good morning your honour's i'm jeffrey baird representing mr brown in this social security disability case i'd like to reserve a couple of minutes for rebuttal the algae did not give a good interpretation a rational interpretation of dr cavell zx opinion dr cavell made very vivid findings in examining mr brown that he had to use his fingers to count backwards that he couldn't spell the word world at all and could spell it backwards once given the letters he needed three prompts to remember three items he could not perform a three step instruction he kept forgetting one of the steps and didn't seem to notice so she decided that he could probably do two step in struggle she didn't say other than her and her findings she did limit him to simple instructions but one has to infer she meant to step instructions because he vividly showed he couldn't do three that was in her own findings but that's an important limitation to have in the r f c because a limitation to two step simple instructions would it would be reasoning level one jobs in the dictionary of occupational titles so it's it's a distinctive important limitation beyond simple repetitive tasks they didn't seem to notice that and simply gave  full full deference to dr cavell but she also found dr bell found that the claimant would have a fair amount of difficulty with attention and distract ability to distracted by depressive rumination as well as his sort of cognitive slowness she also said that he might have trouble with regular work attendance and persistence in tasks i wish she'd been more specific but those were cautions she raised and against this backdrop of a findings she said he had a global assessment of functioning of fifty which would ordinarily indicate serious impairment in social occupational functioning she may well have based it on his symptoms partly but she took a long history with him she took a lot of interview data and never doubted any of it she gave credence to him in context with her examination of him so she accepted his symptom statements and the j f would represent issue i want to get to was the hands there's a stretch of time where the claimant is in need of surgery for carpal tunnel syndrome in march two thousand and ten his treating physician found moderate to severe carpal tunnel syndrome on the right and mild to moderate on the left and recommended surgery there was a surgery eighteen months later with dr stewart and that appeared to be successful although claimant later complained at the hearing he still had not  think he did make some inconsistent statements but that appears to be part of his general maladaptive personality traits if you read through the hearing testimony he's very sincere but very idiosyncratic and he does say one thing consistently that he has trouble attending or paying attention for long periods for example had to get up during his classes a two hour class he couldn't sustain that he'd have to get up and walk around or leave and he gave various reasons including sort of emotional reasons to leave she was talking about serial killers or whatever so he has to take breaks he explained he had to take breaks riding the boss he was able to do public transportation and l j relied on that but he also explained he was taking breaks and that is what's really the problem here is the inability to sustain attention for extended periods and the need for special breaks or even the need for special supervision if he can't remember three items with three prompts if you can't continue in conversation as dr cavell found without occasional prompting to redirect him on the conversation so go back to your you had started down the carpal tunnel yeah path but his own doctor is treating physician actually said he had the full range of motion in his hands and fingers both before and after that's pretty powerful well but the l j also accepted doctored findings of moderate to severe carpal tunnel on the right that required surgery and noted the matter on the left but he had surgery once you have that if you have this full range of motion the surgery may have been successful but there's an eighteen month period remember the duration of the arm that testimony is before and after well in this the surgery may have have reduced the carpal tunnel syndrome my argument is that for eighteen months more than the twelve month duration requirement he couldn't possibly have performed the jobs the ve identified is they required frequent handling if he had moderate to severe carpal tunnel syndrome requiring surgery for eighteen months he couldn't have done frequent handling and he couldn't have done those jobs so that would at least be a reason for remain for further proceedings to explore that although he's also probably should've been limited to sedentary work because you'd only stand and walk two hours with his  just a generation and his obesity but that would mean something less than frequent handling sedentary work would suggest he couldn't perform the job the ve found or any others during that eighteen month  p regards his credibility so many of these cases are like this he's he's a funny guy but i believe in the in the hearing he comes through a sincere and some things he says are dramatic but some things he says are measured and the most important thing he was saying was can't finish watching a movie he might watch t v all day but he doesn't really attend to the movie for two hours he couldn't stay in class for two hours you got at his community college he needed breaks riding the bus i doubt he would have the wherewithal to know that matters and social security the two hour increments or extra breaks are so crucial for unskilled work he wouldn't have known that allege limited in him in any way and that are inconsistent with his own reports so specifically brown alleges disability due to concentration attention deficit but he has been noted to have normal attention he attends college courses he's reported that all he does is read brown also alleges a close period of disability due to carpal tunnel but during the same period that he's alleging disability brown reported shoveling snow and regularly using an online social network on online social networking site because brown hasn't met his burden of establishing air and because the elder his decision is supported by substantial evidence the course we request the court affirm first of all discuss brown's allegations regarding his mental impairments both as discussed by examining rationally incorporated the assessments of dr colwell into the residual functional capacity consistent with this court's precedent so as this court held and rounds an ale j may rely upon specific imperatives and a doctor's opinion rather than mere recommendations and that's what the a l j did so looking at dr cabell's opinion dr cavell specifically said that brown would have no significant limitations understanding recalling or following through on simple tasks or  making routine judgments and decisions converse lee dr cabell found that brown would likely have a fair amount of difficulty with complex tasks due to limitations in comprehension and difficulty with attention indestructibility so the  j considering those two specific statements found that brown would be able to do simple repetitive work now brown objects that based upon observations dr bell made during the examination that dr cabals opinion is actually more restrictive than it express argued in the brief and here you know dr kobi didn't know that brown had some difficulty with the three step exam instruction and that he had some difficulty conducting serial threes but observations on examination are not the same as an opinion and opinion properly considers observations on examination properly considers the claimant's report of history properly considers the claim its treatment record and utilizes all of that information to make an opinion and that's  develop noted some difficulties on examination but also took a lengthy history and reviewed his interview brown's medical records and noting only mild distractibility on examination found that brown would be able to do simple repetitive work browne also argues that distractibility would always apply no matter the complexity and simplicity of the tasks but again we can look at dr cabals opinion dr bell did not qualify his statement that brown would be able to do simple repetitive excuse me simple routine work but did qualify his demand that brown be able to do complex work saying that brown would have difficulty with it due to difficulty with attention indestructibility so the  valentine from this court's holding and valentine and rounds that mere recommendations or conditions under which a claimant's work might be optimized need not be included in the r f c so in this case dr cavell said for example that brown's pace and persistence quote may be impacted that brown quote may have some difficulty with social interactions and so these couched concerns that were not specific imperatives but instead were just statements of concern or possibilities needn't be incorporated in the r f c nonetheless the l g did consider those for example limiting brown to work that was non manufacturing style and on pace work  noted some concerns about his social interaction so the l j limited brown to work with only occasional interaction with coworkers and superficial interaction with the public finally brown points to dr  assessment functioning of functioning score of fifty or gas score and says that that score indicates that dr cabell's opinion is more limiting than expressly stated or that included in the earth but the  valid reasons to discount that gaffe score noting that gaffe scores consist always reflect the worst of symptoms of already or functioning and so it could be based on brown's own subjective statements about his symptoms  very and in this case where the l j provided valid reasons to discount brown subjective statements that's a particularly important valuating the gaffe score and the l g also noted that there's no direct correlation from a gaffe score to the agency's disability analysis so the gas score doesn't identify any specific functional limitations the gas for likewise doesn't have any direct correlation to the agency's listing for example so they all day give valid reasons to discount  ways interpretation of dr cavell zx opinion was rational and even if they're all trying to potations as this court held in birch and recently reiterated in shabby excuse the pronunciation interpret rational interpretations of the evidence should be credited so now i'll move to the l g is evaluation of brown subject of complaint so as was discussed brown alleges that he was unable to sustain tension and concentration sufficient to maintain work but the a l j gay valid reasons to discount that allegation first brown made statements to the agency and participated in activities that undermine that  as brown took classes at community college he once reported quote all i do is read books although he said he had difficulties watching t v at the hearing elsewhere he reported he spent the entire day watching movies in two thousand and nine in two thousand and ten when he completed function reports that were submitted to the agency he denied any difficulties with concentration and his mother like why deny that brown had any difficulties with concentration at two thousand  ten also consider the objective evidence in evaluating brown subjective complaints so for example one treatment provider noted that brown tensed attention concentration was within normal limits dr cavell noted only mild issues with distractibility and specifically stated brown would have no issues understanding recalling or following through on simple tasks and the state agency physician dr donohue who also evaluated  specifically stated that brown would be able to sustain work for two hours at a time which is what's required in some the a l j provided valid reasons to discount brown's subjective allegations of a sometimes finally all turn to brown's allegation of a closed period of disability due to carpal tunnel syndrome so we know from this court's decisions and decision and matthews that the mere existence of an impairment does not establish limitations and we also know from this court's holding in valentine that brown has the burden of proof of a stablish in disability and although brown attempts to do that by pointing to treatment notes the opinions of dr dimmer that evidence is not  ins inconsistent with those contained in the r f c so for example brown points to the fact that he had the city or impairment of carpal tunnel syndrome and also that he said once that he can't open a can of pop but as the court discussed earlier examination revealed that he had full range of motion of his fingers and wrists he has no muscle atrophy he had normal strength and moreover brown made some reports during this alleged period of disability this alleged closed period of disability that are not consistent with his allegation that he can't open of can a pop for example in march two thousand and eleven he reported to one provider that he was shoveling snow that at script page eleven twenty seven a couple months prior that he reported that he was using an arm line social networking site which indicates he was getting on the computer or phone or something about that transcript page one thousand and nine brown also points to the opinions of dr dittmer but as discussed in the briefs d l j k valid reasons to discount those opinions and those reasons were not contested by brown so in some the a l j establish his burden of proof that the mere existence of his impairment of carpal tunnel syndrome establishes limitations inconsistent with the r f c and thus the court has any questions thank you you thank  e accepted dr dinners explanation that the carpal tunnel syndrome was moderate to severe on the right and moderate or mild moderate on the left and required surgery so she did accept that if that's that's not saying she accepted dinners functional assessments later on but she did accept that finding of the moderate to severe carpal tunnel syndrome in march two thousand and ten again if required surgery a year and a half later there's a stretch of time where she couldn't possibly have been doing frequent handling as would be required for all the soldering jobs and bench work that the ve identified v g f of fifty becomes important because in the context of these findings that dr cavell made even the tentative so called fair amount of difficulty with attention instruct ability or might be impaired in attendance and persistence the fifty in that context suggests he can't he can't sustain work that's a way of the doctor expressing this of the seriousness of the impairment if he could do simple tasks or simple instructions dr cavell demonstrated clinically he couldn't do three step tasks this has to be an r one reasoning level one r f c assessment or simply at least included in the r f c assessment limited to two step simple instructions because that would affect the job base that that could be discovered there was only one of the ves identify jobs table worker which might be ve gave the wrong number in the dictionary occupational titles and some of the table workers were are too and some are one but even at best the national numbers in local numbers would be too low for significant they're below the gutierrez benchmark of twenty five thousand nationally and there's no further questions i think so thank you very much thank you thank you both for the argument that's very well briefed and of course as we know in these cases depends so significantly on the records that we will of course go back and be looking at the record again thank you case just argued is submitted brown versus barry hill and will now hear argument in first citizens versus wilson