good morning your honour's jesse kaplan for appellant or appellants it's hard for me to know where to put my finger down here but let me put it down on the fact that the headache form filled out by mr brancaccio is treating physician switch would result in disability was simply not mentioned in the administrative law judge decision i don't know how you can ignore that and then of course there are a number of other well a few anyway other forms which also were not mentioned but at least to some extent the decision might be said to respond to but i don't know what you can say when you have a treating physician form provided by the state agency designed to elicit the kind of information that's needed to make disability decisions and it simply is not  addressed i think their argument is that it doesn't constitute a treating physician opinion within the meaning of security law yeah what's your response to that well i disagree it says that he has headaches two or three times a day that they last for two or three hours and i think it also has a box that says they prevent his ability to work so this is exactly  functional capacity the opinion for the impairment at hand it's it refrain from addressing the old timid issue of disability which is another standard objection that the doctor just says well the patient is disabled no this gives you the information you need to infer disability those are specific limits and there's objective information associated with it also photophobia phone a phobia or whatever else is on the form it's a form designed it's a form provided by the state agency designed to elicit the kind of information that is needed to make a disability decision regarding headaches that's also potentially even a step three issue  there's i thought about trying to count up the number of errors that are arguably present in the administrative law judge decision and i think it's easy to feel that there's you know to try to rehabilitate the errors and some of them may be rehabilitated balt but and i think part of that is that there is a natural inclination to look at the residual functional capacity found for mr brancaccio and look at his age and say well you know this was a very generous residual functional capacity been unfortunately he wasn't found disabled however that residual functional capacity comes from the consultative examiner who did not know really what was going on with m reserve two minutes i guess looking at the clock right here but the other way of looking at that i shouldn't be interrupted myself right at that moment is that if if mr brown car show came this close to being found disabled so to speak by that consultative examining doctor without that doctor knowing what was really going on with his back then any you know then he probably should have been found disabled it's hard to believe that the doctor's opinion would not have changed if he hadn't known the rather alarming information that imaging evidence actually gives to know what do you ask us to do to contentious issue right now in terms of exactly what you're supposed to do and in reviewing the overall evidence of the case but i think i have to stand here and tell you that form says he's disabled support your argument well ok there's no countervailing evidence in the record regarding his headaches and in fact if you look at the hearing testimony mr branc testified about his headaches and he testified very closely with what that form says so there's no reason for serious doubt about his head to be found in the record use the standard language from garrison i don't know what else to say i realize that there will be a certain reluctance to re man because of headaches but headaches get short shrift in theory headaches can be a step three basis and the evidence is even there for that the and now the standard analogy is to the one of the seizure listing criteria when by by way of analogy i'm looking at dr mcalpine opinion and it says that the headaches interfere with his ability to what is it about this form by itself that compels that conclusion such that the remained for an award would be appropriate rather than remain and for your further consideration by the vocational expert well i think you're correct in so far as there is no legal authority no social security ruling nothing that says well if you can't work you know a quarter to a rd of the work day  that you're disabled so you know that's a scandal standard form of vocational expert testimony that gets people disability benefits i suppose you know it it's common sense i guess my time just expired but there are there does remain what i just said the step three disposition based on that it's well within the that's where you are you know i guess you could reason you could write it if you were an administrative law judge you could write a decision with reference to that to step three to the seizure disorder listings and then say but i'm deciding this at step a opinion but it was not probative because it's not supported there's just no backup in the record we need to rely on objective evidence over time to show that he had disabling headaches for at least twelve months are expected to last for twelve months mcalpine form is very sparse he doesn't provide any narrative he doesn't provide any information about what it means to say that he has headaches for two to three hours a day and that it interferes with his ability to work we don't know if he could do some work during that time it's just a question and looking back into the record we don't see any headache logs we don't see treatment over time showing that he continues to complain of headaches we don't see what treatment modalities of anything were tried over the course of time and in fact there are patients in the record where he denies having headaches so we don't know that it's consistent and persistent such that it would be disabling and without that information this opinion the single page on it's own is simply page eight of the l g s order just the last sort of full paragraph before arabic six finally given the claimant's allegations are you with me yes of totally disabling think that means to say that that form doesn't provide anything specific it doesn't provide like if you have a headache and restriction typically it says for certain part of the day at work he can't do complex tasks or something like that and there's nothing specific like there it like that in there and i think that's what he meant when he and i think your suggested reading is possible but in the absence of any mention of anything disorder leads me to think that he might have just missed it i guess it's possible that he missed it but that's not how i read it because he is  generally speaking when you have an opinion and whatever far from a treating physician you have to give specific reasons for rejecting you've given us some reasons for rejecting it today but that's not in the l j find it no you just you're right he doesn't rejection of a treating physicians opinion without sufficient reasons and it seemed like the court was saying they're sort of a scale there it's easier to find a harmless error if it was less consequential and without any support at all there's really no treatment rec mcalpine supporting his own opinion and there's no narrative in there and we don't really know what he's saying and i would argue that it's not using a form that was supplied by not his office somebody else expect so he says he hasn't worked for two years agrees it doesn't say there are he's an imposing restrictions on activities so you can't work as well he says that he has i think when you look at that form it says he hasn't worked for two years they're asking him to estimate how often it interferes with his ability to work and he's basically saying i can't say because he hasn't worked for two years we know he hasn't worked for two years that's why we're here trying to determine if it's because he's disabled or you know if that justifies it award benefits s totally disabled you know they are mean and it was one your can read it that way and that's not how i read it and i'm actually not clear it doesn't look to me like an agency form and i had read it like that and i'm not sure one way or the other whether it was i don't know that that matters actually to the decision at all but i just i'm not sure that's the case i also do you have any a for the questions on the headache issue before i move on ok i wanted to go back to what council was saying about the c e the c e consultation exam by van kirk is the most probative evidence we have in the record  before the decision and he tested the claimant's functioning notwithstanding the limitations of the claim it has and i think the council is arguing that he should have looked stenosis and significant changes in lumbar spine and he didn't have that in front of him but he was actually examining what the claimant could do and that is what the l g has to determine to find if the person is disabled what he can still do despite having a severe lumbar impairment and he saw that although he walked slowly he could do all the tests and that he had normal motor strength no weakness and normal neurological testing and based on all of that information he drew the conclusion that he could produce perform a reduced range of sedentary work you let me just remind you that this isn't the only treating physician forum that was totally ignored by the decision actually it's just the one that can result in remained an even remain for benefits which we've already gone into but there is the d m v form that was filled out which talks about problems with the lower extremities in order to get a d m v placard there's a state disability form and there's simply i mean i argue about some length about what a medical opinion really is and who is entitled to give it but the form doesn't place any restrictions on his activities you're talking about one of the another of the other forms on i'm talking about the primary farmer talking about the headache for i mean it there's no he's restricted from x y or z you know in all my years of practice and that's you although i've never actually dealt with the concept of headaches or approach headaches from the perspective of being unable to deal with complex tasks that there may be a reason for that because that's not going to get you disability benefits ordinarily unless you're into a higher you know one of the favored age categories and you have you know skilled or semi skilled work background and things like that the standard doctrine including in social security's own information about how to analyze headaches is i say th e analogy to seizure disorder and a percentage of the work day and work week and so on that you're not going to be able to to work  evidence do we have about the nature of the relationship between dr mcalpine and your client well there as he was his treating physician before he went as i read the record and one of the things that i say should be should have been construed as an opinion although it has no specific functional limitations with the flowery language for riches even in the excerpts i presented about this is a very young man with just so i forget exactly the language but just a orrible looking set of m r i isn't so on and we're going to do our best to save him without putting him through surgery which if i can i guess i do have a little bit of time but if i can overhear oh here you're a man of forty or your time oh