thank you just clifton and me it please the court my name's mar caldwell i'm representing ms ruiz this morning in the social security disability appeal taking my cue from the court i coach keep track of my own time but i am going to try to there are several issues in this case we're going to take them in the order that i think are his most dispositive and of course the most dispositive piece of evidence in this case is the assessment of the treating nurse practitioner p mask is correct your honor correct a certified physician's assistant and the reason i'm emphasize that is under social security ruling six three p it's a certified physician's assistant that's considered another source that is qualified to give an assessment as to the severity of a of an applicant's impairments so this isn't the type of physician's assistant just comes in and takes your blood pressure before the doctor walks in the front door we're talking about a higher level of skill than that as again recognized in the agency's own ruling so ms mask has a  considerable amount of training experience with ms ruiz and she gives assessments that lead to uncontested vocational expert testimony that those limitations would preclude sustained work now up against that the ale she reached back to the doctors who never laid eyes on his ruiz who completed to sussman forms as part of the initial and reconsideration determinations which as you know were going by the state agency before their bequest for hearing is filed and she said those are entitled to the greatest weight what's very interesting about that is the court is aware of the l g also gave little weight to the opinion a consultative examiner and what was the reason that the g gave gave the reason that the consultative examiner did not have the ability to review the entire record including the back surgery that this woman under went just two months before the year that very same rationale applies with even more force to the opinions of the doctors who never even laid eyes on his r so the ale g s decision contains its own refutation one question for you counsel about the form that the nurse mask filled out was there any evidence in the record as to how this form was completed did she i don't recall any says paperwork to be filled out for disability i guess what i said i answered your question here's my question is that it's one thing for someone to take a form like this and i'm looking at e r five forty nine and check boxes is so the one thing if  the nurse actually administered the tests and then as she was a minister in certain tests she would check the boxes it's another thing if the nurse would simply ask ms ruiz questions and say you know describe your pain oh it's intense checkbox intense was there any testimony in the record or any evidence the record as to how this form was in fact filled out was it the nurse actually doing tests and then based on that filling out the boxes or was it the nurs of that whatsoever the commissioner makes quite a bit about the fact that on the very day that this form was completed n p mass did not perform a physical examination that is true but that doesn't obviate the long term trading experience that ms mask had with ms ruiz and neither it also ignores and this is an extremely important point in my opinion that it was in p man asked who referred t claimant for the diagnostic testing that showed severe to gender give spinal changes that eventually in april of two thousand and eleven a lead to the spinal surgery so it's not a matter p mask performing an examination on the very day that she completed this form it's a matter of n p mask having a laundry to treating experience with this individual and being aware of the diagnostic testing that n p mask herself ordered so i'll be going to your point is that even if that day was a check the box exercise it was not based merely on what more maurice was saying it would be based on that the history between this nurse and this patient absolutely absolutely dr muskets you're going to have a little trouble hearing can i ask you to return the favor and yelling to the make run a little bit for yes it would be pretty hard for me to go through page by page but of course my brief doesn't do through pay by page but she had positive findings on examinations on i'll just pick one to  spinal surgery that she was testifying about her condition and i think it goes to her credit because she didn't say oh this didn't help me at all i'm just about off as i've ever been she actually said this has improved the pain going down one of my legs so she did report some improvement but again that does not obviate the other symptoms from which she was suffering which was primarily the the primary low back pain  other than a note that i recall you know doing well which means you know you don't have an infection from the surgical site and things along those lines but in terms of functioning no but i would also make this point a point that i think is frequently overlooked the claimant testimony is itself evidence and i criticize that in my brief because we have the standard language in the l g a decision that the claimants symptoms are not credible to the extent that they're inconsistent with the residual functional capacity determination well that's flipping everything on its head because basically what that saying is i have determined what i think this person is capable of and they've said something different so therefore they're not credible claimants testimony itself is a factor that should be considered when determining the claimants residual functional capacity so you don't determine the the claimants capacities first and then say well the claimant testified to something different because the claimant isn't credible that circular reasoning you consider the claimants testimony as evidence in considering credibility of that testimony you factor that in t determination of the claimants work passages so i guess i switched a little bit here from from talking about physician's assistant masta talking about the the credibility determination but i think it's logical to say that the credibility of a claimant's testimony is something that is important because obviously any treating source is going to rely to some extent upon the patient's reported symptoms in that regard just to very quickly switch over because i do want to reserve my time  a relied upon what were recalled activities of daily living there was no indication in this record at all as to the extent of those activities she did some walking she walked or her niece to school i noticed when i was reviewing the record last night it one two two she put in her report it takes me forty minutes and it's two blocks away so that gives you an idea of how how fast ms ruiz was able to move so there's the credibility determination is flawed but there's an underlying logical fallacy and that's the fallacy of determining the works the work passages first and then using that to say that the claimant is not credible good morning may please the court my name is chad troop and i'm here on behalf of carolyn colvin the acting commissioner of the social security ministration they will jane this case crafted an extremely narrow r f c finding that for the lesson of for rangers then terry work doubt on numerous different limitations and impose limitations that went beyond what any acceptable medical source believed were necessary if for example the state into the reviewing physicians opined that she could perform a range of herbs capable lifting up to twenty pounds this is catching up with what's happened in medicine today it's it's i don't think it's unusual for people to be treated by somebody who doesn't qualify as an m d such as modern medical economics and in this case i understand that a physician's assistant is is it qualifies as an as an other source not like she's a physician but she is the person who is most experienced with the claimant and when i looked at the decision as to why it was that source was discounted i didn't find much specific i found conclusionary statements in particular he says that there's not support for the medical evidence does not support these restrictions or the activities of daily living described in the record and then there is that the jump and the term doctor is used they did mean dr wood says it appears the doctor apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant and seemed to uncritically accept as true most of not all of what this claim reported and that's kind of the end of it is that is that the only basis for rejecting the conclusions or the recommendations the physician's assistant no your honor and i think that i mean i guess to go to what judge owens was asked he was asking what was the basis for this i mean if you take a look at miss masks report from that day she did not conduct any physical examination on that date but you and it's not unusual to send a physician a form in this case it's filled out not by a physician but to send a form or somebody who's that person's patient and a lot of our forms are checked the box type forms is there any indications you just make it up as she's going along or or didn't base the answers in the form to the experience she had with that patient i believe so because not only did she not conduct an examination on the date that she rendered this opinion  her treatment it's from months prior to that i mean months and may of two thousand and ten april two thousand and ten they all failed to contain the type of clinical examination of findings that you would expect to find from some of the disabled they didn't contain any sort of indication that she was having trouble with her gait they didn't have any indication that she had any problems with her motor strength the only thing that you really see in those months leading up to that assessment is maybe some slight swelling of her lower extremities but for the most part thing i think that the l j did here that i think the l j gave a very detailed credibility finding discussed why the medical evidence did not support mr rees's testimony and i think that that l j here incorporated that prior analysis by reference here i mean if you take a look at this paragraph he says you know yet as explained elsewhere in the decision there is this good reasons for questioning the reliability of the claimant subject to complaints and so i think he's incorporating by reference that prior analysis where he specifically discusses the fact that mr we's had a normal gait normal posture normal range of motion normal motor strength when discussing that credibility because jay's conclusion was that this form appeared to be based largely on their subject complaints so i think that i think that it would be you know unnecessarily technical to require the l j to engage in that same analysis again repeat that same analysis when he's incorporating that prior discussion by mentioning that could see in certain cases that being a very serious problem for the applicant where is directly related to the you know if someone can't walk but they're not going to physical therapy i can see that can you explain here why the missed appointments or missed medical procedures that is a reason legibly missed why is that significant to the disability at issue in this case misreads as a lead share that after she had surgery and i believe it was november two thousand  that after that she was unable you know unable to walk couldn't stand on one leg and she did not report to any follow up exam and or follow up appointments after her surgery for a period of four months now when she finally showed up to the doctor four months later and she didn't allege that she couldn't show up to the doctor because of her impairment or because she was unable to afford the treatment which you know an l j might find that's inexcusable reason here she made some mention about her it was due to her living arrangements and some family issues could show up to a doctor's appointment regardless of what her family issues are under you know unexplained family issues or living situations or is there any authority in the regulations or the case like you're aware of that would permit a court to say almost like a penalty saying look if you want benefits you better show up to the doctor and he don't show up to the doctor as a consequence of that no benefits well certainly that mean in the you know in the credibility regulations that for sixteen nine twenty nine  it indicates the judge should consider treatment and the failure to attend these treatment is a factor that is you know jay's regularly use and are justified to use as this kind of credibility but as to credibility not almost like from the criminal law some sort of exclusionary rule there's no sanction other than being able to hold it against them in terms of credibility that you're aware of there is there there is if someone is able to restore their abilities or if someone is able to become not disabled by attending treatment the judge can discount can find they're not disabled if they fail to do that or that's not what the judge did in this case so i would say that that's not relevant to this case at all and there are different regulations that it's outlined in one of the commissioners regulations but that one of the most striking things is that when miss ruiz went to the administrative hearing she testified that she had never left the house for a year and a half prior to the administrative hearing without using her walker she was very clear said she she had never left the house for a year and a half while the medical records show that she consistently presented to her treating physicians during that time and was not using a walker at any of those appointments in fact even just three months prior to the ministry of hearing she admitted to or treating doctor that she had not been using her walker to emulate  so the medical record you know directly contradicts mr rees's testimony about her limitations which i think is a very strong you know basis to discount mismatched credibility you know in addition  j didn't find that she was able to work or she was not disabled because she was able to care for a family or walk or needs to school rather they o j just found that the evidence of those daily activities was inconsistent with her limitations when she claims that she can't walk she stand on one yet she admits she's walking with her dad for exercise and when she's walking or needs to school and she's and she stated that she was true that she said it took her what twenty or thirty minutes to walk the two blocks i mean she reported however that i think they all day has looked at her contradiction is based on her statement that she walked her knees to school isn't it appropriate to probe into what she said to see if that's really a contradiction i'm sure i mean  that's certainly is but i mean if somebody takes twenty or thirty minutes to walk two blocks doesn't that suggest a limitation on capacity i mean i believe that  well i think that if you look at the examine it at the physical examination records throughout the record none of the doctors in the record none of them have when she walked in found that she was like walking with a gate or that she was walking slowly the examination records through throughout the entire i know a different experience i know that it's always it's always on the record when when people make when make these examination findings it's like it's a common finding that all doctors and physician because i don't recall what her exact time i know she said she was unable to engage in april long standing and they all j commented that subjective allegation by allowing her to alternate between sitting and standing at her own volition during the workday so they o j specifically accommodated that by not requiring her to engage in prolong standing or sitting i allowed her to alternate between those two positions fact that she regularly had normal examination findings normal gait normal posture normal motor strength no more range of motion there those type of clinical findings don't support the type of limitations that she's talking about as i discussed earlier her you know when she presented to the doctor you know she the doctor starting when she presented this mask mismatch the only record of her subjective complaints indicated that she was having pain that prevented her from working didn't conduct any physical examination on that date didn't cite any clinical examination findings in her report there so i think that you know when you take a look at it she didn't conduct examination that day she didn't support her opinions with any kind of reasoned analysis any citation to any of the medical sources as opinion one of the things that gives me trouble in working through these cases and this is a prime example the a l j thought was unspecific and simply stating the conclusion and even your brief when it got t discussing that subject page twenty nine you're talking about how it's inconsistent with other substantial evidence of record flooding multiple my example medical sources opinions there's not a single citation there to anything now earlier in the br there's a history given but it's kind of being left to me to figure out what's it inconsistent with because on page twenty nine your brief didn't tell me and the a d l jay never says it all so how we supposed to figure out whether it's consistent or not if we're not pointed to what opinion that says the there's inconsistency with this medical opinion and this medical observation and rejecting the p a's report yes yes your honor and i believe it is b to it i believe that i believe that when he incorporates says it has i mean i think that i think that the jades gave i mean if you take a look at i mean when he's talking about the i mean the medical examination i was talking about the level of you know functioning that is not and this is why he played by probably the l j and the briefs are written give me a lot of medical history and then later a conclusion and the conclusion would be a lot more effective and believable than fact you point to what in the medical history  otherwise doesn't mean a whole lot to me i'm not a physician so i hear what you're saying but i sure wish the l j would do the work and your office would do the work of putting those two things together instead of expecting us to figure out what it is  he to help out the commissioner but i did do it ok and on page my looking at on page twenty the commissioners brief they say there's multiple opinions here or twenty seven dish thirty nine that's dr is not examining stated since you doctor you're twenty seven dish thirty four that's dr decide another nine examining doctor who filled out an assessment form before the application was filed as part of a prior application  three three eight doctor backlund that's another one examining state agency physician filled out an assessment form in march of two thousand and ten so i guess i did the commissioner's job just there but i still think it helps my client's case because what i'm pointing to and what we think i think we need to keep in mind here is that is what the relied upon in her assessment of ms ruiz as work capacities doctors who never didn't sometimes she didn't and if you look carefully at her testimony at your nine to one in your are nine one nine says sometimes they used and sometimes i didn't but  specific question that her counsel gave to her was has there ever been a time during this particular timeframe where you've left the house without the walker that may seem like i'm splitting hears here but that's not the same saying i was using the walker all the time and what that means is i have to walk or available to me for those times when i did or did not use it but she's very clearly said early in her testimony that sort of depends on the day i've got good days and i've got bad days and again this goes to somebody who's being truthful now you said something just clicked in that i wanted to address at the very beginning of opposing counsel argument you basically said well the regulations haven't kept up with reality and you know i've been seeing minors partition as i've been seen by physician's assistants i know exactly what you're talking about but i think the regs are what they are the regs are what they are but if you please refer to my opening brief of page twenty one i refer to the ruling at zero six three p where the commissioner says the regulations that we use to evaluate treating physician opinions are also regulations that should be used to evaluate physician assistant assessments and that's where with all due respect i believe molina missed the boat molina treated a physician's assistant assessment as if it was late testimony the commissioner herself does not treat physician assistant assessments opinions from acceptable medical sources at four sixteen point nine two seven can be applied to opinion evidence from other sources and that's where i think the commissioners saying you know hey those regulations do apply to this evidence and i think i think this court's discussion in some of the printed or published cases is pretty confusing because it's hard to figure out whether this court is treating that evidence as layperson evidence which i respectfully submit it should not or whether it's really looking at the commissioner's own ruling which is recently has brown hunter in november said are governing the commissioners not regulations i am running out of time i don't want to take advantage