it please the court my name is a town castle ya niche i'm representing dawn from you and in this case from you and has been unable to perform any type of full time work since september of two thousand and seven when she was thirty five years march of two thousand and twelve her treating physician dr when opined that she that the combination of or impairments caused many significant functional limitations and after tea her fatigue and pain prevented her from performing any type of full time work activity even in a sedentary position but the l j rejected her opinion now what i want to focus on today is the issue when a person fibromyalgia how does a dail jane know how it limits them how do any of us know how it limits them and how does her doctor know how it limits her and what it always will boil down to is what does she have to say about the symptoms she's experiencing now a doctor can look at her can see her can test her can do the tender points which shows that which is confirmed and there's no question in this case that she's been diagnosed with fi ale jay found that that was a severe impairment but the with regard to how she is limited by it you need to ask the claimant well vermuelen described experiencing fatigue she described variable functionality where some days would be better than others and the more active she was the less active she would be the next day so if she couldn't sustain activity in this even bare bore this even happened with her last job she attempted a part time job that was only ten hours a week to five hour shifts a week and she couldn't even maintain that because there were days she couldn't show up for work she was in too much pain how  does the effect that it was found by the way that she failed to pursue several types of treatment that were recommended for her how does that fit in with the finding l j cannot reject a claim it's testimony based on their failure to comply with treatment recommendations without first considering their explanation for why they were not getting additional treatment the record here shows that she had tried many different medications and it had adverse side effects to virtually all of them there was one point where they found a medication that was actually effective that was working and pain decreased and then several months later she started having side effects so that as well that was the same balta so the record stores other there were other recommendations i think edge tonight was referring to from mulan in which she explains how she lost her medical insurance her medical issues they couldn't afford medical insurance and it limited her ability to obtain treatment from it for much of that not all but significan section periods of time throughout the period that's at issue here and so that inability to afford medical treatment is the reason that she could not follow through on all of those things but there's also evidence that she  attempted to that's the main that's the main evidence here is the she could not afford it and she couldn't afford to treatment now she also as far as exercise she attempted to exercise but in fact that was one of the things that was held against her she used to be a bodybuilder this woman was incredibly strong and she couldn't do that anymore had long since stopped that well she decided she would try to start doing that again she didn't get very far but the fact that she decided to try to like build up her strength again was actually held against her as an example of why she's not why she's not credible or why she you know her testimony should be dismissed i think the  made specific findings that her symptoms were not severe enough because to keep her for to motivate her to seek these other forms of treatment and that was one of his one of the  that affected her credibility all these different forms of treatment which she asked about and specifically declined to do with evidence that her symptoms weren't severe enough in his view  that's one of the things he found but he did not consider the fact that she couldn't afford the tree the additional additional types of mood galleries of treatment well some of them were better sleep  hygiene and relaxation those are not costly items are they well know but there's no evidence that she didn't try to sleep i mean we're not talking about a person that intentionally not sleeping  she was doing whatever she could to try to like function in her life fibromyalgia is not you know the thing that was not understood i think by the l j here is the  variability in the symptoms from day to day and and hour to hour and so it wasn't it wasn't like she couldn't do anything but there were a lot of things she could no longer do one of the things the judge held against or  held against her was that she and she reported to one psychologist that she would bike and walk while that was in the intent to exercise but there's no evidence in the record as to how often she did either of those things and actually the evidence that you do find about walking shows that she did much less walking than she ever used to but that was the only exercise she could do so do you think an ale could ever make an adverse actual evidence that supports their determination with well for example in this case she would go once a week to her son's sports baseball and football games and sit in the not in the bleachers you should bring your own chair because she couldn't handle sitting in the bleacher but she would go there to watch a sporting events if she were participating as she used to play softball she can't do that anymore if she were playing softball if she were doing physically active activities and doing them on a regular basis you'd have to have an investigator who had some information for every day because her claim here is that her strength was feria ball so i assume even if she had played softball she would say well the next day she would have to rest she didn't play softball though she couldn't play softball anymore and i think we were just exploring a hypothetical take for an a to have an adverse credibility determination it your view and it sounds like there would have to be someone watching her every day to make sure that she was sustaining the same level of activity every day but there's no evidence here that she's there's an assumption i think here among many ail js that the purpose of listening to a person's testimony about their and not just with fibromyalgia but about their various problems that they're having is to try to find something that detracts from the consistency of it it's a sort of a well there's this thing here like there's that one word it's his bike and then that's held against her when there's no evidence of how often she was actually doing that so i think what you would need to have is actual she's not lying is the thing she's telling the truth about what she how she's limited and if an elegy is going to assume that she's doing more than that there's got to be some evidence somewhere that actually shows that they did they're not he's assuming there's no justification for him to assume that she's lying when she describes the limitations that she has they're consistent with her diagnoses which are many they're consistent with her treatment they're consistent with her treating physicians opinion that she couldn't handle sedentary work so you know there's got to be evidence is that is the idea they all just got to base this decision on evidence not on some kind of assumption that i see the word bike in one report once and therefore that shows that she's not isn't p r t she claims to be other sources that is kind of the regulations yes and here's the thing with his opinion is that he had chiropractors use their own language and the he had noted in treatment notes and  in my believe in my reply brief the various treatments where he cited findings that support the his general idea but i don't think you know his opinion obviously is not have the same level of weight as dr when  if you don't have any more questions for me i would like to reserve some time for a bottle thank you thank you  for which the social security administration has ailed j s and that is to weigh the evidence and typically it does come down to evaluating a person's testimony a claimant's testimony about the extent of their symptoms and weighing and balancing the medical evidence now if it cannot be and i'm just going to start judging could do with your point it cannot be that every time a person claims fibromyalgia or has a diagnosis of viral they are automatically disabled and that is the end of the story we know that's not right so an ale j must be able to by pointing to evidence in the record make a finding and if that finding is the person is not disabled if the pointed to some evidence than that that has to stand or otherwise disability benefits would be available to everybody who claims they  the purpose is not as mr unit suggested to try to find something that detracts from the person's credibility and build out a decision on that they don't do that there are lots and lots of these cases many hundreds every j has on the order of five hundred a year and they are not all rejected in the l j is not sitting there trying to find some of the tracks from them in every case council just inject the question on that point what would you say are the chief pieces of evidence that the  in making in negative credibility is i think first your honor the activities that the l j cited and the activities are are granted susceptible to more than one interpretation but the activities that he cited and secondly which was also gotten to in the in the previous argument in the questioning the claims decision not to pursue various treatment modalities that were recommended and also because it's a it's a it's a formally separate issue in the way that we argued back and forth in the briefing but they're all related other medical pieces of medical evidence reports from other doctors that suggest that she is not as limited as she asserted at the at the hearing in her testimony and as dr and when suggested in march of two thousand and twelve there's there's three headings there as well which which of the other medical records are doctors statements do you think you know he he certainly relied on month dr schroeder said that she reported pain that is mild and said that she could stand or walk for six hours or more and that she in a work day and that she had no impairment quote unquote no impairment and walking very contrary to her claims and those a doctor and when he relied on the o j relied on another examining physician dr sapp who had examined mr mulan in september of eleven two thousand and eleven and also said that she  limitations no limitations in standing walking and sitting no limitations in her posture or environment and that she could lift up to fifty pounds that is a very very different report those are two very very different reports from examining physicians then the examination of dr and when so now we're down to what and there are others there's the state agency position i understand that state agency physicians are in general to be given less weight in the hierarchy but this is backed up by the reports of two examining physician three in fact because there was another one of the o j didn't rely on his similarly said she had no lifting limitations  so we're down to the purpose of a nail day in these proceedings and the purpose of the is when there's evidence that goes both ways and it seems to cut you know some evidence cuts in favor of the claim limitations and some evidence cuts against it the looked at the claimants testimony and looked at other factors that he considered regarding her activities and the treatment modalities and he came to a determination and adjudication of these hundreds and thousands of social security cases simply impossible the claim has to be falsifiable in some way and the trier of fact is in the best position to do that now is it is not a matter of the claimants character there was mention made earlier of all we find that you're lying no the word lying is not in the decision she was but it is a finding that you know the claims with regard to the issue of whether or not ms remulla reasons for not taking on taking making trials of different medications and so forth and the treatment modalities was considered it was considered that reasoning was considered the l j considered that at page two ninety three so that has been thought about address the a l j didn't agree with that to consider an argument is not to embrace the conclusion of the argument that the argue or would prefer it's been considered as judge agreed and also just common indicated there were other treatment modalities to there w like physical therapy that are not expensive and that don't have the potential side effects that the claimant feared from pneumatic new medications did the claimant ever give a reason in the record why she didn't try those other forms of treatment i don't think so but i i cannot say with certainty that she never said that in the record i don't want to put false statement her mouth i think not but but i'm open to correction on that point and finally i want to just touch on something that was not yet addressed in the argument but i think it's important and then i'll take any questions that the court may have and we have the case of bruce that this court decided in two thousand and twelve that says where the appeals council receives that evidence considers it makes it part of the record then the district court and then presumably this court of appeal will consider that to see whether or not that evidence deprives the ael jay's decision of substantial evidence support because that's that of course is the factual standard has to meet substantial evidence i would just say that in the light of the evidence that was submitted to the appeals counsel in this case still the decision had substantial evidence support because the brain m r i that was submitted the doctor said no abnormalities the spine m r i the doctor said  there were some degenerative changes this is a very common finding there may be a pinched nerve this could potentially cause pain and nerve numbness in the arms and hands the spinal cord looked fine so there is nothing that explains your leg symptoms and numb i think there's nothing new in the post hearing evidence that deprives decision of substantial evidence support can i answer any questions from the people seems clear in this case that the claimant h variable symptoms from day to day over quite a long period of time i had it seems to jump out from from the record so assuming that that led to inconsistent reporting of symptoms a claim it could be completely honest fairly disabled in the l a j might look at this inconsistent reporting and think i can't give this person any credibility because she says something different every time she talks to a doctor is that possible in this case because of the nature of her ailments are yes you're on and that is possible that is possible but and  that's a that's a problem frankly that's a problem with these fibromyalgia cases and it's a problem with all the cases where the kinds of impairments that a person has wax and wane and cause different symptoms over time but the l g has just put the task of resolving that as best they can and recall that the claim here is that ms vermaelen claims that she was disabled for the whole period from september two thousand and seven on all the way up through and presumably continuing that all the way up through the administrative decision in july of two thousand and thirteen including the times when she was mulling the lawn including the times when she was going to work twice a week stocking shelves a part time job but you know an activity that the a j cited as well seemingly not consistent with her level of limitation so these are things that it's problematic but the l g has to weigh them and do the best they could and  we would respectfully submit that the decision is supported by substantial evidence first let me focus on the two things that the a l j did not consider and did not discuss and that is fatigue and impaired concentration these are documented in the file well documented in the file and the l j did not state any reason it's any convincing any specific and convincing reason to reject her testimony about th experienced and about the impaired concentration an example of impaired concentration the best example comes from dr bao released psychological evaluation in october two thousand and eleven in which he didn't come up with any psychological diagnoses but he found that when he administered the trail making test part b she scored below the first percentile which is shows that she's got severely impaired concentration l j does not discuss this the l t does not include any limitation on concentration in his residual functional capacity assessment so in that regard the able j is r f c residual functional capacity assessment is not supported by substantial evidence because he gave no reason not to include limited in p any limitations for the impaired concentration he gave no convincing  including limitations related to the fatigue he gave no convincing reason for not including limitations relating to her right wrist numbness which is dominant which is documented throughout the file  fasciitis does not limit her dr sapp was an examining physician he doesn't seem to have examined tender points and doesn't seem to been knowledgeable about the you know he doesn't discuss the t concentration any of those problems which of the main problems that likewise did not discuss the state agency not examiners there non examiners they are just looking at the record and guessing and they didn't review the entire file and they didn't review their opinions are entitle less way because in part because they didn't review the entire file you made an argument that the l j failed to properly evaluate medical evidence from fifteen other medical professionals and there wasn't really too much explanation about this particular argument is it is the answer simply that all of it is contrary to the weight of the evidence in the case or is there something more that we should know about the other medical professionals well she's got so many different problems that she's seen a lot of different doctors they found a lot of different things wrong with her over time and the findings in all of those reports are consistent with her testimony about the problems she's having and they're reasonably consistent with dr winston opinion as well and so but the thing is it's a problem we we were often run into is none of those doctors were stating well i think she could only stand one hour sit one hour anything they didn't give opinions about functional limitations so we're left having a look at their findings and say well are there findings consistent with