities for fifteen to twenty minutes at a time it's consistent with the fact that she can write for four sentences it's consistent with what dr schmidt her treating doctor of nineteen years said he he looked at the video and he said it doesn't change my opinion that she's permanently disabled there's thirteen medical opinions in a record one of them is from sol security zone dr and i think this is quite illuminating  is the timing of what happened here was that after the first hearing the appeals counsel says hey you need to get a consult the physical evaluation for this lady because at a nissho a single decision maker denied her usually a doctor but this court has said that that is no evidence when a single decision maker that the non medical person denied her interestingly in their record it shows that at reconsideration a non medical person wrote up the r f c gave it to  dr turner and it with a with a note that's in the record that said would you please sign this i prepared to r f c and dr turner just simply assigned it adopting to single decision maker so there's no medical opinion at the initial reconsideration so it wasn't may please the court jordan goddard appearing on behalf of the commissioner of social security good morning your honour's this case at its heart is about the credibility of ms foot's subjective complaints and the finding that those complaints were not reliable is supported by more left with this kettle of fish it does seem to me to be tough to know what exactly it scales you're well assuming for the purpose of argument that this court would apply the exclusion style formulation is probably the most difficult for the government to meet but we do meet it here ok that's exactly what i mean yeah let me run through some of the facts are just so many inconsistency as along with the lack of objective evidence  i said i was going to start with the inconsistency actually let me start with the objective evidence dr timothy misfit's owned for zaya trist said that he did extensive work up but could find no underlying objective basis for her pain  the nurse who worked with the neurosurgeon dr ward reviewed the objective medical evidence and said he could not or she could not correlate the kidney pain complaints to the objective evidence perhaps even more significantly in january two thousand and twelve at the hearing the the population in the u s for people in ms foot's age category and many of them have no symptoms at all he very clearly stated that any limitations that are assessed in these in this case do not stem from objective medical evidence but believing and with really the point you're making which is that the medical evidence dozens provides objective support for reports of pain and what do we do with that well i think if we look to see the comical case where we also have a  harmless error to kill ation the appropriate method in evaluating the harmfulness of an error like this is to basically cover up the evidence that came from that harmful error and ask what is the remaining evidence sufficient to horses miss foot consistently denied that she was doing any sort of work with when it came to caring for horses and while the c b r you report does confirm that that is not true her own medical records show that she goes in at one point for  back pain because she was at the me let me ask it this way forgive me for interrupting but your your point i think is maybe a good one is there anything anything in this that we get from the cd you report that we what wasn't already called into question by the medical records  i would say at least the extent of her driving might be might be illuminated a little bit more by her missions although there is evidence especially from was also evidence no firm from  statements from the neighbors saying that she regularly drives and they see her go in the investigators observations outside the home would still be permissible even after where i'm absolutely judge graber that there's no reason t would the remainder of the evidence be substantial or does it yeah on this particular act it doesn't hinge on that activity activity at all we have a very extensive record and a very long l j decision that notes for example the horses the issue of the horses the fact that she seeks medical treatment after for back pain after lifting a bale of hay which is just wil inconsistent with every claim she's made to the agency we also have the hiking evidence she testified multiple times that she used to love to hike but was incapable of doing any kind of hiking or camping anymore said that ever since her surgery in two thousand and four she was completely incapable of it yet in two thousand and eleven she told a mental health counselor that she'd spent a weekend in the mountains and gone for a mile long hike and it was difficult but she enjoyed it and she was planning to go hiking  should pain free she because she had represented that that that in fact after that fact in june two thousand and fifteen at the hearing she flat out deny that she did any kind of hiking so it's not a question of you know was she able to do it pain free but rathe reliability of her testimony when she repeatedly said i don't do this activity whatsoever she didn't say i i do it rarely and you know with pain and but i push through because i love it so much more to the negative side of absolutely you have to you have to look at you have to compare the complaint she's making with the the activities she's doing which the did appropriately and the complaints that she's consistently made from two thousand and seven through two thousand and fifteen are that she was extraordinarily limited and that she wasn't doing any of these activities like feeding horses or go and hiking and the record just squarely contradicts that so even if she you know was was reporting pain and doing this which by the way i would also point out that she was telling that to a mental health counselor then we also have the observations by the doctor tapes you mentioned before he goes so far as to raise questions of secondary gain in the lingering says that he really suspects that there might be a drug addiction driving this or medication addiction i should say to be clear notes a number of different inconsistency is during during his his interview with her for instance she claimed to be just in extraordinary pain throughout the  whole the whole interview yet when she got there she took her coat off without any sort of visible difficulty she put it back on without any sort of visible that difficulty she said that she would scream in pain if she was forced to write anything not kno know no no qualifier that if i had some sort of special pen it would be ok but i'll scream in pain if i have to to write anything and dr tave said she filled out all the stanford forbes so the record is actually right within consistencies to the point where we really don't need the c d r you report to have substantial evidence in the record that's just icing on the cake but i think it's important to note that you don't have to suss that out you don't have to try to figure out what the whether or not this this decision is supported by substantial evidence even when we don't consider that c d r you report because the exclusionary rule is really not appropriate here in light of whaling whaling makes two very important holdings both of which affect affect this case one more so than the other first of all under under walen under the reasoning of whaling it's pretty clear that we have a fourth amendment violation here i know that i briefed it differently but that was pre whalen but maybe more importantly to the outcome of this case we also have the qualified immunity analysis and the whaling court held that there was not sufficient notice that this kind of car that this kind of conduct was  was a violation of the fourth amendment such that any reasonable officer should know and as a result it would be inappropriate to apply exclusion the government is now on notice that going forward any any such violations th may be subject to exclusion but this all clearly a cure occurred before will and so the court does not have to exclude this evidence whatsoever and when we add in the c d r you investigation report when you add in the fact that she she told the investigator that she does all kinds of driving including driving to yakima which is about sixty miles from her home once or twice a month simply to save money on cigarettes  i don't know how you reconcile that with her repeated claims the agency that she was only capable of driving for about five miles total that even when she did that she was in bad shape the next day even after arrest all  day at the most recent hearing she described it as she could drive for about twenty minutes she also said that she could only sit in one position for about fifteen so i'm not sure how she could you know drive to ellensburg regularly to do or shopping as well as driving down to yakima on a regular basis to save money on cigarettes if the claim she was making about the degree of her pain were accurate so when we add in that c v r you investigation it just it just makes clear what what the evidence already supported that the subject of complaints that ms foote was making are just not consistent with the evidence they're inconsistent with other with their activities and there's a distinct lack of objective evidence to support the pain that she claimed whether you it to her spine or i mean it's really just not spinal pain that she was she was complaining of she complained of these all the hands she number of doctors essentially resorted to calling it fiber  even though it is undisputed or uncontested that she does not meet the diagnostic criteria for fibromyalgia three different doctor said that the jay made that finding and it has never been contested so that that illustrates that her it just been at a loss to come up with some sort of reasonable theory as to where all these mysterious pain complaints have come from dr tapes maybe gives us a you know gives us one theory that of possible medication addiction but beyond that we have a lot of doctors who have just kind of said in a conclusory fashion she says she's in a lot of pain and based on the amount of pain she's telling me i don't think she can work and those complaints  hudson pointed out during his testimony or speak to those opinions really are just a reflection of her subjective complaints and are only as valuable as the reliability of those complaints and here with the amount of evidence we have the the number of inconsistency that are pointed out by the decision it's hard for me to see how how they deal she does not meet the substantial evidence standard whether or not you consider the powerful evidence from the c b i you investigator because i'll just before i close i'll touch on the subject of that video that has been admitted into evidence i think you're going to find it's rather unremarkable and what you what the real evidence that is that is significant in the c d o you report is really her admissions about what she was doing those activities like driving and you know going to get cigarettes it's not so much that the detective was trying to play doctor and giving a sort of a covert examination and in her home video does not have audio because of state laws about audio recording so you're going to watch a thirty five minute video of someone sitting on her couch talking with no audio that's that's pretty much what you thousand years dr anderson for nine years these are long term treating physicians her x ray reported are seventy five sound she found she had severe degenerative disc disease at t sixty seven severe is the most that they're rated nine mild moderate and severe that's the most severe form of arthritis she has eight different levels in her spine that has arthritis she's had major surgery in her neck she's had three surgeries on her foot she's had surgery on her wrist for carpal tunnel syndrome this lady is not a milliner doc the detective mcmullin said that she was a kind person who cooperated who had no criminal history a d this is a red herring her doctors have viewed this video her doctors have treated her for over can combine for over twenty five years and if determined time and time again that she's disabled that if she had a job to go to she had missed work she needs to lie down today she's not completely bed bound she admits that her doctors and that that she could work part time she did work part time she worked for her church two hours a week cleaning the church with the help of her family she's a good person she didn't deserve this treatment she has objective evidence that supports her pain complaints