going for the national board of medical examiners and i would like to reserve five minutes or rebuttal very well so go ahead thank you so much thank you and it's my st time was in ms well so crossed this case presenting them porton questions regarding the painting of the americans with disabilities act and who is disabled under the act in the context of standardized test administered to an individual for a licensing examination the issue of rights is frequently in litigation and so the outcome of this appeal is important not just for the parties here but for other parties as well a lower court ordered a preliminary injunction to jessica ramsey that her double testing time on step one of the licensing exam for doctors it also awarded her double testing time on every subsequent step exam even though she won't be taking at least one of those examinations for two years mr going what what is the standard every viewing standard here with respect to the what the district court to your new standard and performed diagnostic tests on this ramsey finding especially dr smith that her reading speed and efficiency and comprehension put her in a substantially limited category credit them against your experts who never even met her let alone performed any tests whatsoever how do we say that that's an abuse of discretion well it's an abuse of discretion and at a few levels your honor in the st place the application of the improper legal standard is by definition and an abuse of discretion here the judge never made a finding that she has to stand truly limited in her ability to read or concentrate compared to most people in the general population well you did because he indicated what the test is for disability as compared to the general population and then and then found it does he have to say oh by the way in finding that she meets the definition i want to note that it really is related to the general population and didn't doctors this percentile determination actually conclude that this had to do with belief at least in three categories that she was below the th percentile as compared to others and isn't that consideration consistent with how one a judges how a learning disability is had hard data what it adopted as being credible to conclude that it's that her circumstances are different than the general population when considering things like age education what and consistent with her performance on every other standardized test she's ever taken dr smith acknowledged that nowhere in this ramses twenty year history of taking standardized tests accurate dr ruppersberger didn't perform any diagnostic mr dr smiley performed no diagnostic testing the st person to diagnose her with dyslexia was dr smith none of the d under the d s m five diagnostic criteria so at the end of the day what you're left with is miss ramsay's performance three diagnostics of tests which conflict with a lifetime  x average or better than average performance on standardized tests including as well for academic performance across high school college and also while she's doing a lot of things experts really had an issue with with what he did that that's not correct your honor and there's this is an important distinction what they said was he administered the test that he administered were appropriate test didn't doubt that the results that he achieved were consistent with how mr ramsey performed none of our experts testified that the results were balloting credible and the district court contrary finding was clearly erroneous inconsistent what's what did your experts to in order to to help us determine that they were invalid or incredible all we have nothing that would cause us to doubt them other than the continued assertion that it's not like real world tests like the a c t or the m cat but those are not diagnostic tests since i mean if you're if your experts had diagnosed her had met with her had done testing that was totally inconsistent with what dr smith did that would be one thing but we don't have that we have them attempting to to critique without any st hand knowledge and then telling us how t know your honor thousands and thousands of people request accommodations every year on standardized tests if the proposition is that a standardized testing company has to personally evaluate every individual seeking commendations the process would run into a whole that's not realistic it's not how templated under the this is no different than any number of other cont those from reviewers for testing agencies who have not personally met with the candidate or conducted the requisite assessments for diagnosis and treatment now that's out of the regs so the regs obviously contemplate  looking at the conclusions of people who have personally seen a test taker as opposed to those who are fear eyes so i understand the predicament that you're reciting to us about the realistic possibility of trying to have personal contact with everyone who asks but everyone who asks doesn't last that is true your honor fortunately the fact is th all in the st place i don't believe those d are the regulations your honor shrink it from i believe their guidance statements made by the agency and the regulation and we also appointed the court to settlement agreement which the department of justice reached within our client which made clear we don't have to give precedence so the examinees professional that we have the right to review academic history and that compared to those who have not examined her well and a court can certainly make that determination i don't think that was a determination made by the court below your honor i mean i think they go ahead i'm sorry  to say at the end of the day we have to bury decisions out of the eastern district of pennsylvania we have just tells else decision in the bigger case and then we have to joiners decision in this case hope post a da amendments act both with individuals with this lexia diagnosed dyslexia both with hissed at extensive academic histories where would you not acknowledge that these cases are extremely fact they're not apples they they are credibly facts the sceptic your honor although i would submit that judge bibber are the bigger decision and this case are about as close factually as one  come with a qualification d d that mr bevere in fact presented a far more compelling case of being disabled and where at the end of the day the court in that case correctly said what we have to do is provide apply the standard substantially limited compared to most people in the general population in the court did that in that case saying it was an admittedly difficult thing but there you had a plaintiff who had a lifetime of hi miss ramsey and at the end of the day the judge in that case and argue correctly said we can ignore this lifetime of performance in other contexts where reading and concentration are percentile level on the test that requires you to read sentences such as the cat is on really well but we wonder if that just got extraordinary percentile performances in mathematics and markedly different performances in reading and so her ac t score is not necessarily a barometer of her reading score it's a combination of skill so i'm not sure that it dances very well here but i did want to ask you a follow up on something preamble to the regulations but after the proposed rule was could was issued there was commentary in the and the regulators said we're still going to embrace this view so this settlement that you're talking about guidance from the department of justice regarding you should give extra weight to the candidates evaluator we pointed out the department of justice has said there can be no legal obligations on regulated parties beyond what are in the statute and the regulations and then we pointed out that the department of justice has said directly in defining the obligations of the national board of medical examiners you are not required what when was that aside the regulatory scheme will assume it didn't exist like any other judicial decision on facts fact finding and credibility and weight are issues that we have to give gr deference to the district court so even if this regulation like no will or didn't exist or was totally wrong how can we say it is just a court of use this discussion to give more credit to those who examined a person as compared to those who did a paper review and no independent diagnosis how can we say that's an abuse of discretion in terms of purely weighing the evidence your honor it's i don't think the lower court did weigh the evidence i don't think at the end of the day he was making credibility determinations relative to dr smith's findings and the testimony from our experts warn relative to the balance of the record what he said was that he was constrained that we were constrained not to go in and annabel you weigh whether or not she was in fact disabled within the meaning of the on an issue which was an issue that just dr smith never testified to he asked that she's substantially limited compared to most people in the general population and at the end of the day that isn't that is a lot of facts issue and if the court did not apply the correct legal standard which we submit it didn't then and that should be the end of the matter but you did focus at the bottom of page fifty three of the fifty two and fifty three said these we know that these people love it victor never he says they should be given less weight because they didn't personally evaluate her but there's nothing in the regulations that requires that they have personally about weight or nothing in the regulations that says the retake as it were of step one or would this be a prospect events to step two and step three well it would certainly be at least the latter your  honor in our view the appropriate thing would be for her to retake step one which she simply had to take by march st but i suppose that could be part of the court's analysis you know thank you  briefly on the second factor the nd gateway factor reparable hard there was a single fact finding by the district court in support of a reputable arm that was that she had to take and test step court never sort of reaps those additional examination of the only issue before the court was whether or not she had to take the only proper issue whether she at the check step one prior to march nd so you would want to vacate that aspect and then you have another round of battles with her when she takes those tests is that the idea well your honor we think on the record before the court is not to say that on within the meaning we don't we hope we don't have another round of battles with her well you know i think you will have a battle if she says she is and you say she is that correct we will your honor to all of us guided by the court's the court's opinion but again we're here on a mandatory pulmonary injunction which words have meaning is supposed to be a drastic and extraordinary remedy as to which her burden was even higher because it was a mandatory injunction we didn't have discovery for example but clearly even on the basis of the record we had we confirmed that he was not in fact diagnosing sessional he didn't prepare or prepare for he was mistranslated psychiatry us and he wrote a letter of support which and he wrote it started it two pages and when she was done editing it ended up at nine pages dressed again you're from the original version i'm curious about your concern for the the fairness and take integrity of the test would seem to me you want to make sure that people who take this test are qualified to be doctors and would seem to me if someone needs an accommodation in order to be able to present themselves and answer the test to show that they aren't qualified that that that should be something you would want to encourage as compared to discourage your honor we don't discourage it the reality is that standardized tests are standardized for reason of the end of the day fundamentally alters what a standardized test is it isn't fair or a given exam and a to get those non standardized testing conditions if in fact they do not meet the  accommodations except for the double time point here we gave her extensive accommodations but she never chose to test with including testing over two days and testing in a private row the ability to stand and talk if she's on to do so any number of accommodations she didn't want that what she wanted was the additional testing time and time that certainly her record suggests it doesn't need if we look at how she did on the directly comparable  cat exam which is a five plus our computer based exam and how she did on the a c t exam which is a reading intensive exam where to your point judge swartz she scored in the ninety eight percent tile in one of her reading related components on the a c t exam it wasn't a question of her mass or catapulting or to the ninety seven percent she did well across the board including on the reading section right here thank you thank you i'm sure my time is testing as a result of white law and significant challenges with reading and attention the national board of mental examiners asked this court to disregard all of the factual findings of the district were and instead find as another law that a medical student who performs on standardized tests such as the a c t or the n cat using medication makes one of the key arguments is that they believe he's not disabled because your experts say she used but in their evaluations so says your adversary very substantial she doesn't they don't say she is substantially impaired in comparison to the general population why does that absence of that's true a disqualifying  omission well i'm saying that termination whether somebody has a disability particularly in this as in this case or someone's entire future is on a life is not a matter of gotcha or using magic words the district court listened to three days of testimony including detail testimony from dr smith which the district were credited about what he observed  is in those about you asians credit to the doctors for being thorough did be answered the question that your abs is posing which is did they conclude based on these expensive  tests opportunities to be with her that she was substantially impaired in comparison to the general population and if so where did they sa it's not a gotcha moment agree i thought we were bound but what did they say that you would say captures the essence of yes you're that dr smith or is that mr ramsey had one hundred and thirty ramsey performed a nd percentile for reading fluency and that on the nelson danny which it minutely is a relatively short test flight it's a short test for everyone that mr mc was only able to even attempt forty seven percent of the questions using standard time then in his testimony before the district court he walked the court through the kinds of informal accommodations that she required and the paper they should ship with reading it tension is and you know doing well d another standardized tests how do you explain that that was a question that was addressed extensively in the testimony at the district for mrs ramsey herself test by detail about the strategy she use the cynically us would not coach the end in the way that she did the way she approached the end had minimizing reading is something that was necessary for her as a byproduct of a very significant limitation also offered testimony in the district court where she explained that words don't actually have meaning to her like they do to other people and in order to give those words meaning she utilize color pencils and hollers and every detail system of giving a color meaning to her that's not something that certainly in the degree that she testified it's not something that you or your average student or person would it interacts these tests and it really is not like other people well let me let me ask you just as a follow up the district court judge joyner in the army in his opinion said certainly in comparison to the average in the middle in the general population plaintiff appears to have been and continues to be quite successful in her endeavors which obviously  she's attained some success but that seems you know the exact opposite or end of the article to the notion that she's substantially impaired the general population i know you recited the the test results where she's in the st and nd percentile but i think that it's interesting follow up to judge randall's question and how are we to balance that conclusion by the court with this standard that we have to apply of being substantially impaired too in comparison to the general population well your honor the end he gets replied rephrase that point and what it said i believe it's around eight it's not about people having to fail in order to earn some kind of accommodation we can look at stephen hawking or thomas edison or any number of george bush or any number of people who achieved success in their life but how what if i could ask you as a follow up to this on the issue of measuring her comparison to the most people in the general population what is the proper standard to articulate when we're talking about i learning disability case and nd what was before the district court that would allow us to understand that it needs harris because your adversary says that comparison was not made and that was well the learning disability contacts government disability it's particularly important to look at the time every ration condition of how somebody how somebody reads how is this ramsey's relationship with reading went to she actually do and she reads how is that different from the general understand and enjoy the book she went to a friend's house and they actually read it she although my question is that's not really what i'm asking i'm trying to get a sense of who is her compared to what is a people of like age with like education is something different and putting that once we figure out what that is tell me where in the record district were made a conclusion or had evidence of one of its who concluded that she was limited in comparison to most possibly mean that was a five year old is going to read differently than a twenty year old let's call it right well there's some recognition of that and i believe it's in the regulations where they say that obviously someone who's five would read differently than someone who's you know twenty five but i don't think comparison to the general population of sarah lee says that you have to take a twenty seven year old plaintiff and compare it to some mythical twenty seven year old person i think it's just a more general understanding of how the general judge joyner provided some examples of living ten of how she reads and some combinations that she needed or to do what her classmates were doing and while she didn't receive formal like those in the general population aside from dr smith's analysis what other evidence that the district were have in front of it to conclude she was unlike that is there diagnostic evidence or is your position the accommodations themselves demonstrate she's different because she needed to use these medications strategies there certainly was other diagnostic evidence every doctor who ever evaluated her concluded that she needed extended time because of substantial and parents letters in nd grade that she was hers in nd grade that she was already despite having an i q of one hundred and thirty two sheens performing two new years behind her classmates she was really burned out for testing and i think we all when she was referred out for testing she was from birth to an expert dyslexia she wasn't she was referred to an optometrist and the unconscious recognized that there were perceptual issues that remain after attempts at remediation in th grade unique perspective that dr with both treating source and a professor in medical school who saw her functioning in a time when she was motivated to do her very best and after how many in the record explain that heats she's seen her struggle she's seen her have difficulty with attention and focus and reading so there's evidence all novels through throughout growing up all the way through certainly there it came because she was studying all the i think the medical records reflect that she wasn't eating or sleeping work cleaning or paying her bills everything was sacrificed trying to keep in materially college and she still was not able on tests show what her professors recognize cino so it was too low for college professors which i think is fairly unusual who said to her you need to go to disability services so at every at every stage of her education folks noticed that what we were being was not like what other students were doing cite the fact that she was trying very hard and yes she was getting good grades that she was seeking extended time because of other disabilities not because she was that and there was testimony from bernie that ever that she was an avid reader she loves to read and all of her readings floors were average that is very different actually from the record that we have here where just the ramsi is reading fluency and great in public when she's forced or anything but average they were they were substantially distinct are not challenging whether the accommodation shifts request or response which could conceivably change from one test to another they're only challenging whether she's disabled if the court finds as it did that she was disabled and it was on the strength of her dyslexia that she had received accommodations for much of her life there was this discussion every doctor over the course of jessica ramsey's life identifying her as needing accommodations that was information provided to you by opposing counsel in response to the question where was the evidence of substantial limitation here to most people in fact none of those doctors like dr smith none of them addressed the question of substantial limitation care to most people in the general population the interesting thing about those other diagnoses and it ties back to the question of should we defer to the evaluating was ramsey testified at trial that many of the questions could be answered on both of those exams without reading and gathering information from the passages in fact with the a c c manual tells students is before you answer questions read the are testifying experts below testified that you need basic reading skills to orm on the a c d and the and he also testified that when he's doing in the valuation he looks at standardized test results precisely because one's ability to perform on tests like the act and the m cas necessarily reflect your ability to process information to code to do all of the things that according to his diagnostic sub scores is performing at the level of the elementary schools there's just a fundamental disconnect there twain two decades of objective evidence and the testimony she provided a trial there was a statement again that she was receiving informal accommodations and that explains how it is she got all these wonderful grades and did so well on standardized tests that's not accurate when she st applied for accommodations to the n b m e in two thousand and sixteen she was asked to identify screen nominations she identified a single accommodation a single set of accommodations received in one elementary school against that w have as i say two decades of evidence if you look at her school records you will see there are at least forty five teachers in the course of her case through twelve education had an opportunity to grade her and to fill out reports on whether or not there were issues and class and whether or not she was warming at the level expected she got mostly a's a handful of b s and no one ever indicated that there were any attention issues with concentration if in fact she were struggling and had severe impairments at the level that she described in her testimony those would have surfaced at some point across that educational in u your honor we finally would just ask the court to compare the different questions the questions see staying on the step one exam a shorter than anything she saw in the act shorter than anything she says the she saw on the m