found that she was incapable of performing her past work based on diabetes related impairment as well as other impairments including psychological impairments but found that she was capable of performing one in only one job otherwise in the national economy and what is our standard of review in this case well the standard of review is  the district court has to review the agency's decision and determine whether its conclusion as a whole was supported by substantial evidence in the record that's exactly right it's a it's a reasonable reasonable person test or what a reasonable person would would would base the conclusion on and we are arguing that there are are three main reasons that reversal is warranted  but going back to your question about the reasonable listen the substantial evidence part of it those reasons have to still be supported by substantial evidence and and be reasonable what you want you mean by you know if if i say did well i heard him say it this way and it is reported should it different way if somebody's going to say well no that's not reasonable you can't weigh those two different facts against somebody well i don't understand your point well i guess the point is that the court is permitted to look at the at the facts and to terminate whether or not the the those reasons were fact based on substantial evidence whether there whether they were reasonable or not it was to turn we judge the credibility of the witnesses nope your honor i don't think that the court here is is required to to judge the credibility it's only t button of the l j on this record come up with a negative credibility determination wasn't there a sufficient basis for him to do it argument is no you know let me cite you to two things yes or and tell me why they would not provide a sufficient foundation for the hail j to say i reject her credibility regarding noncompliance with the treatment that was a big issue in the l j said that miss christmas testified during the st hearing that she always takes her medicine for diabetes but he said the records particularly those submitted between the st and the nd hearing were bought the claim and show substantial repeated noncompliance with the treatment  and while financial difficulty might be an explanation for it it didn't explain the inconsistency is at the hearing regarding her compliance and the objective medical evidence that showed repeated noncompliance could not be ale j have a seized upon that which she obviously did and say here is one clear and specific and important instance where her credibility really was undermined yes you know i think there are there are two reasons there are two things i would like to address about that if i make sure number one it the reference that the l j made with respect to always taking the medications it was response in response to her attorney is the claims attorney's question at the hearing   that is something that it's really unclear whether or not she was trying to purposely mislead the court in fact it clearly wasn't if if you look at that because the there is not a serious saying the conflict wasn't clear enough from the record to support the finding it absolutely wasn't your honor and if you look it's a very vague reference and there's no other treatment provider that even remotely indicates that that she was doing it intentionally or trying to mislead well what about the fact that she did she told the providers that she didn't used to bacco but then told the consultant position that she's been chewing tobacco sions age seven well is that not true or false for him between it's actually it's actually incorrect  used to back or didn't know are are told that she told the providers that she never used to back oh it's consistently in the records there's maybe one on one single record it might have been when she  started treating later in the relevant period or relevant period is beginning in two thousand and eleven but there's a record in two thousand and thirteen it's one maybe an it might have been the very st visit at the clinic where she treated the leaf physicians group where they indicated tobacco use none but if you if you look at all of the rest of the records there they all indicate she doesn't smoke but she uses snuff is what they indicate that's in every single one of the records and that's consistent  can't do anything yet she also admitted to cooking and doing other things like that well that's that's what the l j did kind of pick and choose out of the record but if you if you look at those same records they all have kind of a qualifying explanation about it and that's one of the the nd part of the argument i want to address with judge mark of two is that whether or not the judge had enough to to me used enough  in out of the record to attack her credibility is still have to be specifically articulated throughout the decision and that the the law does not permit a judge to just pick and choose out of the evidence to the exclusion of evidence that actually supports the claim so and along those lines i did want to move on that point errol jay said among other things that the claimants activities have a time span greater than what she generally reported and the record shows that she told dr mousavi she was able to cook and clean but in our function report and that the hearing she said she was unable to do household chores and that her children did them for her again there may have been  references that on the surface appeared kind of contradict each other but if you if you look at those same records that that were used in the in the decision  those records again again big qualify each statement yes i could there yes i do laundry but but then it's usually followed by a statement about how my kids do all of that i live with them  reverse in this in this case because the judge it jav hearing it he really was making a credibility assessment on this particular issue he kind of made a mental health assessment of his it actually i believe supports it the claim to she does go places but if you look at the record it it's on it's occasionally she would generally avoid trying to do those things and this is one of those times and by by allowing the l j to conduct this kind of sit and squirm announces it it really discourages claimants from from well st of all if it encourages them feign or exaggerate symptoms that he area at a hearing but even worse it may discourage them from even attending a hearing out of fear that they don't look disabled and in  certain cases the courts of recognize that a judge is observation and he'll do his observations at those here if they're there they're something that can be can be utilized but this is different this is this g s about that is necessary here i see him at a time thank you very much taki when they all j noted that claimant had a history of uncontrolled diabetes due to noncompliance with treatment he had more in mind than just diabetic medication he emphasized that claimants medical providers repeatedly and strongly recommended the no cost measures of improving her diet exercising and further controlling her weight and claimed failed to provide evidence that she followed those recommendations indeed j subjective symptom of violation of credibility determination should be up held because he gave several additional reasons including the dept of medical evidence claimants history of inconsistent statements and her activities  daily living as this court noted in mitchell subject of complaint findings of the province of the l j and this court will not disturb a clearly articulated finding supported by substantial evidence this co jase step five determination that there was other work that claimant could perform given her limitations and locational profile under the regulations the commissioner at step five is required to come forward with a significant number of jobs in one or more occupations which is what the commissioner did in this case consistent with the regulations this court has concluded this was an alan on page twenty seven of our brief that one occupation is enough one occupation with a significant number of jobs in the national condom e is official to support an l j step five to the council and that were in that regard under washington which and there were an apparent conflict between the expert and well i would say that with respect to the two limitations at issue tandem team work occasional tandem team work and the production pace limitation that they hail j fulfilled his duties under s four p to identify apparent conflicts and resolve by presiding over a hearing where they all j and the plaintiff's attorney ask probing questions of the ve about each of those limitations and whether or not they were precluded by the d o t description of the job and in both cases the ve said not no and and if i could turn st to the occasional team in tandem work they as necessary you reroute the folks from the fruit to maintain adequate supply to each packer now the d o t job description does not specifically address team or tandem work so it would be reasonable i suggest to say that it does not seem apparent that there's any inconsistency between the limitation to occasional or tandem work well is running on the record that supports that argument the record supports the argument that there it was team in tandem i'm sorry i'm sorry are you suggesting that the record supports that the job of the distributor requires team in tandem work teamwork and the ability to control the flow and that would suggest speed right and this woman didn't appear to be able to do something like that and i believe the argument goes well we would submit your answer the alienation is well i'm just relying on the experts no i don't think they do any job tasks requiring team work or working with that individual stock to in time require team or if you're if you're directing flows to keep packer a fill with fruit didn't look over there well then the for the st distributor failed to do her job one center job requirement as a job requirement but it's not the the comma saying the task of monitoring the flow of fruit does not involve being with any other person as is done job done by the single person so in that sense it's not team it's also not tandem because the dictionary back definition of tandem is that when something is done in tandem with the person the people person they the two people are doing it together they're working together as in for example some fast food jobs and not only did the ve and he's an expert and they all j has a right to rely on the expert testimony the if it's reasonable not only do the say no i don't think any of the tasks of food distributor involve teamwork that is they're not really working as a team with the packers yes they're part of a group that's a upon further questioning the fees stated that he did not see any language in the d o t that would indicate team or tandem work was involved in the position simply put ten in conveyors to distribute citrus fruit to packers workstations does not require that the person directly work with the other workers and contrary to claimants suggestion in her brief the judge the o t job description does not indicate that there is even frequent communication between the fruit distributor and the packers in fact the position in the d o t the d o t description of the position says that no talking is required to do the job there is us ample support in the record upon which this court can conclude that they all j fulfilled his duty under as a start four p despite not having discussed and resolved the apparent conflict in the decision and i would say that if the l j erred in any respect thus he could proceed by relying on the v a s testimony now they all j should have in his decision articulated that identified the complex and explained how he resolved it but this case is on four squares with oh is it which is a recent post washington decision of this court that was the subject of the commissioners nd letter of supplemental authority in that case the claimant was limited to occasional interaction with the general public but if he said that the person could do a job called the sales attendant job but if you look it up in the d o t it says that that job requires this court held unlike in washington that the failure to do so was harmless because the record shows that there was a colloquy with the nd v which shows that they acknowledge the conflict and resolved it by asking the v a pointed questions to clarify the level of public interactions required of the sales attendant position it turns out that the sales attendant position was it was it was the person who would go into changing rooms and pick up clothes that had not been purchased or my direct a customer to a certain or the store but they did not have direct communication with think the customer as behind a cashier for example and the court said in zaslow because there was ample support of the record on which this court could conclude that l j complied with his duties the cook the decision could be affirmed likewise in this case the ve clarified the extent of coworker interaction required of the food distributor position and stated and that he stated that he did not see any language in the d o t that would indicate team or tandem work the l j thus can rely on that expert took his his duties seriously because at the very st page of the decision he states that he has a duty to identify and resolve conflicts per as our four p and at the hearing he  a about production and paste requirements and the ve said the d o t does not address production and paste requirements and because we submit because the d o t is silent as to production and paste requirements there can be no apparent conflict between the testimony and the d o t courts other courts have held that if the d o t does not address a particular subject there can't be an apparent conflict for example the th circuit included that because he does not address sit stand options it is not apparent that the viz testimony could conflict with the d o t that's clarify the production pace requirements of the job and the fees said that this was an unskilled job and unskilled occupations typically do not involve paying the employee by piece rate or on the amount of production therefore the court could conclude that the l j resolving conflict between no high paced production and this deal and this job because he identified the conflict at the hearing i'd like to now turn to one occupation as one occupation enough in this case it is true that the identified only one occupation but the regulations state what occupation is enough work exists in the national  condom me when there is a significant number of jobs in one or more occupations this court has concluded that one occupation with a significant number of jobs in the national economy is constitutes substantial evidence now the v a in this case testified that there were forty thousand of these foot distributor jobs available and the national khana me which is a significant number in unpublished decision of this c cited a page twenty seven of our brief this court concluded that twenty three thousand eight hundred jobs in the national calming was a significant number like to say a word about the demeanor if i could  all j gave many reasons to support his credibility determination and one factor he did take into account which this court in nora's said is permissible he noted personal observation in freeman that the sit and squirm test involves an a l j subjectively coming up with his or her own index of traits for what a disabled person with these certain conditions should look like and when  look like that at the hearing they say well they're not disabled that didn't happen here they all j simply noted in response to her allegations of not being able to the around people at all that  she was able to sit at the hearing with and with no difficulty and that was in the same sentence where he said that she went to church she was out in the community should when shopping with her daughter and that kind of thing are there any questions further questions before i get my final statement thanks very much i just wanted to add i was sure as i said they have a decision this case should be seen deference because  careful and thorough evaluation of the evidence shows that he followed the regulations in reaching his factual findings moreover the threshold for evidentiary sufficiency and social security cases is not hi evidence exists in the record to support the l g s factual findings and therefore this court should affirm the judgment below thanks very much honor just to just to briefly address mr winters argument about the credibility or that noncompliance issue with respect to the education in the diet or whether she failed to follow the diet there there is again this is this time period from two thousand and eleven basically through two thousand and fifteen and she was provided with some education resources that were handouts mostly if you look at the record  suggest that it would restore her ability to work maybe it would help her health that's another question but the l g a did not develop that adequately the next thing with the with the commissioner's reading of of washington and clearly articulate the reasons why that or how the conflict was resolved here i mean if you look at the plain language as judge kelly was pointing out  it not only talks about the primary duties that someone's regulating the flow of work they it also specifically indicate that it's doing it's regulated by the packing speed of each worker it specifically addresses that so i mean arguably that this conflict is much more apparent than it was in in washington if you look at those two documents right next to each other the conflicts really it really just kind of jump and other things that were were essentially precluded by the r f c but again that the l g really did not specifically identify all of these conflicts and resolved them rejected the psychological examiners with respect to observations that that that she had made that was in one of the psychological reports that i see my time is is out so thank you thank you very much thank you both this court will be in recess until nine am tomorrow morning thank