please the court my name is mark caldwell i'm here to represent his west this morning in the social security disability appeal i will try to keep track of my own time but i'm going to try to keep about five minutes for rebuttal if possible depending on how many questions like this case can be resolved on the medical opinion evidence issue and that's the issue that i'm going to  focus on first it is the agency's own examining physician upon whom i rely in this case for a finding of disability preferably of course remain forty termination of benefits rather than for further administrative proceedings since it was of course the agency's doctor who found the claimant effectively disabled coupled with the vocational experts testimony of course instead the l g in this case reached back all the way to the initial determination two plus years prior to the decision to a non examining physician who was not aware of the very significant results on that cervical m r i which the court is well aware that appears at one six four one two six t one the opinion that not examining doctor standing alone which it does is not substantial evidence under this court's precedents number two even if that opinion were to be considered substantial evidence the precedents of this court and he concedes only regulation at the four zero four point one four one five to seven indicate that greater weight should be accorded to the opinion of an gryphus opinion to take precedence over that of dr drinkwater's assessment based upon his own examination let's also keep in mind that dr drinkwater although he did quote the  dysfunction so just because you have a high i'm trying to if i want to phrase this just because you have non non substantial evidence stacked upon other non substantial evidence doesn't make  substantial evidence well i guess i looked at it like this i mean the doctor is a drinkwater i am sorry if i get the doc employers examine yeah no but that's the doctor that says boy look at the samurai and this is very abnormal it's clearly consistent with the other things i'm looking at and what the l j ended up saying in the key finding was there is no support whatsoever in the record for that conclusion at the m r i you know it was very abnormal right so no don't know i understand and that is why it seems to me that's the strongest argument you have for why we should reverse right i follow that but in terms of why we would remand for a ward of benefits when and when perhaps there are there is other evidence in the record that the l j just simply failed to cite that might have supported the statement that actually the finding that the m r i itself was very abnormal is just not supported i don't think under this court's precedents the a gets a second bite at the apple simply because she nord significant evidence in the file the best case and that is the recent harrison case where the court said you and me of g ers by simply ignoring evidence greg yes that's it that's the separate issue from i'm certainly willing to discuss it and so i did specific instances of demeanor and inconsistent statements what your take on that i didn't see here demeanor so much in  g s decision but she did talk about some and inconsistent statements and some of them were missed characterizations and some of them were relevant for example g said she did not give of full effort on a psychological examination that she was undergoing for purposes of a trick surgery that's not true it's just quite the opposite that she didn't try to herself look worse she tried to make herself look better because she wanted that surgery she wanted to try to improve her medical condition to which i think she should be lauded why wouldn't that reflect negatively on her believability as to all sorts of other matters of doesn't strike me as an unusual finding in the least he lied about something ok sure you tried to make yourself look better but lied and now i have reason to doubt that you're tell me the truth about something else when it's relevant to you getting something that you want one the the standard here is clear and convincing reasons based upon the entire record isn't whether you're an eagle scout you know that he was not seen in cast the first stone i suppose you know have any of us not  fudged something to get something we want does that mean we are liars about everything that we ever talked about no so i don't think that's not the only liar inconsistent statement that they're able to point to now she  did point to other ones and i will i will say this to you some of those in consistencies are bizarre but they're relevant she said she wanted to move her to be with her family but she wanted to be with her husband well last time i looked your husband was your family  she said she wanted church at one point in time and there's something in the record that she went to church in another point in time under the same case that i cite in my brief there has to be some relationship between the inconsisten to obtain benefits in this case why there would be some inconsistency for example about sexual abuse that i can understand i can understand a person not wanting to talk to somebody about sexual abuse in the in the treatment record where she  to why this is not the point the judge watford is making if you have multiple inconsistency it is either because the person is lying or because the person is simply unreliable either way it means to have to totally discount or you could reasonably infer if there were enough i can't rely on this person's testimony whatsoever you can't just rely upon testimony in some respects that doesn't mean the person is not telling the truth about the severity of their medical condition in consistencies and that occurs even when perhaps she doesn't have the same motive to lie in a situation where she clearly would have a boat of to lie where she is an interested party then it's unlikely that she is giving reliable testament well i think what i'm trying to get the focus here is on her testimony as to her medical impairments and let's not forget  dr drinkwater and then very rural m r i we also have some pretty bizarre things in here she shaved her head to try to get rid of her headaches when she went to the mental treatments that are they said she had major depression with psychosis  you know people with psychosis are not reliable and i am not trying to defend some of those inconsistency is but i wish him well what i'm getting at is this are you saying that regardless of her testimony even if it's assumed to be totally unreliable you still prevail because of the other things you but this is scuffing or are you saying that the that we should treat her testimony about her  she's she's an unstable woman who is giving some inconsistent testimony about or not testimony inconsistent information on your belive it matters for reasons that i don't know either but when we look at the one certainly one last thing in part part of the finding when the l j is discussing dr drinkwater to me and gives a number of reasons for discounting dr drinkwater's statements the she makes the point that the limitations that he posited and she doesn't make this point but i'm adding the limitations that your client testified to are so severe that they would require her to claimant to be merely confined to a better wheelchair this is not the case because she is walking thirty minutes two times a day in addition to other activities so what about that is the initial premise that's incorrect that the limitations that d drinkwater gave triply were standing walking for two hours and sitting for four hours were so severe that a person would be in a wheelchair that's just not true it's facially incorrect the limitations d i want to start with credibility in this case why why don't you not start with credibility ok now it seems to me the much more difficult problem for your client the commissioner is the jay's failure really to even acknowledge that there there was this ok so dr phil did not have did not have the m r i in front of him when he looked at it but his opinion was consistent with other evidence with that with the records the whole if you look at all of them going on do you agree that the l j relied only on dr farrow because if so then we're not in a position to say oh well you know step in sending the wrong doctor but we can look at all these other doctors right we have to just that yes we would have to send it back right but they also found that the objective findings from dr griffiths evaluation supported the residual functional capacity although dr riveted assesses sedentary residual functional capacity they as they specifically noted findings within dr griffis review that also supported rejecting dr drinkwater's getting the name right conclusions didn't even acknowledge that the m r existed and had you know then made the statement that there's absolutely no evidence in the record to support drinkwater's finding that he actually just misquotes it says you know very abnormal findings what would dr drinkwater said was a very abnormal m r i and that just never comes to grips with that at all so i don't i guess i'm not sure how right so that's again why sure you might be able to point to other doctors and i'm not sure that they were actually examining that m r i for the same purpose but even if they were if they'll jay didn't rely on them and in her decision and as in our case law say that we're not permitted to look at them i mean you look at the record as a whole and whether or not it supports the elegy decision and here if you look at the reasons that the che guevara that's what i'm saying tell me if i'm wrong i understand our case all to say that we look at the four corners of what the and then also noted the doctor drinkwater's examination findings didn't support what he has us dr drinkwater himself observed but wait we would if dr drinkwater says that this m r i is very abnormal right it seems to me that would probably support the findings he goes on to make if the algae doesn't in any way contend with the his conclusion that the m r i would itself was very abnormal then i don't i don't know how how you cocaine you make those i think it also doesn't affect you know the t and dr drinkwater's own exam showed that she retained normal tone normal strength normal sensation and functional range of motion her legs he also found some decrease strength in her arms but notice that she quote gave way too easily which may be a sign she wasn't giving her full effort and that she retained full sensation so low council relies on the reflexes there's other him there's other evidence the records showing that this wasn't a significant they also found that although dr drinkwater noticed that she had detailed they also observed west was able to walk for thirty minutes twice a day is exercise in addition to all of her other activities which also contradicted the extreme limitations assessed by d drinkwater so i think you know going back to the credibility here you know she's asked that you credit her testimony is true but if you look at as you're pointing out all the reasons in the record there's multiple reasons why she's not a reliable source of information and you just can't discount these as irrelevant the l g found that she was not that she quote may be prone to give untruthful or incomplete information order to get something that she wants which i think is clearly demonstrate in this case she provided various different reasons for why she was not working in january two thousand and eight she stated she was fired from her job or quit due to conversation but in november two thousand and nine she stated she did not work in order to stay home with her two children even though the records showed she didn't have custody of either of her children and at the hearing she claims she was unable to work due to back pain so these are all you know they're not relevant it's going to wire why she cannot work and she's providing multiple reasons for why she can't work none of which are supported by the record supposing we were to determine if we look at dr griffiths statement that she remains capable of sedentary work west is only thirty eight years old that means we can remain and you know we find she's capable of sedentary work and then we require additional vocational expert testimony on what kinds of sedentary remain for further proceedings because there are different differing opinions that go to that need to be addressed thank you for the question no i don't think so thank you very much for your argument why don't we give him his counsel three minutes for migraine headaches those are not mild findings regarding compression of the spinal cord itself those were the very abnormal findings so i think that has to be kept in mind in terms of  consistent with the l g s determinations factually incorrect dr griffith himself true as to credibility i don't want to go on and on and on about this but please be reminded the standard that this court requires is clear and convincing reasons based on the record as a whole there are some bizarre inconsistences do they have anything to do with the fact that this woman is medically disabled no they don't she she obviously testified correct yes at the hearing yes or any of the inconsistency as the age of three pointed to within the four corners of that testimony  no inconsistency is in the testimony no inconsistency inconsistent he's regarding her medical condition that's what it was absolutely ok note no inconsistency is there now let me ask those who knew the same question the judge hawkins posed to your opponent let's say that we would agree with you on the drink water pinion but they all share their butt but that they did not i didn't give a clear and convincing reasons for finding your client not credible you would agree i guess that we could not just remand from what about it's right we have to remand for the perceived i wouldn't even go i wouldn't agree with that i'll tell you why there are there are cases from this court that say if a doctor relied upon the claim reports of symptoms and then the claimant was not credible regarding those reports that's a basis for either affirming or remaining for further proceedings that is not the same as what we were looking at here at all there isn't a shred of a record evidence that would support the idea that dr drinkwater was relying upon any inconsistency reports given by ms west i just want to end by making this point how many times has this court heard the commissioner argue that we sent the claimant to a doctor the doctor did a thorough examination and based on that the claimant is not disabled and on that basis this court should affirm commissioner can't have it both ways ok thank you thank you counsel the case just argued will stand