you just work and may please the court my name is mark caldwell representing as we are stanley this morning a social security disability case i will keep track of my own time but with the court have a very naive of me i try frankly knew that they had substituted the husband at the administrative level and foolishly thought to myself well that's a that's a done deal but it obviously the court was it done that the not doesn't it's not in time to any benefit not under the statute it goes in a certain performance it's it's a husband living with her first and children and then i think her parents and on down to various  family members but the husband is the appropriate substituted party and has been for some time substitute at the administrative level with a preliminary out of the way it looks from the medical  mostly most of the serious illness is really her symptom reports to her medical providers for rather than medical providers diagnosis based on evaluation and symptom reports or more tests why was there no substantial evidence on the record to support with the hail j decided f respectfully disagree with you on especially me on especially the earth p d can parents the earth p d compartments were well documented showing severe degeneration of the lumbar spine both by x rays and by they cause as painful backaches well to some extent that may be true of everybody feels pain differently but certainly in this case she's she satisfied the test neil she said she set aside the test of having a severe medically stated that she had to lie down most of the typical eight hour day commissioner mischaracterizes the record says the entire day she didn't say that she said most of the day and the book the vocational expert did not give testimony on that because it's facially obvious that a person has lay down most of the day can't sustain work activities it's vocational expert did go back and say that the treating pain specialist  those reports i'm going to agree with you and disagree with you the l g a doesn't discuss longchamps at all all at he'll jay recognizes general's report meaning his name is in in report in the the word this a very very unfortunate is the word acceptable it implies that if it's your otherwise you're unacceptable which is untrue that's the language of the statute right other medical sources the way it's termed is still under social security really oh six three p intitled to give an assessment of the severity of the limitations so except a full source doesn't mean the other source is an unacceptable source it just simply means that they're like whitney zick cannot yes and i'm i'm frankly is in my brief i've been so critical of the way this court's handled that i think this court in lena going back to the the car can tailor decisions incorrectly is treating the nurse practitioner opinion as if it was late paying because it commission make the argument this is just big knowledge that there was no discussion of this they do but they just essentially say it was harmless because if you would go through and look at the other evidence in the record obviously they all j would have not placed any significant weight on these two reports and that speculative but number two it's based on a very skewed reading of the record first of all the commissioner doesn't even mention ignores what the commissioners own witness said were disabling limitations i don't think the commissioner should be countenanced to do that a rule twenty eight j j letter that i submitted has a very helpful case in this regard that was decided by this court just within the last month or two marsh in marsh the treating physician made a statement that's much much less definitive than the evidence and banking up but i am bothered your concern that the agency didn't acknowledge nurse practitioner long shops opinion but when i look at what nurse practitioner walked chomps did she give an opinion all i have here is a checklist the sort of thing that a nurse practitioner does before the doctor sees a patient where the nurse practitioner asks what medicines are are you taking what symptoms you have and she goes through this list of medicines one two four two two four three two four four and that two four five ok well the reason i asked that question is two for four is where she's not filling out a form for the doctor assessment of the degree of lamentation that could be expected to result from the pain on the checklist in that what i see yes and that was the basis for the vocational sports testimony the nurse practitioners evaluation  based on what the patient claimed to her actually i would disagree with that as well the latest assessment from the nurse practitioner baulch possibly impinging nerve or that's the basis for opinion she said somebody highlighted this with if your yellow highlighter and i can't read anything through where they highlighted you're talking about the highlighting at the top which gives the date for forget that that's just the date i'm talking about where it says h b o history this go down about six or seven lines and she says patients that feeling well without any specific complaint th misdemeanors see her disorder was in control with medication a machine added to her provider that she would go months without a seizure i mean her doctor repeatedly described that condition as well controlled she had to seizures right she had a minor saying she had to grandma cesar's and then she subsequently was placed on medication i assume she takes the lanton and the controls are i believe so and there was one point where she did have some breakthrough seizures she reported them to or doctor that she was having breakthrough seizures every four to six months he increased her dosage of i believe thailand and then and subsequent appointments after that she indicated that she had had no further seizures since that increase medication the only thing i could really see i mean she has a really bad back and so many people do it seems like a design defect but the only thing i could see in the record that might prevent  from working was either a mental disability or an alcohol problem is it the want to have an alcohol problem will do for social security benefits the lot is that client where drug abuse was she she went she saw different basically ok i'm just reading what i'm asking is why wasn't there not substantial evidence on the record taken as a whole for the proposition that a mental disability totally disabled or from working well the record actually shows that while she was having lots of issues the mental disability concurrent with her alcohol abuse that once she abuse she indicated that she did not have other psychological concerns she was at work she was working in a recovery home indicated that she was able to work in the recovery home and if we look at the path of that treatment for that mental disability really once the alcohol abuse subsides she starts functioning pretty well mentally certainly well enough to perform unskilled work which she was significantly  it was living in the home was part of her her id why sort of requirement to participate in one of those while she was a cub reprograms it was but what's interesting about that is it wasn't just that she was living in the home and kind of helping out in the home july july about yourself so twenty ten she indicates that her company moved her to a home with some company moved her reassigned her where she was doing one on one one on one monitoring with  a seriously mentally ill pregnant woman then that august again we see her moved again and she's in the cane that she's now the house manager and and what she called the boss in the recovery home and then we call that a federation thousand and eleven and she indicates that there was she was somehow demoted at what she called work and she indicates that and that it appeared to be it was a little bit hard to tell from the record but it appeared to be that it might have been related to some of the properly weigh these opinions and the commissioner's argument is based on hansei or respect to these two opinions but looking looking at his opinion you know even taking it at face value she just stopped drinking some at some point in two thousand and nine and you know by that december she's reporting complete surprise sobriety for a period of about six months and after that she just starting better she denies in march two thousand and ten she denies that she has any psychological still can you think it to be l g really look at it they were not given this anyway i'm not going to give these opinions any weight because the subsequent evidence outweighs them all i want you know what he is that what you think you know and in the case of dr general it's not even the subsequent evidence  was this subject of the claimants attorneys hypothetical to vocational expert and so when when he did a hypothetical to her to be that included all the symptoms  she said there would not be any work that she could sustain and i guess i find that troubling that when you include all the things that are in the reports that the l j didn't consider give weight to twenty three for how do you explain that well that would be if these reports are properly credited and if these reports are could be properly credit well and good at it and if these report accurately described misdemeanor sashimi during the relevant time period however you know our position is that these are limits are is that these are limitations that did not belong in the when we don't get to step five you don't get to step five issue if the restrictions don't belong in the r c to begin with and so well you know i'll concede that if these were accepted if these limitations were excepted and impairments but also for mental impairment are really so i so i don't i'm very different kinds of mental impairment yeah but i don't think that i'm never looked into it but i don't think that there's an issue of the psychologist i know that he didn't have  specifically at that opinion that is we nursed pain level it would prevent her from maintaining concentration persistence and peace that opinion is really wholly inconsistent with the rest of the record in treatment records from numerous providers including from his influenced the ael day is that she had in fact been working albeit in a volunteer capacity in very limited and she said she had to have help doing it it's nowhere near anything that would impact wh work activity she was and i think the commissioners attorney said that she was demoted so you know the test is whether you can sustain work activities on a regular continuing basis and there's just no evidence here that contradicts what dr gen had to say in that regard cannot prescribe medications the factual statement is correct but the commission recognizes ph d s except among medical sources and so six three p are things within their expertise but their expertise includes diagnosis of emotional conditions not just q tests all day long mr recognizes them for diagnosis of their condition such as bipolar disease her condition he did and i'm also going to respectfully disagree just because i need to be honest with you  her biggest problems were psychological certainly that factors into it that i believe that the back pain was very well documented by these various diagnostic tests and that's what led to retest my going to have to lay down for most of the day i want to finish up with one more thing if you like me and that's something we haven't talked about at all the district court took it upon itself when when talking about the claimant credibility determination to change the standard from specific clear and convincing which is so well known to the court i don't need to repeat it to only specific reasons by relying on an unpublished california district court case if if i didn't appeal that i wouldn't deserve to be a