whenever you're ready good morning i mean please the court my name is a tiny cast me on it and i'm representing chisel waterhouse in this appeal waterhouse has already been found to be disabled since march twelfth two thousand and as a result of the functional effects of her many impairments so at issue here is whether or not she was disabled prior to march twelfth came and for her she was alleging an onset date of july thirty first two thousand and nine and that the truth be told that there's there's not there all there's not a lot of evidence from two thousand and two thousand and ten because she did not have was not getting medical treatment  not entirely clear what they thought should be i do you think we ought to make it well we have to pick some we do we do i think that the evidence what happens here is there's there's evidence beginning in january two thousand eleven when she went to d v r to try to get help to see if she could find something kind of work she could do and the counselor basically said i don't think so and i sent and then sent to ron to apply for state disability which she did and we've got records from june two thousand and eleven when she started seeing a margene fields with her was her treating nurse practitioner she felt that  the combination of her impairments were disabling very as of what date march well there at the first day that i think is relevant is january two thousand level one doctor i got that one but yes the next one is june two thousand and eleven sorry ok thank you when she saw margene fields  and then by october two thousand and eleven she was i mean you read the file there were some really unfortunate things going on that were making her extremely anxious and and that was an ongoing huge problem for her making her just very fearful and that's well documented in the records she was getting specked counseling starting in october thirty first two thousand and eleven was the first time she saw  support that is all the cases that say with regard to crediting evidence is true if the evidence was discredited and if you credited as true the evidence prior to january two thousand and eleven were not there you can't i don't think you can point to medical evidence at that point say well look you can all we have at that point is her testimony and her mother's testimony once she and so it's it is once again this is why i was started by saying ideally the l j would have done this but they don't seem to be willing to and and so the reasoning that i guess that's why i was stopping you i'm not sure that i can do that i might be able to send it back to the l j and say  you made a mistake as relates to what you did with dr lyon or you made a mistake as what you did with the witness's testimony where you made a mistake as to what you did with the non physician providers so go look again and find a date rather than me trying to make it big here and i understand that predicament and i agree with you that that's a challenge you do have the ability to do it if and as an example if you look at  leighton's report for example he's or treating rheumatologist and he says further he doesn't make it clear that it's for the entire time he's been seeing her that's one of the shortcomings in his of his opinion but he us to rely upon but because it's pretty unusual for us to be even going down this path we feel i feel like a fish out of water and asked me to make a finding about an onset so and you started the argument by saying it's not a lot of evidence during this period i'm saying that there is not w thousand and eleven but once you get june two thousand and eleven where the treating nurse practitioner felt that she couldn't work and and then progressing from there the evidence just continued to demonstrate that  at data's found earlier is clear error is is that you're not supported by the evidence yes excuse me the alleged onset date i think her alleged onset date and l j could have ruled that she was disabled back to alleged onset date but i would not asinine yes as you could have ruled that way based on the comment he shot doesn't meet your burden so based on the combination of the medical evidence and the testimony but i  not going to ask the court to ferret out to to do the l g s job basically because that's what you would have to be doing and i hear you now most more than half your time's gone so what are you asking us to do please i am asking you to find her disabled at least as unable to work i don't find any inconsistency here i mean i'm trying to figure out why i do find it good i do find is the ale j does in consistency between the treatment notes the opinion is pacific and a legitimate reason and when evidence is sceptical to more than one rational interpretation we have to uphold i think the answer to that is that dr layton as a treat his opinion in his opinion letter and and that addresses why that i think is the final word from dr layton on what has been going on here oh i just have to ignore all of this i mean the he said that's exactly where it is so i'm just going down through these i mean waterhouse activities were inconsistent with the ladies assessment that she could perform light work how i guess i'm trying to figure out why is that not so well it's unless i look at rebels the rare hill which is our recent case exactly seems to discourage this is a reason so i might be able to throw it out for that and but what person not credible in their description of all these problems that they've been having for years but then i as an x date suddenly they're credible so if in fact there are some parts of the specific and legitimate reasons for discounting the opinion which i found to be legitimate do i affirm the l g a even if i can't find all of their opinions or all of the reasons or not no because  j says feels the count was inconsistent with the overall medical evidence of record discussed above including her rather benign medical treatment notes and medical evidence showing that the claimants pain and respiratory symptoms improve with medications that's absolutely germane and therefore satisfactory and so therefore i don't know why i wouldn't discount all of those non physician providers well for one here it's it seems like what the ale days done here and there's supposed to be a value in the evidence weighing the evidence and what they've done instead done instead is just come up with excuses for rejecting every treating and examining opinion it isn't that called an assessment of the evidence and the coming to a judgment about whether to believe or accept that evidence how much weight to give and that's the job of the a o j and frankly this  about as there are a and opinion from an a o jury as i've seen in a long time well he's the job of the l j but there are reasons have to pass muster they have to be within the legal reasons that are acceptable which ones do you went beyond the pale here i'm having trouble understanding from your brief what you really think where she went off the rails here i think she went off the rail on that way but on dr her many times and was able to reach a conclusion about how dysfunctional she was as a result of her mental illness those accounts of your significantly over here i am thank you very much all right you can just finish your answer when you've done with that answer to that and convincing reasons there's no question that water out testified in consistency in consistently regarding your educational history and i do know that seems to me to be a clear and convincing testimony about the g e issue which is even it's a red herring it doesn't even affect anything in the actual analysis here it does affect something because at this point you're trying to decide whether she's credible or not and she gave inconsistent testimony beside about that if i disregard all arrests and frankly rebels gives me the idea that maybe i want to disregard all arrest so here i am with her educational history and a totally inconsistent testimony why can't i just say ok waterhouse's incredible i think there was some confusion in the record between whether or not but the difference between taking the ged and complete and passing the ged and  and the other thing is that she ended up going to college for three semesters i mean there's not even a question that she's got a high school the equivalent of a high school education and that she attended college is totally describe that so it's that's i  just think this is like some sort of odd confusion in the record that ike i can't explain it to you but i don't see how it and how it justifies rejecting all over testimony about all the problems she was having thank you council think you can plan but will put one minute on the clock when you come back i think you're almost four minutes away from the government jada smith please the court on david bridget representing ms berry hill the acting commissioner of social security as judge payne indicated there has to be a date certain that the claimant is attempting to claim as her onset date of disability here now the claim that was presented to the l j in the briefing at the district court in the region for this court was an onset date of july thirty first two thousand and nine and i guess mr younge is abandoning that here at all argument because i heard him say june of two thousand and eleven i don't know quite what to make of that i propose that we go with the a determination after looking at the record and given us a twenty three page decision as to her reasons for discounting the opinions of the non physician providers or fail to give clear and convincing reasons for waterhouse's testimony seems to me i just sent it back to the l j to make another decision as to why they picked that particular date isn't that what i do that is what you do if there is a failed in any of those particular as your are but she did give specific and legitimate reasons to reject the twenty thirteen same from dr laden and she did give germane when i go through those that's why i want you to think about that when i have rebels versus perry heal and i read that decision and we're dealing with fibro mild and that's a tough tough issue encountered another case now it seems to me that some of these reasons the a l j may have given are not specific enough to make it make the decision go based on revels so can you distinguish the rebels decision from this decision and say why i can continue to go on that i don't know that i can distinguish it your honor but i think it fits in going to sink the outcome because i think that it fits in under the stand this does this decision fits in under the standards that we have and rebels because the here cites her activities of daily living sites her improvement in symptoms that was documented in the treatment that she could not perform light work and yet rebels would seem to discourage me using that reason fiber wild you would not yes you're on so i can put that one in he the l j says dr legs opinion is inconsistent with the overall evidence of the medical record that doesn't seem to be specific enough to be really to to rely on that reason but i think it is specific enough in this i just barely inconsistent l j rose eventually decided on march twelfth two thousand and fourteen as the earlier date when disability could be established is specifically because of the later opinion of dr lane on follow up now see what he wants to rely on for an earlier date of disability although even this would be a much later date than we just heard at oral argument but the reason why he won't this is the statement of dr layton that he wants to rely on for  that that's a that's a pretty vegan unsubstantiated statement but dr leighton saw her again saw her on followup in may of thirteen saren followup in december of thirteen medications are improving her symptoms throughout tw and then later in two thousand and fourteen he sees her again on follow up and at this point in the record there is an objective evidence there is swelling in a wrist and she says a lack of group strength i'm having difficulty driving and this is the point where d layton points to some specific evidence that says yeah her ability to handle finger and manipulate is different and this is the point in the record that the l g looks at and says aha here we have some evidence at last of an earlier potential onset date of disability because you've been found disabled as of august thirtieth two thousand and fourteen by the second claim that she had brought after the first one was dismissed and so this was the the hearing of the first claim where she claimed disability back to two thousand and nine no evidence from two thousand and nine two thousand and ten or really two thousand and eleven two thousand and twelve the first evidence that is specific is the evidence that points to that date marshall twenty fourteen and it's from dr layton so it goes to show your honor that the ala jay was looking at the whole record the whole record the doctor laden had they all didn't just blow it off and say oh no you know dr laden is out to lunch no the energy is looking at dr laden's record and saying where does dr elaine point to something that i can hang my hat on and find make a finding of disability and she did at the earliest possible point in the record if we might  what about the it's regarded waterhouse's to me if i look at rebels i'm having a time understanding why there is any real inconsistency except the inconsistency relating to the educational history because rebels allows inconsistency all over the place whether it relates to five or a wild so the only place where i can really bear in there really is an inconsistency but doesn't the gravels doesn't get rid of is in that educational history now can i can the l j have simply the idea that her inconsistency as to educational history is enough to discard testimony not in itself no your honor but there's more there is actually more but what more doesn't rebels get rid of there's there's two more that rebels doesn't get rid of one is because the other complain in addition to her hands was shortness of breath which is variously described as c o p d or asthma and it's really asthma because you went to the doctor and they said you have asthma and they said you need to stop smoking she goes back to the doctor again this and november two thousand and eleven and they say you have asked me to stop smoking she doesn't stop smoking in this court embrace that that was a permissible reason to fine we also have the other one talking about smoking being and addiction and that's not a great understanding you that you think that she that the claimant was denying getting any really that's correct and that there's medical evidence sitting indicating that there was some improvement with treatment correct your honor if she if she if her assertion is that from two thousand and nine forward or two thousand and eleven forward or two thousand and thirteen or whatever it is today forward that she was that she had no improvement and didn't get any relief there's evidence in dr lane's notes that she did and that's a that's for me to have counseling because this is a really long period of time that we're talking about it's tough for everybody you a opposing counsel but it's a really long period of time that we're talking about and it's sort of a downhill two steps forward one step backward or maybe the other way around to step backward one step forward kind of an analysis of you're talking about a progressive condition so i'm not sure that that helps me a whole lot well your honor it is and it's a progressive condition and at some point you know it's a progressive condition correct and as with many progress and additionally that forgive me i know i'm interrupting but i want to give you a chance to respond and that my point is over this long period of time just because you know she could be indicating that she had maybe periods of intermittent relief that's reported in the records we've seen that a lot but that overall she's not really improving in fact she's declining so could you respond i promise i'll let you  and especially with your on but the question yeah but i don't think that this i don't think that we have anything to show that this is in reality of case now we do have a progressive  decline as we have with many conditions and i guess i would just say that at some point in all of these social security disability cases in any case where the fact pattern is like this there's a progressive condition and at some point she does become disabled right at some point earlier than that she wasn't disabled the burden of proof is on the claimant to come forward with evidence to establish that earlier onset date of disability whether they claim whatever date that they may claim it may be the burden of proof is on the claimant to demonstrate that thank you counsel appreciate your argument and your patience with us thank you and there we're going to put another minute on the clock for you because we took you over she didn't have to go into what a doctor laden actually see and right from the moment he's first saw her in march two thousand and twelve he noted that she arose from a chair with caution she'd a slow unguarded gait and his notes proceed like that there's always something that he notices and i think that's the underlying thing and with regard to meds she wouldn't take meds she she's been allergic to madge and she's afraid of meds and she won't take meds does that mean that the onset date in your view is march of two thousand and twelve now  from a nurse practitioner but the real the challenge for i think for the court is the l g never even looked into the any of the effects of the fibromyalgia that was under undermining you know everything that she did because she didn't think it even existed in if dr leighton's diagnosis that was done without the proper test right well it was done without him describing the proper tests but there was the subsequent doctor but he didn't there's no evidence that he did the test arguments will take a short recess to take this case under advisement and we'll stand in recess for ten minutes