to court i'm james tree and i'm here today pleased to represent remapped using a cell security disability claim miss matthews when she was she's still turned fifty this year when she was eighteen though she was writing on a motorcycle and got a severe injuries to her left leg required multiple surgeries including an open reduction in internal fixation with metal plates that resulted in a very shortened left leg as a result of that she applied for i disability back at that time and was immediately awarded benefits because her injuries were so severe she can i interrupt you for just a nd i think we've all read the facts and are familiar with them i've got a question for you certain there were two reports written by dr waiver one in  december i believe two thousand and thirteen another one in january of two thousand and fifteen is there any evidence that dr hale reviewed either one of those two reports dr hill did not really read either of those reports dr hale did not review the photographs there's no indication that dr hale reviewed the m r i he did did he ever express an opinion as to whether or not those two reports stated her physical condition or physical disability in air now in fact when he did review the limited amount of information previously from dr waiver dr hell said i give that i give dr waiver great weight which is consistent with your regulations that we generally give great weight to the treating physician so the part that he did review he agreed with dr waivers analysis he didn't review the important parts of dr waivers opinions and he never saw them they were never given to him and he didn't contradict it's before this matthews was represented she filed on her own she went into the so straight in ministration a couple things happen st of all when she went in there and saw the social security worker the worker made a note she needs to use a cane and she had a cane and noted it in or observations when she st applied for disability benefits she was asked when did you stop working she said i stopped work in july of two thousand and nine she said did you stop working because of your impairment she says no i got fired said was asked when did your condition even though you didn't stop because your condition when did your condition stop you from being able to work full time she said interestingly two thousand and eight not because she worked in twenty million eighty two thousand and nine but she was missing a lot of work that's reflected in the record ok i think my question was going in the opposite direction what i'm wondering is in order to reverse here do we have to find that the record compels the conclusion that she was disabled as of may th or alternatively let's say that we became convinced that she was disabled the records show she was unstable but at a later point does that not help you do we have to find it as of may have tw eleven which is two months after the may date ok well i guess my so yeah so it would be err for that for the l j to have even if then the reason i asked that is that it seemed to me i'm a little hazy now on the particulars but there was as of may of two thousand and eleven i would say that the record i don't know you could kind of read it either way it was some later point where dr waiver came in that it seemed much clear times a total of thirty five dollars visits to doctor waivers office doctor waiver personally saw her thirty two of those thirty five times now much of those visits were in two thousand and eight when she says she told dr waiver contemporaneously in two thousand and eight i'm ha delegate a lot of my work to another coworker at this check case cashing place because i can't do it any longer she told dr waiver that she was missing work and some months she was only able to work a total of five days during the month her employer accommodated her until july of two thousand and nine when he said that he was fired her because she held the check too long there was nothing nefarious about that it was that at payday loan place where a person would come in and give them a post dated check  o the date of their next payroll check so that they can get a loan with interest and she the record shows that she she didn't like the collection part of it and she was trying to help somebody out and she held the check to long range and they use that as the reason to get rid of her now what is significant about all this is because the judge didn't look at two thousand and eight when she was having severe six month problem so she was on disability seven years she got off of disability she worked for ten prescribe her morphine st fifteen milligrams then thirty milligrams then sixty then ninety then one hundred and twenty milligrams he put her on the high maximum dosage of by couldn't and the maximum it shows markedly advanced degeneration and bone in the human it shows this is what the m r i says this is my characterization of it is this huge fights in both the medial and lateral join departments into the joint department she had huge bones for us so she has objective evidence that the l j found that she could do less than a full range of sedentary work social security rules say that work is defined as  teen report we have from dr weaver because that's the one that i was just going back to my notes there the picture that emerges is of someone who certainly can't do any job that involves a lot of walking or standing but there seems to me the implication is that she could do a job that that would be classified as sedentary as of april rd seen based on this report then of course you jump ahead and get the later reports and all this and she can't do right you know anything and that's what i think i was reacting to well wait a minute nothing seemed to have changed in that relatively short interval and so i'm going to go with the earlier one because i think there was some suggestion that the later reports came after she had gotten involved in trying to get disability benefits and happened so what is your response to that so another thing that's in there for two thousand and thirteen report that they didn't mention was that dr wayburn had noted in his report that she was needing frequent breaks and so yes she can be on her feet day l j said she could be on her feet for only twenty minutes which she said she could be on her feet thirty minutes to sixty minutes and i think that's what dr waiver was saying she could be on her feet for that but she would need frequent breaks her husband said that she watches t v and reads which were two reasons that the l g just credited her because she watched t v and read but her husband says she does it lying down on her leg elevated for over half the day she consistently testified so that's what that's what happens dr wayburn when he was asked what about the need to lie down he says yes she needs to live and about four times a day because out of medical medical necessity she has chronic and emma and through those chart notes it showed that think i'm not sure that completely answers the question of what the there was the sudden worsening in the conclusion with no explanation in the described symptoms with no explanation of why they had gone worsening and that brings up the question i want to ask you which is why i read the l j is the thing that dr weaver's conclusions are heavily based on the subjective reporting of symptoms given to on it what judge what dr weybridge said and his opinions that he wrote in authored were that she had chronic anemia should severe leg shortening she had severe osteoarthritis that she was obese and that she walked with a limp and she had back progressive back pain that he noted because of the condition with her knee and the way that she had to walk he did send her to a specialist she did see d rehabilitation specialist during this period of time in two thousand and eight that's reflected in in dr weaver's chart notes dale j said she saw no specialist they l j said she there was no indication a doctor waiver said she used a cane but in dr wavers notes he said he talked to her about the cane and how it was causing problems for their right hand because she was using it so frequently and talked about her using a forearm cane instead of a hand held cane that's significant because the medical community dr wayburn knows that when you have a left leg impairment you use the cane in the right  and the person that taking it doesn't know that they could be using a left hand right hand but use it in the right hand for a left leg impairment and she had problems with right hand because she was over using the cane what is so significant about that your hon or is because that the administrative law judge said she made inconsistent statements about the cane and they don't show up anywhere in dr waivers reports they did the federal court said that was clear air and then said it was harmless but this statement from the l j at twenty three dollars he quote such a clear inconsistency is talking about the cain undermine not only the claimants credibility but also the credibility of the physician's opinion to me that jumps out that is good morning your honor joseph i come around the half of the commissioner miss matthews alleges that she's been disabled for motorcycle accident from three decades ago stemming primarily from a leg impairment yet for years after that she worked up and thr to july of two thousand and nine and she stopped working in july two thousand and nine not because of her leg impairment but because she was holding on to a check that she wasn't entitled to when we look at the medical records judge wofford as you pointed out the alleged onset date is may two thousand and eleven when we look at the medical records since then and even medical records before then we see that while she had leg swelling her condition really remained unchanged for a period and then in may two thousand and eleven there's really nothing remarkable about that date either for example in july two thousand and eleven the date that dr waiver said that miss matthews was unable to work she described her pain as tolerable again in august two thousand and eleven and an october two thousand and eleven she said that her pain was tolerable and she said that her pain was quote adequately controlled she admitted in september two thousand and twelve getting back to work your question yes or no in a may rd two thousand and eleven even though perhaps there was a time when it might have been stable right the i'm not admit i'm not admitting that i don't think that the found that her condition worsened to the extent that she was unable to work so while there were yes there were some changes in medication around that time frame she remained on very very similar doses of medication throughout the relevant time from the one time it was increased four times right so not doubled would quadrupled there were more and that maybe i'm not i'm not entirely familiar with the of that visit but the key here is that the looked at those records during the relevant timeframe and saw things like her admitting that her pain was adequate adequately control that was in september i believe that was in september of two thousand and twelve she said it was affective in relieving her pain the only looked at that also looked at the fact that yes she certainly did have leg swelling she certainly experienced severe limitations from her leg impairment and the edge actually restricted her r f c her residual functional pass to standing for just twenty minutes at a time walking for just twenty minutes at a time a total of two hours a day those are very significant restrictions and even with those restrictions a vocational expert testified that miss matthews was able to perform work so the algae did certainly account for your honor's point that miss matthews did experience pain she experienced leg impairments however not to the extent that she was completely unable to work and the state agency doctor's opinion supports that notion dr hell's opinion well let me ask you about that because as i asked your posing counsel there were two reports issued by dr wayburn who was the treating physician for more than a decade and those two reports indicated that she will have to lie down multiple times up to one hour at a time because of leg and back pain her back pain is progressive and there are no surgical options and he opines example the question is is there any medical opinion in the record regardless of whether or not the state agency dr dr hill actually reviewed that opinion the in or the trigger the specific and legitimate standard to review dr hell's regulations that's under this court's round's decision the l g is responsible for translating those findings into a sink r f c so the l j looked at dr hal's opinion and found that it was in accord with the overall record and then looked at the later opinions from dr waiver and found that in fact those those opinions were not supported by the records in this case for example records showing  showing that by and large treatment was helping her she admitted taking being quote unquote quite active taking care of her grandchildren the o j looked at those the that discrepancy and reasonably found that while dr waivers earlier april two thousand and thirteen opinion aligned with the overall record his later opinions which didn't find any support in either his notes in those opinions or in his treatment records that that warrant to give in those opinions less weight in his judge miller for large periods of time he didn't actually opine that backs contained on page two hundred and eighty nine in her own subjective complaints she said she needed to take frequent breaks so so that's a good example of where the finding on doctor wavers later opinions are based at least to some extent on her reporting subjective symptoms so he has no basis dr weaver has no basis for discounting those why in the world would we then not credit his later opinion at that point because the l j provided additional reasons even if your offer even even if you disagree with that the that the lady the judge the doctor wavers later opinions relied largely on her subjective complaints that was actually just one reason that the l j goes through all of dr wavers records and says medication is working she's she's staying active and things like taking care of her grandchildren things you know the doctor wavers more restrictive opinion stands at odds with those notes you find in the medical records that would tell you that somebody is lying when they say i need to elevate my feet for an hour during the course of that kind of thing there's a i think i think the think with respect r her counsel's view is that she's going to have to take these breaks that no reasonable employer will be able to tolerate and in addition there are going to be a number of days during the month that you have to miss right that's the key limitation that they won't credit and i'm i guess my question to you is ok fine we'll look at the medical records and what what is it that we would see in there that would in fact validate that i don't i'm not familiar with what would we be looking for sure and i mean let me so she's alleging and i think dr weber has also said that she would have to lie down for you know large portions of the day take multiple breaks but let's look at what are the treatment records say join us for all the time frame for example in july two thousand and eleven this is this is the this is the very month that dr waiver said she started to incur all of these limitations in one of his opinions she says quote she does feel her pain is added adequately controlled september two thousand and twelve she admitted that she was quote getting back to work quote quite busy taking care of her grandchildren september th well if she felt her medication was h and if we look at dr algae looked at these records over a course of time and while there were fluctuations in the amount of medication she was receiving the ael j took a reasonable interpretation of this of the records under this court's batson decision under this court's  interpretation of the record is reasonable despite there being potentially an alternative rational interpretation the court should affirm so the question is is there substantial evidence to support the j's interpretation of those medical being tolerable that her pain was adequate adequately controlled that she was staying quite busy and taking care of her grandchildren so there is there is evidence that the o j looked at that on a whole showed that the spite some fluctuations medication she was not disabled and again i would remind the court that the l g did afford significant limitations to this individual the question that you said there's fluctuation in the medication is there any record that the pain medication was decreased honor i don't i don't know if i have a specific site i increased again and it was agreed and i'm and i'm not sure if i can give your honor a specific page if that did and if that did occur but i see my time my time is up so unless the court has any other questions could i just ask you a brief to address the harmless error analysis and given that you've conceded that some of the russian dolls for funding are not credible you're not defending so sure so in so in carmichael this court decision in carmichael the court said that even if some reasons are unpersuasive the court finds some of the edges rationale not supported by substantial evidence as long as there is as long as he did provide clear and convincing reasons at the end of the day supported by substantial evidence the court should still affirm so here the cited these are the reasons that the agent agency is defending the fact that the medical records didn't support the extent of allegations  she claimed were disabling that she performed activities of daily living that stood at odds with some of her allegations that she stopped working for reasons unrelated to her impairment so she stopped working in two thousand and nine because she held onto a check she wasn't entitled to under the course brewton decision that is a valid consideration and that the court should uphold that finding so the l j did provide reasons to judge miller's point provided reasons that are still supported by substantial evidence such that the court should still so there's two references in the in the file for dr weyburn had said that she had tolerable pain levels but that's not all of that he said he also said she had tolerable pain level on her current treatment regime her current retreatment regime was that she had been increased of on that same visit to four doses of morphine instead of three per day that she was at the maximum dosage of by couldn't she no longer unfortunately she had lost her insurance when she lost her job she couldn't afford to get the pen because that's a very expensive nerve medication her her treatment regime was that she would elevate her leg as confirmed by dr waiver and confirmed by her husband and as testified to by herself for about half the day that's the normal way to treat a demon chronic edema is to elevate your leg above heart level so that the pumping of the heart does a better job of trying to control some of that even if she had chronic and even so it wasn't that her her pain was tolerable at work at this time she wasn't work the record shows she loved gardening and welsh much of the time why she was working up until two thousand and eight she was working full time she was gardening a lot it was a big hobby of hers she had it killed me want to stop gardening but by when when the doctor said that her pain level was tolerable under treatment regime she was no longer gardening she was no longer working she was laying down half the day elevating her leg so that's how her pain level was tolerable there her doctor said if she had to go to work her pain level no longer would be tolerable she would miss four more days of work for a month she needs to lay down and elevate her leg if the court were to find that she became disabled on some date after may of two thousand and eleven miss matthews would prefer the court to grant her earned media word of benefits on that date rather than to send it back she desperately needs medication she has still has no insurance and she needs insurance to be able to get the care that she needs for this severe condition in two thousand and twelve they did increase or morphine to four times a day which is near the daily maximum along with the by couldn't and that's the date where they're one of the references talks about tolerable playing with with treatment regime but also says she had significant pain in both her knee and her ankle she had improper gait she had decreased range of motion in her knee and her ankle she had deformity we haven't even talked about the fact that the l j didn't develop the the photo he just said is of no value to me i'm not a physician but it showed edema it showed deformities it showed that it showed what dr waiver stated in his reports were reasonable opinions that she needs to elevate her leg that she needs to lie down that she would miss work and he gave that report his st report in december of two thousand and thirteen if the court were to find these he said it right back to july of two thousand and eleven but if the court were to find even to december of two thousand and thirteen should much prefer that the court grant her benefits at some point at least by may of two thousand and eleven as late as