thousand and eight the month prior to that in august of two thousand and eight he went to an appointment that was scheduled for him by the department of vocational rehabilitation in the state of washington they haven't montra d v r it says our passion is helping people with disabilities be able to work mr bost didn't want to apply for disability he had a loving mother that was a nurse that nurtured him had a father that showed tough love he was electrical inspector ruled with an iron fist so he kind of had bad cop good cop in his life he fostered a desire to work he tried ten different jobs he went to college for ten years  all of this according to dr paul schneider who the male j zone vocational expert testified was a very respected psychologist in the computer community and was very good at helping people get back to work with disabilities recommended application for social security disability because and as dr snyder said there were just too many problems and too many demeans three million obviously does have a lot of problems sand you know and  it it makes a little harder because he can do a lot of things too but his problems are such that being around people are clearly problematic for him because that i know the record says he volunteered at a computer lab twice a week he service of worship leader in his church he has friends and a girlfriend he is active in his daily activities i mean even though his academics took a long time he did that substantial evidence supporting that decision that his daily activities and social activities are such that you know he can do something you know i'd like to address that if i could unusual there are a number of people who take extended periods of time yes but go ahead i'm sorry and sorry so why should it be an old saying i have to address that specifically because in this case the reason he took time wasn't because he was partying or because he decided to go to work or because of this or that it was because of his disability and it's clear in the record that he needed a disability advisor he had to have oral tapes couldn't use textbooks he had to have special accommodations and he had them both at yakima valley community college where he was at for seven years where year and most of his credits so they didn't have many credits left when he transferred to the phoenix university online course but there he had a disability advisor was completely online but the job sat there saying that he can do are not be a law clerk to a federal judge what are the jobs that ultimately they said with the hypothetical post that he could get there were like three that dr kester and dr beatty who were the two psychologists that gave great way to had a plan that he had certain limitations in their report they're the state agency physicians hypothetical right no they all j didn't give the hypothetical from his own experts that he credited he gave in court he he gave his own hypothetical based on his own r f c what is our if he was but fact or they they decide well i think based on you know the l j allegedly has more evidence than all of the doctors you have the different doctors you have people in the family  have the at the end of vidual that's applying for disability seign what how they live their life all of those things and then you know what was wrong with the tail chase hypothetical was judge tell him the problem was is that the the judge could have done that they could have said i accept part of dr what dr castor and dr beatty says i reject this part and i find this the judge didn't do that in this case that's not this case the accepted with and gave great way to all of dr kister as opinions but he didn't incorporate or encapsulate those opinions in his r f c so when it l j gives great weight to a doctor doesn't reject their opinion he needs the losses he needs to incorporate those in capture those opinions in his hypothetical clearly he didn't in this case because when those exact limitations from the doctors that he gave great weight to and didn't reject any of their opinions were given the chance of getting the i think that social security benefits and so then that applied that that what i don't know we call this a g x program certification right cor so i'm wondering really what the relevance of that is in the sense that it's a little bit like a plumbing or injection like what we do it's like you look at a couple of things and you say ok because he doesn't examine them you know he just looks at a couple of things and then says well yeah i've got a decent chance so not mentioning that why is that why is that either even relevant or why is it not harmless  and because social security says in a regulation they say that decision from a get another governmental agency is evidence that shall be considered now we've attached an appeals council order where the appeals council in ri buttle to the council's argument in their brief that the although the algae doesn't have to accept the pinion of dr colby and washington state that mr de dubois is disabled they zero three p require that these types of decisions from governmental agencies must be mentioned and must be considered by the hail j these are additional evidence now if you know the argument the counter argument is often is that listen he rejected dr snyder dr snyder said he couldn't work so therefore by extension he rejects dr colby although he didn't mention dr colby he doesn't even talk about him that's not the way it works because  disability i now like the fact that someone did that this not per se mean you win at your final hearing unfriend the l j doesn't know it means that l j has to consider that evidence in his decision making process and has to say report right there's a yeah that's and consider the two reports that dr called baby that's not enough the judge because well i'm not saying whether it's enough or not but i want to get the facts straight he did consider the two reports a doctor called be considered right he considered dr schneider's report and he said it was he said that it was inconsistent with dr castor and dr babies which it turned out it wasn't because the vocational expert said both under both scenarios that that mr bush could not work even it's that's not how come to determine if though i didn't say it was right i'm trying to just get right just i'm trying to get the yes or no facts here yes how extensive was the report we're talking about it was more testing with it in depth psychological examination this is the one that the a l j i guess disagreed or didn't have the right way to dr schneider because he felt it was inconsistent with the reported daily activities in part he said first he said it was inconsistent with dr castor and dr beatty in the report that is about a third of the s and but which when dr castor and dr babies report was given to the vocational expert they said there the vocational said there be no jobs they could do that was the first reason he gave because it was inconsistent with is unusual here that there are a lot of things your client does i mean he he drives he rides bicycle he plays tennis he goes to church he attends church function kind of backwards about this case to me your honor is because this guy has a family that's pushing him this behind him hundred percent he's pushing himself he's mine i'm one hundred percent he didn't want disability he wanted d v r help he wanted to be able to get retrained he want to be able to work so he wanted to do he tried ten different jobs he got fired he lost the jobs what do you do he started his own company he never could make more than four hundred dollars in a total year twelve months this computer repair business right there and the judge doesn't mention that only made a total of four hundred dollars doesn't mention that social security did it investigation of that job and found it wasn't substantial gains like that it was either any of the jobs that the a l j said he could or he tries some large objects not not of those exact jobs no but he he found similar jobs and his detailed earnings history which is in there in the record at the d exhibits it gives a list of ten different jobs that he tried prior to this time he he's got no shortness for trying that's what dr with this guy he's got a lot of disabilities he can't work he can't sustain work i'm sorry aren't they his current age he was he was thirty five when the herring somethings it was in his mid thirty's y good morning my name is john the mont i'm representing the acting commissioner of social security administration well you're not a guy here that has tried to do some things i mean he's one of these people though that the disabilit has aren't necessarily physical i mean we obviously can't put him around kids you know we can't he says not very good around people you know there's so he is sort of and an example of contradictions for and that's an interesting point so and the question isn't whether he can do the jobs that he tried to do but whether he can do any jobs available in the national economy and it's interesting that mr tree points to his work record and indeed that was one of the things considered because there's a fundamental and inconsistency between a claimant like mr du boss who says that i've been disabled since birth because i have full physical psychological and mental impairments and someone who actually worked and who did so it substantial gainful levels now it's interesting to note in the record when he says they're  down i'm sorry i will try to slow down it's not enough time it's interesting that you know in the record when he talks about the reasons that he couldn't complete those jobs or the reasons he lost his job he says that it's because for instance h depression he or he said the wrong he said the wrong things to people but then you look at what's actually in the record and so he had his longest period of employment was from one thousand nine hundred to two thousand he worked as a cashier for fred meyer and in his hearing testimony against he says well depression got in the way and you know i spoke out of turn to supervisors and i got and i lost the job in that way but actually the record shows that he exposed himself to children and he was arrested as a result of that and lost that work and as for his  his his other work attempts that's a significant limitation now well the interesting and proud he says sir that you can or cannot do absolutely he goes to well two points up on that your honor one is there there could be a component in this  cases is his is this conviction a barrier for him to getting a job and that's something that's not it could well be something that prevents him from getting a job but it's not the kind of problem that the social security act is designed to fix and the other interesting point is so you say well maybe the problem may be the fact that he exposed himself to children that shows that he has a disabling mental impairment but you look at dr schneider's report and he and esther i'm sorry you look at dr schneider's report and he this is something that came up in the psychological examination and he said his his how exposed himself to children how he lost his job and dr schneider says that and i have a quote here he says that quote his excuse doesn't hold water with me or with anyone else so even dr schneider didn't accept that explanation that the reason he exposed himself to children was because of a sort of psychological impairment well how can we conclude that d decision was not significant or probative value added and that the l j was required to address in that it seems i sort of made the other argument with appellants counsel but it  conclusion is the same conclusion that an ale chase going to be making well it's interesting i think it's interesting that mr parr relies on this opinion it's actually a bit puzzling because for two reasons and one reason is that  likes to compare it to a sort of disability opinion for instance the veterans administration makes disability opinions and that's something that the agency has to consider in this court says that well those are based on similar rules the v a applies those rules and they make a disability determination but in this case dr kobi didn't really make any sort of independent disability opinion he just said there is a decent chance that s s a will find him disabled and set aside the fact that a decent chance isn't exactly a ringing endorsement ok but to come to that conclusion he had to look at some of the same reports that the l j looked to and that read my second point your honor so another reason that i think it's interesting that he that's a mr tree relies on this opinion is because it actually tears apart the opinions he likes so you look at for example so he talks about rest lander sin which is the social worker who evaluated mr du bois and he says that mr anderson didn't use diagnostic terminology correctly and that there were no support for the cognitive find any justification for the diagnosis of a cognitive disorder and also found insufficient support for the other diagnosis is that he made so i think it's curious that he would cite this opinion it doesn't say anything about how mr dubois is limited and and that's actually what a medical opinion is and that's in the regulations of medical opinion should say what the claimant can and cannot do there is nothing in this there's no limitation in dr colby's opinion that in fact finder could incorporate into a residual function a past you say it's not a medical opinion  it's an opinion from an acceptable medical source it does not have any can you get this what it what we call it i know you all think x can you get certified to the program without a medical  but i assume that this some are saying there's a medical person sure absolutely ok so and this person's not writing in any other capacity than as a doctor right absolutely so if it's a medical if we were to find it is a medical opinion did the ala che have to mention it not necessarily so under this court's precedent in the heckler what the l j needs to do is discuss why significant probative evidence has been rejected and let's think about what the l j is so then it's not probative but it's a medic if even if it's a medical opinion if it's not probative right because significant probative evidence is i think it's important to keep in mind what the ale j is tasked with doing alternately and he needs to determine whether there are any jobs a person can perform and in order to do that he needs to find the evidence of how that person is limited so when you have an opinion that says for instance when you have a statement that says like he's you know he struggled throughout his life that's not really something that you can put into a residual functional capacity finding in here with the state ok let's assume it's a medical opinion let's assume it has well you can you make a harmless error argument i think you could because when you look at whether whether an error is harmful you need to determine whether it would change the outcome of the case and one of the i think what there are a lot of ways to see whether something is harmless but one of the ways to do it is to see if you credit the opinion is that even if you accept what the person says does that change the outcome and here you accept what he says it's that there is a decent chance that s s a w find him disabled well there's a decent chance that s s a won't and they didn't so there's no but in terms of so it reports that dr colby considered were those reports that the l j considered yes absolutely they j considered and talked about both of those and at one point i think it's it's also worth noting that just because the l j didn't discuss something in the opinion doesn't mean that evidence wasn't considered so i think there's a kind of a duality there and  there's a difference between what needs to be discussed and considered so talk to me about the hypothetical because before the hypothetical the vocational expert said that there was nothing at that that mr i've been saying that it's all honesty is well i've let by that that there was nothing he could do were ok so that kind of seemed like a death knell there and then the hypothetical came so tell me where the hypothetical was wrong and so sure he relies on dr castor and he says that the opinion proves that he's disabled any poses as he said this is based on questions posed to the vocational expert but the problem is that counsel plucked  check boxes out of section one of the mental residual functional capacity for many after person ve whether a person with moderate limitations could perform work and the v said no but the problem is that the form itself says that a moderate limitation means that there is some degree of limitation and what that limitation is needs to be described in the narrative section three and a narrative section three dr custer says that the claimant can perform simple simple  consideration this opinion along with the of the physical doctor's opinion controlled out initial consideration and based on that opinion he was found not disabled and one thing i will i want to point out there was a twenty j letter filed yesterday afternoon and in this case it was a seventh circuit case called varga and that had to do with that sort of how this works she is considered and i just want to distinguish that case because in that was a case where the form was completed and then so again you have you have a summary conclusion section that guides the the psychologist in making in formulating his opinion and then to the extent moderate boxes are checked you need to describe what that grave limitations are and in that case the doc the d d s doctor wrote see electronic work sheet and the narrative and that wasn't in the record so i think that cases ingle easily distinguishable from this one this is one not only where he filled out  that he provided a narrative but he also provided additional explanation at page three sixteen of the electronic of the excerpts of record and also in that narrative he talks about the reasons that it is disagreed with dr schneider so when accurate so one thing i just want to emphasize in this case was the timeline so it's it's easy to pick out the one liners and say and to get bogged down in those and you know they go both ways but i think a timeline gives perspective and it shows that the  conclusions are reasonable and this is a case where the claimant said that he's been disabled since birth because of both physical and psychological impairments but he graduated from high school he did not he was not in special education classes he worked as a cashier from one thousand nine hundred eighty two thousand and again this is not the kind of work that he would have to do under the residual functional capacity finding because he's not to have contact with the public and he's to have only superficial contact with coworkers and supervisors and again he said he watched his job because he was fired for saying the wrong things but in a testimony he but the record shows they actually lost his job as a cashier because he was arrested for exposing himself to children and as i said even dr schneider didn't buy mr duke was explanation that that was because of his mental health impairments that on the record at page two eighty five he says that excuse doesn't carry any water with me or with anyone else and after this conviction mr dubois worked but only in short term contract positions next he had court ordered psychosexual therapy but he didn't engage in any other mental health treatment until late two thousand and ten this was in spite of the fact that as early as two thousand and five mr dubois was told that his problems could be effectively managed with medication from his primary care provider  not be considered are you saying that there are certain portions of that form that are not relevant it's not that they're not relevant it's that the physician already accounted for that the physicians already accounted for them in creating the narrative about what the person can do so it's not that anyone is ignoring them that there is that there's these worksheet check boxes and that's just sort of like a medical friend a guide for the medical decision maker to sort of summarize what's going on and then to make a sort of concrete statement that someone can apply about what a person's limitations are so it's not that it's not considered it's that those boxes aren't in compassed in the narrative that explains them and that's set out in the form itself that says if you check moderate you should explain what the limitation is it's set focuses on section three i don't understand why you think it's necessary to make that point i'm not sure i follow the question i mean so to me it seems like you're minimizing section one why do you what drives that why what would be the impetus for minimisation again two things one is that the form says that one you need to know what moderate means and moderate isn't really defined except that there is some limit what that limit is needs to be defined so if you say if you go to a vocational expert and you say this box was checked moderate can a person with moderate limitations do work that doesn't really capture what's in the form because for the physician who completed that form both on both in terms of the instructions on the form and the policy guidance that is connected to that form moderate means there is some limitation collect all of those moderates collect all of those capacities in which there is some moderate limitation and set forth a narrative exactly what the limited sub i the hypothetical question did not improperly reject the opinions of substance and stock there and then it goes down and it talks i think in the third paragraph it says the l j translated stubs danielson could in the pace the pace and mental limitations so you go down a bit more and it talks about and this is what i would really draw the court's attention to as two of our sister circuits have recognized the male jesus has made a claim and adequately captures limitation this is a specific box that was checked in that form just for cont you're extrapolating right well if you look at i think you go to howard versus mass in our it's a similar case so there's a there are many permutations of this issue and i think this is the simplest one because it's one where the where the check boxes and the narrative how those check boxes  interpreted are from the same position this case doesn't say right i know this is that the case doesn't say that but i'm but i'm sort of trying to note that there are different permutations of this issue in terms of what the check boxes mean and what the narrative means and i think this case simplest permutation of that because the physician who checked the boxes is the same physician who explained what those means so it's i think it's relative it's different then nope bottom line it's basically your interpretation right  my time is concluded well just for generally i think that those are the cases that would guide this court and resolving the issue and unless there are any further questions i'm just curious why you want minimize section one because the form the agency has developed this form for a reason that one would assume that paul every part of the form has a purpose some just curious why you think that it helps your case and i think to minimize the effects of section one i don't get that the reason is is it's a guide for medicine called decision making so that's a different that's a different consideration then when you're putting it so you have occasional expert and you say what does this mean because mr tree so that these check boxes of the cation lights bird and said what does a person say if it said no limitations would you be minimizing section one if later in it it showed that there were some limitations that certainly would not be i would be surprised if mr tree would then ask an occasional expert if a person with no limitations could work but you never know work that isn't mean he has the vocational expertise to say that what a psychologist does it is limitations and then we present those limitations to the vocational expert to find out if you can work with those  hypotheticals you develop the hypotheticals that you think are the best case scenario for your client to be disabled and the a l j may develop different hypotheticals based on what he or she has discerned from the about section three this is what section three is it's on page three o two it is three sentences it's right there three sentences one two three mitchell months that i was wrong but that's what it is you can look at three o two that's the entire section three evidence is right there and argues you know that should be used these two pages these twenty sentences shouldn't be used but the l j said he didn't find that they l j found the doctor kester found mark limitations on section one and i give this great  j accept a determination that their own mark limitations he was required to find a disability is that your argument is that since the l g a accepted this and didn't reject it and gave a great weight and since this was presented forbade them to the vocational expert and since vocational expert said there was no jobs you could do including the three jobs that they all j found it could do and since the l g did not reject the vocational expert testimony then we need to credit this is true they all j except that it is true well it's sort of an arresting thought if you approach this case from the standpoint that that al chase don't do something different than everyone else and the courts don't do something different than what you tell us to do and and so i mean there is a function separate and apart from what you know l jase assess you make your argument of how they should look at it you make your argument of how you should look at it shays have a function and there's the five steps that they go through and so i think what judge robinson to say just because someone says this is one person's opinion doesn't ergo follow that the a l j has to find that or just because you each make to correctly and that's why there's a review points and i think the significance in this case though is that we would be having quite a different conversation if the l j had said and he very well could have because i presented the hypothetical to the vocational expert at the hearing based upon the section once in the l j was sitting right there he knew it he could have very well of have said some additional questions to the vocational expert he could have very well in his decisions i reject section one for these reasons then we would have been having had a discussion of did the l j properly reject these opinions that would have been our discussion but the detail jay didn't do that he gave this great weight he listened to the hypothetical he was there he heard it he didn't rebut it and he accepted it that's the point of