addressing the issue raised in the court's recent notice regarding the effect of social security ruling sixteen dash three p on this case now the district court here rejected miss webber's testimony about emotional lability and specifically that she cried intermittently throughout the day because she found her testimony generally lacked credibility to the amenities straighted while judge wright not the district court so the administrative law judge rejected the testimony based on you says the district court i want to make sure well now so i thought this issue perhaps came up because the way the district court approved approach this case does want to make sure your oh yes ok missing the now the commissioner recently issued social security ruling sixteen dash three p back in march of this year rejecting that very kind of general credibility assessment and it's true that because it wasn't in effect at the time of the administrative law judges decision it would be unfair to hold her to that standard however the language of the ruling suggests but this was just a clarification of the commissioner's policy  for example the ruling begins by stating we clarify the subjective symptom evaluation is not an examination of an individual's character instead we will more closely follow our regulatory language regarding symptom evaluation the ruling also states in evaluating an individual's symptoms are adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation well the social security adjudicated process has been on adversarial for many years this is not something new this was a clarification this rationale that's stated in social security ruling sixteen dash three p is also consistent with a line of cases from this court that emphasizes that there must be specific reasons for rejecting specific testimony for example i'm sorry can i interrupt you so short the language you read that's really the operative language about character argue because well no sessions i want to have clearly in front of me but i can't find i don't like quickly the language that says we're clarifying can you point me to that language yes it's at the very beginning of the ruling and i've got a copy from the federal register it under purpose which is at the very top of the ruling an examination of individual individual character ok that thank you sure that the two cases that and these are just two examples are gregory v versus commissioner of social security these are just two cases from this court that had said that specific reasons need to be provided for rejecting specific testimony now even without addressing the specific issue of of the new ruling is that really what it's saying i mean it i saw in doing so we clarified that subjective symptom evaluation is not an evaluation examination of an individual's character instead we more closely follow our regulatory language regarding symptom evaluation i mean when i read that and then read through this as i was saying in this particular case and it wouldn't seem to me that one should reject the adverse credibility or as agree with the adverse credibility finding based on the marijuana use challenge even if you will the l g s findings that she couldn't that she could walk stand six hours in an eight hour day the challenge is that she can perform simple routine repetitive tasks and that because nobody even challenges those findings that one could find her incredible in that her testimony does not because not equal of findings if you will if i understand the question the issue regarding the marijuana use our position would be is a very general finding because there is no issue of substance abuse in this case the administrative law judge found did not find that substance abuse was an impairment she specifically made that point in her decision the only reason she raised a remote twenty year history of marijuana use with to point out the lack of truthfulness or candor of miss weber and we would submit that she didn't even do so in connection with her credibility finding she did so in connection with her rejection  lynn's opinion i understand that but i guess what i'm trying to figure out is what does this ruling if you will mal cause me to examine and determining her credibility so under the new ruling the focus would be linking up specific symptoms with credibility finding so for example i mean i don't i don't think that there are any findings that since we're not contesting the physical findings i'm not sure that there's anything in the administrative law judges decision regarding her testimony about crying periodically throughout the day that would fit under this ruling she only zero so the very fact that she didn't challenge certain they'll j rulings or findings that are contrary to her own testimony about her health and her particular situation that would not be enough to find a credibility problem well those particular findings that you've cited were specific reasons for rejecting specific testimony that the only general credibility finding that i really see in this case is the one regarding the marijuana abuse and perhaps the statement o j isn't supposed to look at a general condition of credibility in this case marijuana use which isn't the a l j did find that there was an impairment  could reasonably lead to the symptoms but as i understand as the l j said well i don't believe that she really is experiencing these symptoms  credibility on that ground which is not tied to any particular symptom and then the crying spells and the inability to work at a production rate testified well then she wouldn't be able to be employed that that's correct there was the judge did not address the crying specifically and provide any reasons in the record that linked the crying she didn't reject it for any specific reasons other than the general credibility assessment and the vocational expert stated that an individual who cried periodic wagering the work day or needed extra breaks amounting to four hours per month couldn't perform the jobs identified so that that one piece of testimony would be enough to establish disability in this case well i guess i'm again trying to figure out how to make this rule apply and was not credible i mean they'll jay rejected the lay witnesses because and the examining psychologist because they were based on weber self report the on her self reporting which he felt was not credible so then i was trying to figure out given this ninety six point seven ruling or scuse me sixteen point three ruling what is of i need to look at now to support this credibility find i i mean i have a tough time with the marijuana use a based on the fact she smoked daily between fourteen and twenty five and then she had she says she has no history but then she says she smokes or then she smoked two years before two thousand eleven that would give it more credibility in my book says it's not quite so far removed but if i'm to use a new ruling and not really make a decision on her credibility about those kind of things then i throw it out then i said well what else is there that's underlying this credibility well it seems to be and this is me looking at what the l j did and that's why i want you to talk to me about it l j found some things that her testimony would not be consistent with and nobody appeals sulks so can i look at that for an underlying basis of the credibility well if it's a generous you think their general credibility signings i would say no if their specific reasons for rejecting say limitations on walking or standing are ankle pain all the other types of chronic pain that she alleged those would have to be looked at specifically in connection with those impairments for example the judge in this case relating to the mental impairment talked about how her depression only began a few weeks  social security application was found that was another aspect of her credibility finding but that just proved to be untrue there were plenty of allegations of depression dating back to two thousand and nine but but if i to i'm trying to learn wherever at this point doesn't seem to challenge the findings that she could walk stand six hours in an eight hour day yet her assertion is she can't walk more than ten minutes seems to be i die cotta me which you're going to either believe the medical record or you're not going to you're go believe her and it seems to be be a reasonable basis to say she's not credible because what she's telling me doesn't meet what's in the medical record which is what the l j is found and what nobody dispute s on the other hand if we take another word the l j concludes that she could perform simple routine repetitive tasks and she says she has problem with memory and concentration will that seems and so if the medical record as the l g a has founded and nobody challenges says she could perform simple routine repetitive tasks and she doesn't say that that seems to be a reason to suggest that she's not credible in what she say i'm just trying to figure out it doesn't seem to me that the sole security ruling pre amps that analysis well there would be since it's not challenging that we can show are not supported by substantial evidence or that where the judge simply got it wrong cited red evidence incorrectly for example with respect to the activities of daily living the administrative law judge just misconstrued the evidence so based on what is being challenged if the quote were to find that there really were credibility issues then it would be appropriate to use that evidence to the next question i have since i'm having so much struggle with  man just to allow the sale j to think about this again given this new ruling that that certainly is an option we feel that this case has been pending for a long time and the judge had an opportunity to reject specific testimony and she did so and appropriately there is the general credibility finding certainly but she also rejected three medical source opinions and she also the reasons that she provided for rejecting certain aspects of the testimony are just flat out wrong and so this court has held in the past that giving l g s chances to remedy their decisions even under the prior standard as ninety six to seven p is not fair to the claimant ok we've we've taken you slightly over time let's hear from the government and then we will give you a chance to respond r s david burdette representing the acting commissioner carolyn cohen to please the court misjudging close by referring to the prior standard that's what she said the prior standard of ninety six seven p and i think that's revealing it is a different standard that was in effect at the time clarify or not sixteen three p which came out in march of this year rescinded ninety six seven people there would be no there would be no need to rescind if it were not changing in announcing a new is whether her credibility analysis met the standards that this court has set out and that ninety six seven p set out because that was the regime that she was operating on what what do we do with the problem that's just apparent on the face of the record here that the a l j made a number of mistakes and supporting her adverse credibility find for example but she was only one that she's begun to be depressed only very recently in other words this is kind of made up that was just that's wrong to take another one well she says that she can't or doesn't dress the children well she says  because they're not old enough to dress themselves and so there are some mistakes in there there's a there and what do we do with that because i'm not sure that have failed j understood the record properly she would have made the same madras credibility funny she might she might not have your aren't there is some missed there are there is at least one mistake which is the one about the depression that's correct as far as the children i don't know about that well it seems to me that the a l j says she says she doesn't doesn't doesn't address the children but since earlier said she did well in her oral testimony she says well they need they're old enough now they dress themselves so i don't see the inconsistency ok fair enough if the l j points to inconsistency is in the statements that is or has always been and will be up until we  decide to institute a new standard a valid reason for finding a person not to be credible i understand that but what i'm saying is she's given me at least two reasons to turn out to be factually wrong and i'm just talking human nature now if somebody tells me you know all three things and all three of them it seems to me are incorrect i might conclude that she's a liar on the other hand if she tells me three things only one which is wrong i might say it was a mistake so what do we do with the l j who says she lied about this she lied about that and she's wrong factually as to both well respectfully your honor that's a problem a she the l j was certainly right about at least one thing and i think a couple of things that are very important which are you and speaking of that the marijuana use that you went to judge smith now the case is not about a proposition that because she smoked for x number of years now she's a liar that's not what it is and this this this fact was blurred even here at all argument and it was learned in the briefs too it is not a ballot a remote twenty year history of marijuana use it is about the inconsistent report to two different medical doctors i go to my doctor and i say one time when you have any history of drug abuse is common an examination yes when i was fourteen to twenty five i smoked marijuana but since then i've been clean go to another doctor do you have any history of drug abuse yeah i was smoking it up until two years ago when i was forty five an inconsistency see on a pretty important thing talk to your doctor about that and it really is inconsistent what troubles me on that one is the that's not quite used to find her incredible the only place she discusses this is in discounting dr woodland's evaluations and that if he thinks that she was not a drug user that makes his evaluation suspect she doesn't say and i think she doesn't use the ns consistency in marijuana description as a basis for at risk credibility except by inference i can sort of infer from what she says some of the l j says that she thinks she's a liar because she's said these inconsistent things but i do with that well i think what you do with it your honor is make that inference and the court is and is allowed to make that inference because it's in the administrative decision now if the rule is going to be  judge fisher laid out what this judge and wants the rule to be if the rule is going to be that a b c d d a person claims five sets of symptoms whatever they are and for any o j to validly discount them then a must correspond to a one a specific remark that i make in that section of the administrators isn't bemis correspond to be one and so on down the line then we lose this case but i'm not sure that's what the regulation needs to be quite so rigid in structure my understanding is that if that and you were said you know she's generally credible but i can't find her credible because she misrepresented her marijuana use ok would you say that the regulation applies or not i'm not tying it to any symptoms she says i don't believe and therefore i'm going to not going to put in to my hypothetical the fact that she has was crying problem i think if i'm understanding the question correctly i think yes the regulation a plus and i think i think the regulation has been met in that case and i think ninety six seventy was met and honestly while we're on the subject even under the new regime although i've just said that it was a that that was a new regime that's only applying from march of this year forward sixteen three p goes on to talk about inconsistent statements so if you want to harmonize it even today and go on for we're going to talk about in consistencies in the claim in the issue of marijuana usage ok so the l j found that she had a condition and that could be expected to generate these disabling symptoms and if there are intense and persistent enough that's the fundamental premise of the new regulation that the l j house to go through this two step procedure for and my understanding is that this regulation in this case would apply to the second and that is the intensity and  k so if the l j was saying somebody who uses marijuana i don't believe so i'm not going to credit her statement about crime that's not tied to a symptom per se is just using the use of marijuana as a general reason to deny credibility with the what the regulation is attempting to say a o'jays can't do that now but this is not that this is not the use of marijuana i don't believe them because they use marijuana i don't believe them about the crying this is about i don't believe their credibility generally because they made inconsistent statements about the use of marijuana to the two different doctors and for a couple of other reasons you know i'm having trouble making the inference with any confidence the inference that you're asking us to draw that the l j disbelieved her because of are inconsistent statements about marijuana it's one thing to have a record where there is a record of marijuana use and so on and then in testimony in front of the arabs a she says no i don't never did it it doesn't come up in front of the l j what we have is she's going to medical treaters and she's giving inconsistent statements but it doesn't look as though she's necessarily i mean it's for once she says listen i used a very consistently between the ages of whatever it is fourteen and twenty five and other when she said well i last looked at two years ago just says no report of drugs but what we have here is that you're using what i think is a set upon a statements to doctors to say that she is a liar when dr woodland reports that she says well i wasn't a marijuana user i don't know that that makes her a liar so much as an unreliable reporter of her experience so i'm having a little trouble inferring from this record and from what the l g says and doesn't say that the j considers her to be a liar based on these inconsistent things not that she lied in front of the a l j it's that she said inconsistent things to the doctors i understand your point your honor i would say that whether she is a liar quote unquote or an unreliable reporter is not material as far as i'm concerned to the credibility analysis if she's an unreliable reporter then she's an unreliable reporter and the ala jay is entitled to take her reports with a grain of salt also the doctors reports that are based on her statements to them which if they are unreliable are themselves unreliable the problem that i have is and i guess i'm listing to my colleagues as well so it seems to me this case boils down to whether she's credible or not because if she's not credible then you can eliminate a lot of the people that the l j eliminated for relying on her statements which are in his in the l j's opinion incredible so pretty important that the basis for the credibility be stablished if i'm to swallow what judge which or judge fletcher said which i'm not sure i'm too far from that i don't know whether the marijuana use had a whole lot to do with the credibility determination i think it did as to win dylan but i'm not sure otherwise what is the basis i mean he presents two particular grade issues where he l j can be absolutely wrong and i think is wrong on one and i think probably is wrong on the other is he has pointed out what other basis do we have to make that determination that the ale chain made now i know what the district court did and i know that that's just a little bit different than what the l j did and i was presenting in fact a district court's rationale to your to your opponent when she was up here to see if she was going to bite on whether the district court was wrong or not but if we look at what the l g a did what we got well what we've got your honor is an administrative decision it's an administrative decision where the facts are that we've been talking about is included in the reasoning full stop now i think it is fair to infer and you know maybe it comes down simply on to whether you whether you know one does or does not think that this inference is fair to draw but i think it is fair to infer that when the l j includes in her reasoning these factors that we've been talking about and says this is why the marijuana use you're talking to the conflict about the marijuana use what is the conflict of about her alleged social limitations that she didn't and yet she has frequent activities with her family and  an extensive relationship with her boyfriend that dr with ron's report her daily activities or her activities in general as evidenced by the notes from and it came up in the doctors reports we see these are all these are all interwoven because so much of the evidence in this case deals with what was said to the doctors about her limitations you know all of the evidence almost all the evidence in the case is taken from what she said to a doctor at one time or another you know i go to the doctor and i say these are my limitations but what i what i started on this line with was the note that well i was so busy this this past weekend this is one of the notes and twenty levon i was so busy this past weekend that i hardly had any time for myself i was doing all kinds of things for my family is in tension with a claim that i am disabled because of social limitations and i can't see anybody because of my depression and anxiety and moderate lethargy as dr parker put it all of these things are in tension with the doctors reports so i don't think and hopefully this is helpful and either it will there won't be but you know i don't think that we can just separate the doctors reports from the credibility it's all of the piece and if the l j gave valid reasons and spell and she did spell amount she spell them out and that in  the administrative decision albeit there was at least one mistake true but that's and that's in case says that all the reasons for credibility analysis don't have to be correct if you if you got some good ones she spelled them out in a decision it's all linked together what she said to the doctors what her credibility is it all rises or falls together ok thank you very much put two minutes on the clock the government is asking this court to rewrite the administrative law judges decision the inference regarding the marijuana use was very important to this case and it just doesn't make sense to call miss webber a liar based on the admission of a reference in a report and we don't know what was asked and also it doesn't make sense to me from the beginning is why would she disclose marijuana use so freely to another doctor and to a mental health provider and then also talk in great detail about much more recent alcohol abuse alcohol abuse is what was relevant to this case a twenty year old history of marijuana use just didn't seem relevant when we had it's a twenty year old history with now that we don't we still don't know what we're what we're doing is we're trying to cobble together we don't know what the questions were that dr with len ask then we're using that without any further questioning at the hearing we're using to inconsistent statements even though there are lots of other consistent statements a woman who tells us she has memory problems she's got mental problems she's depressed we're we're taking out a statement made to a doctor that may or may not have been made there were other remarks in dr woodlands report that were for example about family that he didn't note in certain parts of his report that he noted in other parts of his report i feel that we're picking a statement from his report we're to turn this entire case and make her into a liar when there along the inference just doesn't seem reasonable given her fit her willingness to disclose much more recent and relevant alcohol abuse will and the stated again i guess my problem in the sense of calling her a liar the question is whether or not israel j had a sufficient basis to conclude that she was not credible and further if we correct the jays mistakes and say now do you still think that she's well i'm not confident what the answer would be well you know the plaintiff does have the burden of proving disability ultimately but the administrative law judge has to provide substantial evidence for her findings and ultimately at step five has to has a burden of showing that there are other jobs in the national economy that the claimant can perform in this case based on testimony that was improperly rejected the vocational expert identified that miss