thank you good morning your honour's i originally had thought i had fifteen minutes that was on the docket on the website and now i have ten so i might talk a little fast  white argued at the district court that he was disabled by his combination of nerve root compression and obesity and other disabilities and he argued and that the facts show that he has a nerve root nerve ridiculous up with the going from his back into his left leg he had an in both positions but that is the requirement of the regulation he had limited range of motion sensory loss reflex loss and he was unable to stand on his toes and heels or walk on his toes or heels if he had strength loss he would have met the listing but that is not apparent alle j agree just liard and holding there was no medical evidence of a nerve root compression he testified that he had to lay down regularly during the day it was painful to sit over fifteen minutes so as a matter of law his nerve root compression in addition to his obesity equals listing one point zero four for nerve root compression as a matter of law just clarify for many of my writ understand it you agree that he didn't literally meet the conditions in listing guess for us saying that it was a medical equivalence but yes it's my understanding is the supreme court has said that you actually have to meet them and step three is a required no he didn't literally made it but he did it will it under the regulations and i would that the supreme court has the supreme court said that that regulation is no longer in effect about equaling them i think that they're looking at the statute and what which which regulation you pointing to is supporting listing one point the listing that talks about a quick meeting or equal that's the listing and then it also there is another regulation and i can look it up that says if you equal it you also are prima facie impaired but in any event his combination of impairments do not give him the residual functional functional capacity to perform any kind of work he represent i'm sorry represent him before yes yes absolutely and mr that jay also erred by not discussing his obesity and incorporate refer he had moderate limitations in sitting and standing i have not found a single case where a person who has moderate limitations in sitting is able to perform even sedentary work there was no doctor the only doctor who actually gave an r f c was dr few who is a non examining consultant and of course the non examining consultants opinion cannot trump the findings or opinions of the treating doctors but obesity must be considered and discussed in fact his treating  said that the combination of his ridiculous up with the and obesity would likely cause the pain that he's experiencing also the objective evidence does support mr white's testimony about his limitations and his pain he has a straight leg graze which is a an objective test that shows he had leg pain  he had a m r i that's an objective test that's been accepted by the courts with that he really his credibility should be accepted unless there was a very strong reason not to accept then none of the doctors said that he was tech he was not consistent nobody said he was not credible he said numerous objective tests like a lumbar compression test that show that he would have a ridiculous up with the and the pain and numbness of which he complained as a matter of law there is not substantial evidence to support that he was not credible once he has those objective results he is presumed credible and the judge did say he was of the commissioner argues that my client was a vase of and i address that in my reply brief you really nobody would look at that and say you're being a vase of where he was asked are you able to drive a truck no sir you don't have a license could you drive a truck or pick up now it's not very comfortable i hurt sitting i lay in a car when i get in a car i set my seat back quite a ways a moment slowing down that that that would not be considered a very sort of well we weren't there right i mean the jay was there and so generally gets to determine credibility right if there's substantial evidence and some state once there's objective evidence something like that would not be substantial substantial evidence base if you need substantial evidence to determine whether the fact finder thought the witness was yes otherwise the exception will swallow the rule if anything that a judge considers a very severe substantial that defeats the purpose of this substantial evidence test which is you look at the evidence from both sides you weigh it you look whether what a rational person would think it's strong enough and i know you do have to look at that and decide whether it's a very sort of a judge that in light of sources no medical opinion evidence from an acceptable medical source did not point to any clinical findings diagnostic evidence contrary to the characterization of evidence but a diagnostic evidence was mostly but nine and that it didn't establish the listings ultimately there's no doubt based on the record that his obesity limits some of his some function so right yes there is no doubt that obesity limits some of the claimants functioning but obesity was considered an accommodated by the r f c it's a reduced range for light work which is less than a full range and again which is supported by two medical opinions one from a consult a consultative examiner whose opinion can be entitled to consider both great and constitute substantial evidence provided it's consistent with the  as well as a medical expert an orthopedic surgeon whose opinion was in this case adopted effectively adopted by that along with the the evidence of claimants treatment notes showing mostly normal stance skate normal mostly normal strength and arms and legs no significant abnormalities and in consideration of the claimants lack of full credibility here there is substantial evidence to support they are james r r of c could you address the obesity question little bit more i understood that the under the s s of mentions knowledge meant of an obesity finding but really not the kind of full assessment of how it would have affected his capacity could you explain why what he did is sufficient in your view yes things  basically as you know it's not as severe impairment but the regulations do require the l j to consider it and take into consideration so here there's dr well as you mentioned the court l j relied on specific limitation as it relates to the medical evidence it just needs to be supported by substantial evidence here that correct legal principles were applied the considered adequately though b c there's no there's no evidence or reason to think to the contrary in this case as they all say identified it in the claimant did they didn't suffered from a morbid obesity was in the outlying kind of obesity this is obesity in terms of body mass index four your colleague says that he had demonstrated that the claimants disability equaled even if it didn't literally satisfy the requirements of anything individual aspects of the factors in the listing what why is he wrong in that if you are well our position is that that argument was waived below but notwithstanding the waiver here the l g s decision went through and discussed the requirements of the listing and as the court recognized earlier to satisfy the listing every element must be met there is the introductory paragraph and then there's the subway or graft a b or c and so those relate to just again normal stance and gait limited range of motion but functional ability and that all together taken as a whole in conjunction with the medical opinion evidence in conjunction in conjunction with again  diagnostic evidence not actually establishing nerve root impingement i think was the term used earlier we disagree with that characterization of the evidence as well i would like to person and hear the l j not to beat a dead horse relied on medical opinion evidence consider that along with clinton clinical evidence diagnostic evidence and did credibility finding again claimant has not pointed to any evidence supporting that he he satisfied his burden beyond the r f c and in terms of making assessment of characteristics that might reflect whether he was suffering pain i think that didn't he say that there was some measure of pain he believes the claimant is as to that but the question was how acute chronic severe it was that's exactly correct your own are the question  question is not whether the claim that spirits pain and as you know disability doesn't require someone to be pain free the question is whether pain has pain in focusing on the credibility analysis was as severe as alleged and that just certainly substantial evidence supports tail g s r of c and to the extent that the credibility analysis is flawed in part i we i i don't concede that it it is but even if it were we w thank you this abstention evidence test is really well established by this court and by other courts that it's a the social security act is a remedial statute and must be liberally construed to include and not to exclude and in looking at substantial evidence this is not summary judgment where if there is any material evidence most favorably construe to the defending side with all inferences know that there is a weighing test here you have to look at what gives evidence of its weight and what detracts from its weight we keep hearing a deferential standard and that's what that's new language for many years we never talked about it is deferential it's less then a preponderance of the evidence but it's certainly more than the summary judgment or directed verdict standard there must be rational probative force otherwise every how would you ever find that in a j was not supported by substantial evidence the course of said it as being more than a scintilla it has to be more than a touch here and there in the case law is well established in this circuit in other circuits that once you have objective clinical and radiological test showing the amount of impairments that my client has you should give great weight to his testimony about pain a found that some of the testimony he gave was contradicted or in tension with what the professionals the medical professionals had observed for example plane that he couldn't lift a gallon of milk or that his left it always feels that way that wasn't reflected in many of the prior reports well right but he testified at his hearing some of the prior reports were earlier but many of the medical reports substantiated that he had standards the legal standards for judging credibility he is credible and there is not substantial evidence when you weigh it from both sides but in any event he does equal the listing when you consider the obesity in combination with all the other factors under one hundred four and i ask you to please determine that the l j must like the regulation say we must consider and analyze the effect of obesity that is mandatory language and i believe and i request that you and force that your view is that that was it was not enough to refer to