it please the court stare a bore from atlantic beach florida for the apollo aunt kellie mitchell this case presents an important issue regarding whether the administrative law judge set forth the requisite specific and legitimate reasons for rejecting a consultative psychiatrist who indicated that the claim it her ability her stability was temporary and she would collapse under stress social security rulings and regulations provide that one of the important functions of mental demands of unskilled work is how a person responds to work pressures whether they respond appropriately to supervision co work or w was diagnosed with bipolar disorder that that her stability was only partial and that it was very tenuous and on any given day with additional stress she was likely to be at risk of a gaffe of as low as forty a global assessment a function which is quite low functioning that her ability to relate to coworkers in the public even at baseline was moderately impaired and likely in a likely a few days a month would be of a severe impairment and that with sustained exposure to workplace stress her ability to relate to the public and coworkers was likely to become severely impaired and at the probability of functional deterioration due to typical workplace stressors is very to use it but that isn't the real issue the real issue is did the district court properly way dr wong because he was not a treating physician well in this case case there are no actual treating physician opinions but there are evidence from the treating physicians and one the reasons the a l j provided for rejecting dr one's opinion was the a l j found that mrs mitchell's condition had improved and the evidence from her treating for example october of two thousand and nine this was two months after dr juan examined her this is in her treating physicians records on mental status examination she was her effect was elevated she was paranoid she had auditory hallucinations and she had limited insight her medications were adjusted two months after dr wong saw her a year later in august of two thousand and ten this is one year after dr wong evaluated her she a diagnosed with schizoaffective disorder an impairment dr one noted had been present by history but didn't find he found bipolar disorder at that time of that examination at that time her met on mental status in animation psychiatrist on the record other words no that's right i mean there's no there's no that is the case but the fact that dr wong is not a pretty physician makes it easier to discount his discount be easier to discredit an examining versus a treat and you still have to look for the reasons and whether they were specific and legitimate the judge gave three reasons he said that the psychiatrist said examined her three months after she was released she had an inpatient involuntary hospitalization for eleven days and that she was examined to close in time and that furthermore he said the that she improved after the dr wong examined her and we showed in our brief there were seventeen instances when the gas scores by the treating providers were lower than dr wants score so her condition did not improve the judge said she improved the record does not support that the train providers did not support in a proven on her condition the gaps were less she continued to have to loose  she her in fact her diagnosis actually could be became schizoaffective disorder a year after doctor once saw her which was the diagnosis she had when she was hospitalized for eleven days in the involuntary hospitalization so her condition clearly did not improve doing but that she was doing better than another point that's very important is that there are only two opinions in the file we have dr wong we have dr loomis dr loomis is a state agency not examining psychologist and if you look at the records from d he there on page three twenty three of the record if you look at page three twenty three of the record these are notes from dr loomis and dr lumet says at the bottom of this page he reviewed the case and then he says agreed but above and then he says paperwork that doesn't adopt the c e s medical source statement that stated the bottom of page three twenty three so you have an inconsistency that at a minimum should have been resolved another point i want to briefly mention i consultant review because above that is a person named charlie person named charlie on august thirty first oh nine writes a note to dr loomis these are this isn't colonel notes with an agency it appears n p s t is appropriate that means non public simple repetitive tasks is appropriate for you pardon the last the last underneath that it says this is from the psych m c reviewed agree with the report on page two twenty seven to two twenty eight it says functional ability slash medical source statement what i read earlier was this finding c made in the medical source statement that's a doctor's opinion about an individual's functioning so you have the state agency doctor agreeing with the medical source statement at least in the narrative here it is not reflective in the findings that were made on the actual  s that was completed if i may make a final point here is that the is very important point here is that the l j found that this woman had moderate limitations of concentration persistence and pace and th testified that with those limitations there was no work she could perform she could not perform that she didn't you cannot perform the three jobs they found this is another important point and we allege that the l j should have found and his findings of moderate limitations of concentration persistence and pace should have been but included in his hypothetical questioning and his findings of this case i'd like to reserve my remaining time if i might ok oh here  go remember me please the court henry chief or carolyn colvin acting commissioner of social security deal j in this case correctly found it clean it was not this able because he recently concluded that the evidence showed that with  condition improved enough so that she could perform simple retentive repetitive tasks with restricted contact with others no with respect cultivated examiner dr one's opinion the elegy gave valid reasons for rejecting that gas cores are simply unreliable if you were to look at plain is opening brief on pages one thousand and twenty should provide a really long citation to all the gas corps there were lower than sixty but if you were to look at those actual records it shows that those gas cores do not really reflect a contemporaneous assessment of claimants mental condition for example claim and cited two sore three eighty eight that i'm sorry she cited a surf three eighty five that's october fourteenth  no with the gas score fifty four but that treatment no simply reflected a phone call between the nurse in a walgreens pharmacy and that apparently receive a gas score of fifty four the same is true for a claim insight to  the person that signed the form but these gasworks of fifty four are printed on on i believe the top right of all these pages of gas were fifty four fifty four fifty four and these gas cores also don't account for instances after a where claimant actually improved for example we have an august two thousand and nine re pour where claimant said that she was feeling better with the increase in her medicine and that she felt sixty percent back to normal then we go to november two thousand and nine and she says she's doing better she can ignore her voice if she denies confusion then she improves again she's able to go to these group therapy sessions and those and those are pretty positive based and she's able to relate with others that she's able to respond appropriately and in finally in february two thousand and ten she says that she feels better with medic patient changes she's able to do her usual daily activities real to me better now and i know they claim it has put in some instances where where she is complaining of paranoia where she is complaining that she is hearing more voices but the question here is was the ale j s review of these treatment records after doc tasks and also have basically restricted access with others let me ask you something that you do a lot more cases than i do so i just want to know and if i'm incorrect i'd like to know but it looks like under the last part of their analysis that you have the burden to show what their jobs at this climate can do and so you ask a question of a vocational expert based upon the residual usually residual functional capacity at their jobs you can do in that visual functional capacity is found on page twenty two and then made more clear on page fifty nine as i look at it and based upon the original statement of what the usual functional capacity was a vocational expert found there were jobs that this person could perform is that true based on the residual folks the capacity with the additional limitation no without without yes there were part of that so that's how you carry your burden that this person could work is that question that answer it there's such jobs but if you take the limitation that the administrative law judge found which was she had moderate difficulties with concentration persistence and pace which is we accept that that's true because he found that then there are no jobs she can perform according to the vocational expert correct but you know your honor i disagree with your correction whatever occasional expert said that there's not any if you include that limitation correct statement the record is not correct your honor but the ale jay did not actually a doc that limitation into his residual functional capacity funny the l g did find that claim it was moderately limited it in concentration persisted in pace but he did that steps two and three which is a separate analysis from the residual function of what we do know that if you go to your burden to show their jobs which you have to show that this person a corner of this vocational expert can't work because they have this so what you're saying is because it limits the ministry of law judge concluded that simple job could be done that it doesn't make any difference at the that the location of expert says this person can't work because we have to just adopt page twenty two of his decision he makes that final list to claim it has moderate difficulties with concentration persistence in pace but that finding is that steps two and three of his decision what he's analyzing severity of the impairment after did not adopt the wii's testimony because the l g did not agree they claim this residual functional capacity should have included explicitly moderate limitations the concentration persistence of pace what he did was and were were going to s real serve end of the server dr loomis is conducting the psychiatric review technique and as part of that technique he has to rate the functional limitations in the degree of the limitations and dr loomis does this three fifteen and it serves three fifteen you'll see that dr loomis found as the ail j did that that the greedy the severity of her mental impairment was that she was moderately limited in her building to maintain concentration  and now this is steps two and three now dr loomis looks at these findings and says ok let me translate these into functional limitations let me tell the l j how does this moderate limitation specific tasks that relate to what someone can do at work and at three eighteen dr loomis says ok she is moderately little limited in concentration persistence in pace but with regards to sustain concentration and persistence she the clinic still carry out very short and simple instructions but is moderately limited in his ability to carry out detailed instructions and help taking those specific limitations she didn't translate has no job she can find how can you find i mean she may have residual functional capacity but they've got all jobs that expert on page sixty correct and that's in line with this course this is your stuff daniel's and so then we need to have some other evidence from the record supporting that there are jobs that you can do to the vocational expert with the residual for the regional residual functional capacity the reason the hypothetical based on the residual functional capacity finding work if the vocational expert did it in a fight three jobs they claim it what i mean but then the same vocational expert says if you and the other limitation which you have found your hands those jobs disappear so and what's left i mean we still have to have somebody in the record saying even with this limitation she can still find a job and i don't see anybody you haven't pointed me to anybody saying somebody like that can still find the job somebody has to be out there saying that you can and i'm looking for you to point to me who in the record says it was the full kitchen all expert when he answered honor i did want to mention that as you've noted in the l j decision on page twenty two the a l j specifically acknowledge that miss mitchell also experiences some auditory hallucinations which may interfere with her ability to concentrate this very important finding that he made and with that finding as you've noted the vocational expert testified that with moderate limitations of concentration persistence and paste which comes from the that there be no it would preclude the charts at the  a decision which is not very long he says she had moderate limitations of concentration persistence and pace and then another part of the decision and incest in the residual functional capacity he didn't list any concentration imitations and we cited in our brief there were numerous circuit published circuit decisions from around the country which upheld that moderate limitations of concentration persistence and pacer not subsea md in a simple repetitive task and i think there the the issue here is that after dr ripped the file even the hallucinations were evident after that so dr loomis saw the file earlier on the case and then we have additional medical records that have come in and as i mentioned in my in my initial remarks definitely show this woman has hallucinations and she continued to have them a year after she was seen by by dr want this is consistent with the episodic nature of mental illness and this court held in the hall and case versus mass and narrow it cited in our brief that the fact that a person who suffers from severe mental impairment impairment makes some improvement does not mean at the person's impairment no longer seriously affect her ability to function in a workplace the issue here is how she would function in a work place wong said that she would have great difficulty functioning in a work place and that there and subsequent to his examination the record is not show with her condition improved it shows that even with treatment with consistent treatment she still continue to long held that that that the opinion of a non examining physician to the to the extent the course going to say that's the finding that he adopted dr loss to finding is the is the commissioner argues that that cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining or a treating physician this was the holding in the leicester versus chaytor case as well as the ryan versus commission of social security cases so here we have a situation where dr doctor wants opinion is the is the only opinion by an examining physician dr loftus was not an examining physician and as i pointed out earlier there's an inconsistency in any of that with his opinion to briefly mention that the a l j also failed to properly consider the lay evidence from miss loftus and the district court found that yes in fact the jays reasons were not valid here but it was a harmless error you're bringing this argument up in your