this is a case where the mr will your sought disability benefits as of january of two thousand and six prior to that time he had worked consistently since age seventeen he posted quarters and every year for thirty five years he started developing some back pain prior to january two thousand and six got into medical treatment unfortunately in january he had a stroke not just a little stroke big s while he remained in treatment for his back pain about the work it's my understanding which may short cut a little bit about what you're about to say that is disability onset date is all right i got it so i'm just trying to short cut what you're trying to tell me so let's fifty issues all right so let's talk about mr williams credibility a hard worker obviously very severe medical problems goes to his doctors even before disability having m r i eyes he's having nerve conduction studies they confirm that he's got cervical we take you live to thirty he keeps going to his doctors they confirm that is got lumbar ridiculous operate the he keeps going to the doctors they talk about doing a fusion or an idea for seizure they end up finding that there's no actual lesion that they can do surgery on and due to ongoing unrelenting pain he opts for the i get procedure that's his history i mean it's all consistent so why does the judge disbelieve him he obviously testify to restrictions that would preclude sustained work he has difficulty sitting standing walking trouble with his memory concentration and keeping up with a regular pace so the first thing the judge says is he doesn't believe him because his complaints are inconsistent with the object of that he has a brain injury he had it herniated this he has nerve conduction stud was i guess he was an orthopedic surgeon or something like that correct and he had an m r i that was objective medical evidence which seems to have been ignored if that's right  given the case law does that in and of itself mean we have to reverse and send it back or what do we do so once we find that in a o j fail to provide sufficient reasons for rejecting a treating physician opinion we have to see what the appropriate remedy is going to be in this case the record has been fully developed if we credit dr levine's test testimony is true he's clearly disabled there don't seem to be any significant inconsistency is that need to be resolved so based on garrison it would be an abuse of discretion not to we man this for further proof for a computation a benefit the only exception is if there is serious doubt a disability and this reasons for rejecting the physician's testimony and i guess so be glad to talk to the government about that but in this particular record there are state opinions w disagree with the opinion of dr law buying correct yes your honor so if there are state opinions that disagree with the opinion of dr love fine the only reason why the he had to give sufficient reasons for rejecting it and if he did use dr divines testimony he would not have necessarily come out where he is i guess my biggest problem with what you just said and that's the only reason i spoke up it doesn't seem to me that one can say there is no evidence in the record which would suggest that he should not be given or that he should yeah that he should not be given the benefits so what we're really talking about is if the ale jaish air when failing to provide sufficient reasons for rejecting the peace objective complaints we say yes did he err when he failed to provide sufficient reasons for rejecting the physician's testimony or if we say yes i'm not sure the argument about the chiropractors opinion isn't waived but even in those circumstances it seems to me that under our standard we would still remain and to have the ael jay look at this once again given that he can he has not fails to provide the sufficient reasons for either rejecting the plain of subjective complaints or the physician testimony and then decide what to do because there is evidence on the other side let me explain to you why that outcome would be incorrect  so when we look at an individual subjective complaints right let's assume the l j made mistakes and the company has to be reversed so what's the standard for rejecting an individual stated complaint here there's no evidence of milling it has to be clear and convincing if you find their theory inconsistency but that they're not clear and convincing reason as for rejecting a claim in subjective complaints there is no reason to send it back because they can't meet that standard same thing with dr levine so if there is no conflict in medical signs and symptoms which i don't believe there are then his opinions entitle to controlling weight let's assume there is a conflict in medical symptoms and signs his opinion is intitled to deference it can only be rejected for clear specific and legitimate reasons supported by substantial evidence in the record and if you look at s s r ninety six dish to p it clearly states even if a treating physician opinion is conflicted by other medical opinions the treating physician open in is entitled to weigh and that has to do with twenty c f r section four zero four fifteen twenty seven c which talks about the importance of the treating physician relationship and we look at the case of lester which talks about the importance of weighing a treating source is subjective judgements when we use the legal standards to evaluate this evidence there is no serious doubt a disability in this case well well and less examine this just a little bit let's just let's let's say that i agree with you that they did the female jay did not provide specific reasons for rejecting the plain of subjective or complaints it seems to me that one of the reasons in fact the big reason i might be with you on that is because there was no clear and convincing reason it seemed to me that it was just little or nothing in the record to support the claimants claims that's not enough if in fact there are clear and convincing reasons for the ale jay to make his determination which is something the l j can decide not me why is it that i am then going to say because the ale jay didn't provide all of the reasons clear and convincing the first time that he automatically gets benefits instead i should remand for the l j to say you didn't give us anything you better look at this again so when we look  creditors to rule and i'm assuming for the purposes of our discussion here we're going to assume that all the parts are met and we're only talking about whether there is serious doubt a disability and so again when we look at these subjective complaints if they're not because we've agreed the judge is wrong so now someone searching the judge just a minute we haven't agreed the judges wrong we've agreed that the judge did not provide that clear and convincing reasons he needed to support his findings correct the that's correct so was he that was the emphasis of my question i understand so this court routinely reviews those kind of decisions to see if a o j findings are clear and convincing under the credit is true will the courts really not supposed to go through and do this entire thing but i understand that the court does if you look at garrison and you look at burrell we're not supposed to put the court does but if so if the court's going to do that and the court sees conflict if it if in the court's mind it doesn't see it as clear and convincing and the beni key they're not entitled to just that we do they can't just say you know what we made a mistake we think an administrative law judge is in the better position to do this then  and as of one day after the primary decision and to remain in this for further proceedings i don't know how much good that's going to do because the courts where he's deceased now he fell down a flight of steps were right right but it may not apply to cousins things like that but yes i see i have two minutes and fifty seconds left i'd like to reserve it there is nothing to reserve numerous doctors who treated him throughout the time period doctor weighing is another one doctor stout i believe oh i'm sorry dr  basically the record shows that mr will your started presenting with complaints of back pain in relation to a worker's compensation claim prior to his alleged onset date in this case and he went to numerous physicians repeatedly throughout the relevant time period dr levine was one of those well just just to have just a second counsellor i was very interested what you would going to respond to dr kurt to what judge smith asked you it seems to me that there was at a certain date a stroke over the above forty they had before that stroke was january twenty two thousand and six the first time he saw benefits was after that stroke we didn't have anything to do with what happened with his back from two thousand forth to that point what are the doctors you're looking at which were it's treating physicians from the time he had the stroke until now ok so he the treating physician since the stroke right and he also saw as i point out in my brief one of the reason thiel tape gave for discounting dr levine's opinion is that his opinion was not consistent with the other doctors who treated mr i'm sorry mr well you're through the time period and there are others and what he was saying was that levine's opinion was not consistent with what the doctors and said before the stroke which which which to me was some concern or we didn't even have the stroke on the books when there we had these other doctors giving their opinion well you do have on the record him seeing dr wang after the stroke and you do have in the rector record him saying dr bard after the stroke and yatta after the stroke so there were number of doctors who were making findings and treating him after the stroke and their findings were not always consistent with dr levine isn't that right that's correct and i would point out that because the state opinions weren't even triggered until he filed for disability which was after his stroke right and i so dr kay all i believe dr kay i believe lifting as tolerated so there were other treating doctors in the record who had found contrary to dr levine and i agree with you on that i think there are a lot of other doctors and a lot of findings but did the a l j give sufficient reasons for rejecting dr levine's conclusions at the end of the day he really seems to me didn't cause he said there was no objective evidence to support it  and that clearly can't be right there are some objective items in the record that may not be convincing but he seemed to not and address them not deal with them well and then of course he rejected the subject of complaints  not that the l j found that there weren't objective medical tests of record to support some of mr well your claims that he he says the l j says quote none of the imaging a m d range of motion or other objective evidence supports such extreme functional limitations as dr levine set forth in his opinion that the individual could not even lift ten pounds which was essentially what dr lee i mean you know  you the other primary reason the l j gave for discounting dr levine's opinion was that it was inconsistent with his own treatment notes and his own examination findings if you look at dr levine streetman notes he treated  times and the only two times his notes show that he actually performed a full examination of mr well you heard one is march ninth of two thousand and seven where you know again after the well after the stroke you know and the commissioner doesn't argue that mr well you know it was incapacitated for his assessment that day was probable disco janick back pain right certainly back pain but if you look at his examination findings  an individual without limitation l j found that this individual during the relevant time period could perform a range of light work meaning he could lift up to twenty pounds occasionally and ten pounds rejecting mr well yard's complaints and again the l j rejected the severity of the complaints not that this individual had some limitations the old j found he had some limitations but the  found that there was a lack of objective manner of call evidence again to support the severity of his claim that set circular that's right but that is one reason under the regulations that j's can look at the other reasons were his or gave some inconsistent statements throughout the course of the relevant time period the first one of those statements he says he never made sense somebody well did it and he said may not have been accurate and he didn't say he third party state he says that now your honor he claims for the first time really in his reply brief that he did not make that statement but i would point the court to his district court brief where he says quote the cited report was completed by mr while you're at the social security local office and that's it supplemental of twenty nine which i filed so it's a district court he for all intents and purposes admitted that he made that statement but in he also claims in his reply brief to this court that the report in which that same in his complain the statement we're talking about is that he was almost bedridden certainly it was completed and signed by a agency employee but the statement is in fact written in the first person and he claims that it's written in the third person but when he claims that he cites two e r one thirty one which is was inconsistent with other evidence of records he reported to his for mental health providers that he guarded and swam he reported in other signed statements to the agency that he prepares meals daily for two to three hours did laundry vacuumed with difficulty cleaned for three hours per week went outside every day grocery shop once a week and could walk one mile so the real jay found that his statement that he was almost bedridden was contrary to other statements he had me both to the agency and to his providers and that is a clear and convincing reason under this court's law to discount his statement since i've addressed the man i call opinion and and the credibility all turn to the remedy issue should the court  disagree with the commissioner's position that the finding is supported by substantial evidence the commissioner's position is that the court should not credit either mr will your briefing was done in this case and under try cler the primary thing that the court should look at is whether there are any outstanding issues that need to be addressed before a finding of disability can be made and the commissioner said minutes that the reasons i've already talked about today are outstanding issues as i said some of mr will are treating doctors thought that the best thing for him to do would be to return to full duty work that entirely undermined dr levine's very extreme opinion there in consistencies in mr  williams statements so you can't just take some of the statements that he was almost bedridden and credit those when there are other statements that i have just stated that detract from his claims regarding this parody of limitations and also again the lack of objective evidence to support the severity of it his claim limitations so all of these facts raise serious doubt as to whether he is in fact he had issues but dr klein's testimony was so extreme that we need the white male day we should discount what other people talked about was war in accordance with conflicting stage and see medical opinions so those opinions are from physicians who never treated and never examined mr will you now if we look at the case of wound i do have that cite if you need it says that treating this type of an opinion as an opinion is strained it's hard to imagine that somebody can look at a medical record and they didn't look like very very much of the medical records i mean be sure and i think you're saying that with the exception of dr love buying that the other physicians who will pine never actually dealt with didn't see a physician or what are you saying ok so the judge gave great away and i'm worried counsellor i mean i'm worried that you're spending a lot of energy on those state doctors when what the government has said is there are treating physicians who are treating physicians just like dr love blocked or levine who and dr levine's premises or his to conclusions disagree with those treating physicians ok so let's  their core and that therefore we are not just grant benefits ok so let's focus on those particular opinions none of them say the kelong he can sit stand walk lift talk carry and there's just that one line in one report that says that he should be able to return to work that's all we're looking at well doesn't many of them have no objective findings at all that that's the problem they examine have nothing there we don't find this we don't find that we don't let me address that ok because it's the lack of objective findings that they're citing to claim full range of motion lack of reflex loss things like that but what we know because nerve conduction studies don't walk is that he has nerve involvement of the cervical and the lumbar and we know that can cause pain but there's no doubt the man has pain in the question is the extent of his disability is the verity of his disability what these other folks are saying with these objective tests is he may have pain in fact they're prescribing pain medication but they're saying he can do this and he can do that and you know if what he still can do is important if we if we agree he has pain yeah that's right then you cannot just reject evidence of limitations based upon a failure to have that and it's extent of limitations right we can't reject the extent of gannett are lester warned that we can't just say because of the objective evidence we're going to reject this because then what's the point of having a treating physician what's the point of getting claimant testimony once we the case is call it excess pain claims if it's believed that he has access pain which i don't but if it is then we have to find other evidence in the record to substantiate it we can't just look at the objective data it i mean that's just just how even though the regulations state that if you look at fifteen twenty seven nine or if you look at s s r ninety six dish seven seven p it all says the same thing you cannot do that and so you know i want the court at least to keep that in mind the other thing i would get ok really quickly so the judge had him that like if he was  sedentary he would grade out based on the second judge's findings and be entitled to his benefit and then obviously there's a skill issue which we brought up but i'm not going to discuss that now i would just i would just highlight the note that there is no evidence of exaggeration of this man went through a lot sending it back to further proceedings when he's already been granted benefits and he's deceased just seems like it would be futile and i would point to the bennett key on those points thank you thank you