my name is jason rodman and i represent the appellant kelly may not allman a demonstrated hard worker and objectively disabled individual i'd like to reserve a half of my time for but first the l j the administrative law judge did not properly consider the respiratory listings and second the objective medical evidence backs up what climate testified at here  this is a lady who is x agenda fish and she endures falls because of that she has to wear oxygen this affects her energy she even even activity with sitting will be too great a strain on her to do without oxygen she can sometimes endure sitting without activity for up to ten minutes this affects her energy she must nebulizer regularly in a way that significantly affects her did this affect her energy but she cannot get enough air out of her lungs though the quickly enough this affects her energy so i want to first show you how the respiratory listings were met or equal here and second to talk about how the objective medical evidence backs up what her testimony was that here ok so first by the time of the hearing structural long problems had set  for killing element and so the very we see in the the evidence stuff from april two thousand and fifteen as you reviewed the timing of the record it's interesting because that stuff had already occurred at the time of the hearing so the administrative law judge was looking across the bench to a claimant who had a condition that was that listing the the judge instead of looking at that claim and listening to the things and this leads into that made my second point instead of looking at the claim and listening to the things that she was sane and assessing them up in sizing her up for credibility instead the l g seems to freeze time freeze time at april two thousand and fourteen which is the date counsel and the listings my my understanding is deans are about particular items and numbers the things that you're sane would seem to be more appropriate at step five of a generalized ability to work my wrong about that that is the listing seems pretty simple this one point one five f t v and as i understand it correct me if i've got this wrong the ala jay is looking at the things in the record that are correct under the standards and says you're too high when you're above one point one five there's this do some borowe item which doesn't  the appeals level my roughly right about the standards you're roughly right what's the what's interesting and and i don't want to dwell here but this hearing the representative's office was contacting the appeals council alerting them we've got evidence to get into the referenced we've got exhibits to get into the record so it was a really fast turnaround i think th is that the april test of the april one i was far as i can tell from the record that would be everything that was not in there in there but it's there so it's oh that would be that would include the protests yes i understand and tell me if i'm wrong on this the best things you have going for you is the point nine two reading which is below one point one five from december one which the magi discounted because it didn't go through the three tested just a one liner and then the april fifteenth the april one reading of one point one to look at a real date are those the two things you're relying the listings in the spirit of the way the listings are written is that the list is represented a short cut to disability showing that someone with those listings is not functional and able to work and my point is actually hearing the judge was looking across the way to someone who by the s s a his own listings was in a position where based on just the work she wasn't functional and able to work based on even the shortcut basis at that time he just happened to have not seen that evidence yet although there was evidence because that december fourteenth was in ten out or end of the december two thousand fourteen was in ten f and that was in the that wasn't it's every but and there was an also an arc that the representative here in pointed out that the september number of questions for you i'm sorry i'm just saying that that is what i call the one liner that is it's a reference that has a single number doesn't say whether you did the three tests and so on issue because the key thing that the administrative law judge relies on is that april two thousand and fourteen opinion by a medical examiner who seems to strictly base his opinion on first to pull the l d s step three finding because the algae supportively found that gentleman didn't meet her equal and he listings including any of the listings under chapter three point zero zero for respiratory disorders the primary listing it issue is listing three point  properly concluded based on the only proper test before him that she didn't meet this requirement because all those values from the april two thousand and fourteen test were well above the threshold value of one point one five i'm here  centers on two other tests in the record but only one of those was before the l j and that is the december two thousand and fourteen test but she can't demonstrate that she's entitled to any man based on that particular test because there's no evidence in the record that three maneuvers were performed number follow the rules but if i go back and read every bit of the transcript of the hearing i'm going to find that point nine two just doesn't come up yes it's not it's not reference here i just wanted to clarify there was no government lawyer at the hero but too for benefits but look we've got this point nine two which is in your record set fair yes and then the april i were right that the april one was before the appeals council but not before the cracked and that when did appear to have the the necessary three tests that when did yes so in principle could could she still work could she have filed with the later on appeals council before raising them in federal court there's but it also has a language about the have having to do is to look at the arguments for both sides as might be found in the record certainly the judge but i don't i don't want to get too far afield on that point because that's not our argument here and it is one of the reasons she's not entitle to remember the stage but it's also more to the point it is her burden and step three both for the l g and before this court to show that furthermore let me ask you one thing the magistrate just said that the duration of the requirement was not satisfied because there was no proof that claimed this condition had lasted twelve months and now that that would not be a correct position would it in the sense that the c o p d be generative condition for a four point fifteen twenty five c for specifies it where particular listing doesn't specify a time frame then the default timeframe that the claimant has to show that the impairment would last at that listing level is twelve months and even if you do count those two the two levels the point nine two from december two thousand and fourteen and the one point one two from april two thousand and fifteen those are only four months apart so we don't have a clear  and that's what the magistrate judge said and she cites a case that didn't seem to be quite on point if you if you had medical testimony that says this is irreversibly degenerative and you've gotten below the level would that not be potentially adequate evidence that it will last for twelve months if we had that yes i mean because you know if you cut your leg off you don't have to wait to twelve months if you meet the standard for having only one left that's accurate but we just we just don't have that here we don't have medical testimony we don't have anything in the record to establish that this condition was likely with any certainty of persisted at certain levels of the i mean if we look at all of these we see it goes up and down although it appears to be headed down but it does go up and down i was that's exactly what i was getting to is that there is no clear we're looking at a fairly small timeframe to begin with and that we can't i'm i also write that the standard that the first one that was done had four trials and it had them with and without bronco dilators am i right that that's required under the under the standards yes that is required and that's the only one that has the  looked at which is page id so many different numbers spirit it's three sixty seven in the lower right which seems to be the full certain the full pass from april has the three trials but i don't see the bronco dilators ok go ahead in any case the truth has don't establish it and as to natalie's argument that her condition would because she has this some genetic condition you would obviously deteriorate we don't know that from the record the record just doesn't establish that is speculative and because it's her burden the court to show that she made a listing she hasn't met their burden based on that argument started with respect to the genetic genetics are you saying that that was  brought up in the briefs that there wasn't before the l j the fact that she had the genetic condition was before the l j but i'm saying that there's nothing in the record that shows that just because she had this genetic condition her her  o pretty would necessarily deteriorate much less at the rate she's claiming that it was we just don't have that in the record of this would be presumably would have come from dr patel if there was anything it could have yes but it we don't think it is you know we don't have that and  lasting more and more days each requiring intensive treatment and she would need to show that she had at least one of these every two months or at least six times year we've outlined in our brief what huge of the episodes that she mentioned doesn't meet the standard  for them or that the fact that she was using often by herself by itself doesn't necessarily help her meter recall any of the listings and furthermore dr abbassi the state of the physician was aware that she was using oxygen now as for her argument about her subjective complaints that also she also hasn't established any area there that would entitle her to remain and as to her argument in her brief that the l j offered no reasonable or plausible analysis as to why he didn't fully accept her subjective complaints that's belied by the record the l c offered a number of a number of reasons i'll just go through each of them briefly he first noted that she had a number of relatively normal long exams in both august two thousand and fourteen and october two thousand and fourteen the regulations specify that objective evidence while not the only consideration is a l d to take into account the day also noted that she hadn't had any hospitalizations or emergency room treatments since december of two thousand and fourteen that's also an accurate statement and intensity of treatment is also a relevant consideration particularly for these long impairments now she has mentioned a number of reasons why she didn't seek medical treatment on these particular occasions and that may be true but it still doesn't it still doesn't explain why on the occasions when she did see her doctor there after more serious findings were noted to her doctors didn't prescribe any of the very intensive treatments that one might expect under the listings she also feels they also noted that she didn't seek medical treatment neatly after a le collapse in her yard again one consequence of that is that we just don't have the objective findings afterward that would lead us to understand exactly how severe that episode was also noted that her doctors were unsure if she needed oxygen into all times  accuracy of that statement but this is in fact a direct quote from dr patel in august of two thousand and fourteen we are unsure if she is to have oxygen at all times is on page three thirty six of the record or some other ambiguous statements about frequency in the record also furthermore the l g noted that plaintiff reported breathing improvements after she started simple court and completing nebulizer treatments response to treatment is also a valid consideration and this is based on a number of statements both by her and by her doctors and also her testimony also considered her activities of daily living which is also a relevant consideration under the regulations also consider that while she alleges number of activities in her function report she testif that she was no longer performing at that level the knowledge that testimony and relied only on her testimony as opposed to the statements in the function report and each of these is a valid consideration under regulations it's supported by the record think i've listened questions about the listings in this case certainly concerns a list in situation but because of the timings and maybe some of the nuances it's quite possible that a different doctrine besides a doctrine specifically applying to listings was not questioned or really contested or discussed by the medical reports that that leads to no deference due to that algae opinion alternately the sort of the doctrine which is that where the medical evidence and the activities of daily living are pulled out of context and aren't presented in good faith that is a reason to conclude that substantial evidence has not been m without oxygen if in fact you look up that reference what it says is that she can sit without and this is her testifying without those records having been yet on the record what she says is that she can sit without oxygen for a short period if she's not active in the world of social security determinations that's a very significantly substantially different statement then what is alleged by the l g opinion out of context substantial substantially the context that she can say it was it likewise in terms of dr temple as our mr temple is indications that maybe she does not need oxygen at all times in the course of the record that statement is backtracked when she keeps having problems and no and that every visit to a stethoscope would be placed on her chest and there would be objective listening to her condition and yet there is none of these forks have done anything except stand by the notion that she needs to be on oxygen she should not be off of it all is there is there are laws or cases regulations that imply or state that if you have use an oxygen tank continuously you're automatically disabled there is i think this is covered in the briefing that i think there's some reference in the new regulations suggesting that you use of and but this is not the regulation at in place at this time but maybe the new one  we're contesting that the notion is that this lady is stuck kind of needing as much as we've seen her just try to try to live without it try to go back to work she has not been cases where a court or the appeals council says she's on oxygen at all times therefore she can't work because just casually you see people doing lots of stuff with oxygen tank that might be the case i don't know that your answer to that i'd say it's not good doesn't move us away from the rest of the normal evidentiary rules that was my question ok but my point is that the did the situation with the way the listings were handled by the administrative law judge the way the things were taken out of context by the administrative law judge the problem with the tiny mean and the reliance on the medical consultant who  context of those things taken out of context it and the significance of the timing issue with the woman having what by even the simplest measures quite possibly if it doesn't meet the listing quite possibly maybe equals it which is which isn't which is met or equal that's that's the language used  right and then he goes on to explain that either the listings list a durational requirement and if they don't then the test is the test most of us are familiar with which symptoms that she's tried to struggle within and deal with but hasn't been able to the doctors corroborating that and the evidence that it seems to be going downhill she's got the class three disc which the in working and i don't think that is it is plausible under the facts and i we quest that the interests of justice be served over than the narrow technical reading of