you may call the next case when you're ready morning my name is michael rake i represent the appellant james around had like to reserve two minutes pleas for a bottle or may please the court this is a social security case where the  argues that the non disability finding is not supported and that the ael j did not apply the appropriate legal criteria in denying her claim for social security benefits both parties agree that jane surrounds drastically limited by her medical problems but is as is often the case one specific limitation is at issue here mrs sarratt suffers from a mass located on her kidney which causes her atrophy askey mia very severe swelling of the feet ankles and legs up to the knee this is noted at multiple points throughout this record her doctors have advised her to elevate her feet above her heart level in order to reduce that swelling in addition to the elevation of her life the first is at five eighty and five eighty two this is after an e r visit where as you say nurse lawson indicated that she needs to alvey her legs but what is important about that is the doctor wives who treated her that day indicated in a statement that he agreed with all pertinent clinical information including history physical exam and plan so with the advent of managed care although it is a nurse who actually delivers those instructions the claimant argues that dr weiss gives that opinion and signs off on that opinion secondly dr david allen is a doctor who saw her in the emergency room and this is a transcript six ninety eight and while that doctor doesn't have a treatment note saying that she should elevate her legs she was handed instructions that told her to elevate her legs when she left the e r that day and finally the claim testified under oath that her doctors have all advised her to elevate her legs including her treating doctors so your honor we respectfully would argue that this is not just a  nurse saying so this is actually medical doctors and this is also as we are going our brief a elevation being recognized by the federal government as a specific treatment for a  honor we would argue that in rejecting this specific limitation is the judge committed error because the vocational expert testified that elevating program or i'm sorry your honor elevating one's legs would rule out her past work and all competitive employment that's one thirty three of the transcript so it is an important limitation and one that the judge conspicuously leaves out of his residual functional you do have she goes to the doctor and if i'm understanding this way there's some feeling that it may have been the way she slept and in the recommendation is that she should it or legs and that that might avoid it but it's in a specific situation in a specific context and it's never incorporated into the evaluations that deal with what she can do and in it's not and none of those people who are expressing her limitation say that she has to keep her legs elevated t wo hours a day or something or you know twenty minutes out of every hour so it's not there i mean she presented with that symptom once but it's not in the record as a first that it does occur throughout the medical record transcript for fifty one five seventy five seventy five eighty nine sixty two six eighty nine seven eighty seven eighty nine multiple times throughout the record swelling and idiom is noted  significantly the ale j finds as a severe impairment swelling of the leg secondary to mass on a kidney he finds that as a severe impairment that would theoretically result in a limitation and then  finally i know that the government argues in their brief that swelling of the legs was are a result of her postural situation because of her sleeping but that doesn't address that the ale jay found that is a severe impairment and also it's much more likely that sleep positioning is an aggravating factor of an underlying condition she says a transcript eighty five when in the party your honor mentions that her feet were on the ground and that's how she slept i'm sorry that's five seventy eight of the transcript that her feet were on the ground when she was sleeping and that's why they were swollen that's the same position her feet would be in a sedentary job on the ground and that's something that  wise a nurse lawson is not actually an opinion which i think you're alluding to presumably because it was not completed on social security forms or in response to a questionnaire but we would argue that that is exactly what makes it the most credible opinion in the record this is not narrated for adjudication that was not generated for the government for their decision it was not generated for the plaintiffs for in our auditors this opinion came in the form of a specific instruction from a doctor to his patient and that makes it extremely credible and worthwhile to consider the judge didn't even mention to the judge didn't even mention the name dr wise nurse lawson or that opinion whatsoever and it's too strong for me to say that a o j was interfering with a doctor patient relationship i don't want to argue that because it's too strong of an allegation but what i do want to argue is that the able j appears to be saying that your doctor's advice to you and his treatment plan for you is not relevant to my determination and i not only am not going to consider that in my decision but i'm not going to explain why i am not going to consider it and  i think that might be the biggest problem is that he doesn't explain why it's not included or why it shouldn't be to some degree consider it it's only after that becomes the limitation that argue is the most complete actual r f c opinion in the record when you say that there's an opinion that needs to actually address her limitations dr moise opinion does in fact the a jay says that it's it is consistent with objective imaging and clinical exam but he rejects the one part of that limb opinion that would result in a favorable outcome he rejects the sitting limitation dr mccoy says the claimant cannot very very long and the l j rejects that he leaves that off because from a video teleconference he saw the claimant sit through a forty minute hearing and apparently believes that that's falls below the minimum standard of review for an examining source and it is disturbing because of how it's they leave one section of the opinion out where as they give way to everything that allows the judge to deny the case the reason why it's so important for the ale j s in these situations to describe what weight is given to the evidence is because the social security administration doesn't want a claimant to be baffled or confused at why they're treating doctor tells them that they're disabled or give them some advice and then the government says they're not and that they're that they don't have the limitations that their doctor says and i believe that we can understand within public policy that at least an explanation of why a treating source opinion is rejected is necessary here and that absolutely doesn't exist in this case there's no mention of those doctors at all but the government also appears to argue in their brief that even if dr wise's statement isn't it is an opinion it is patently deficient opinion and we would argue that that's not correct to the opinion is as i said a statement from a doctor to his patient s r ninety six days five p requires that all medical statements need to be evaluated and that's not the case here i'd also like to briefly mention credibility issues in terms of credibility the a o j discredits the claimants testimony saying that her statements are not credible to the extent that they are inconsistent with my residual functional capacity assessment we would argue that that is  an improper analysis under twenty c f r for for fifteen twenty nine the statements of the claimant at the hearing need to be reviewed against the actual evidence not against his residual functional capacity assessment there's some back and forth on this between our briefs but i think what i want to make clear is that it we believe that it's not appropriate for an ale j weed is appropriate for the ale j to say i discount their standing or walking limitations because the evidence shows they they ran a marathon but it's not appropriate for the a l j to say i discount their alleged standing and walking limitations because they're inconsistent with my functional abilities that compares it to a decision that has already been made rather than comparing it to evidence that is paramount  argument i know you said dr moore there are some record reviews that were done by people who didn't examine your client but as to physicians state agency reviewing sources and there is another treating physician her longtime family physician dr tool and that opinion is to some degree problematic because it dr toole says that she has given her opinion based upon the claim and subjective complaints recognize that that's not as strong of opinion as dr moise because it's not based upon clinical objective evidence but i would argue that it's not worthless because the claimant statements and complaints do matter otherwise why even have a hearing i see i'm out of time thank you team of the lower extremities that you must have a restriction included free to elevate your legs and our position which was noted in the district quest decision is that is not the case there were four physicians five medical opinions and then those medical opinions indicated that the claimant needed to elevate her legs and that none of the doctors attributed any of the limitations in their opinions to that specific condition they are their findings are opinion evidence and they did look at the evidence and neither one of them there were two physicians and two different stages of the proceeding and neither one of the doctors indicated that she needed to elevate her legs statement was while there may be no opinion evidence there is other medical evidence that supports her need to elevate her legs only to the so in the district court the claimant conceded that there was no opinion evidence so the characterization of that as opinion evidence in this court is is misplaced and that distinction is important because there's a different standard at evaluation for medical opinions and other  and in this particular case there there just wasn't any evidence medical evidence medical opinion evidence that she needed to elevate her legs and even with respect to  do it at the end of the day well i think because the l j had five medical opinions and none of the medical opinions mentioned elevating her legs then it was ok it was proper for the a ga to look at a thorough review of the record and discuss the relevant evidence in this particular case there were over eight hundred pages almost four hundred pages of which were medical evidence and the had to condense the his discussion into what was most relevant and they spent a fair amount of time discussing the opinion evidence and as i've noted it none of it mentioned her elevating her legs and with respect to th treatment record and i would like to address the counsel's argument that we are saying that it's not an opinion because it was not in s s a form that is not the government's position the government's position is that coun in the district court at mit it that it was not an opinion and also even if it was an opinion and medical opinion is the most you can do despite your complaint despite your impairments so a limitation to elevate does not tell you anything alone and this was not this was not a case where the plaintiffs said my feet were just over the ground i was she said she slept in the upright position with her feet hanging over the bed so a more reasonable reading of that is actually elevate your legs while you're sleeping in my opinion not for you to elevate your legs during the work day when as the court noted there was no discussion of what she could do during a workday and because there was no discussion of whether this needed to occur during the work day how often or how high she needed to elevate her legs there is just nothing that the a l j noted dr malloy is sitting limitation with the ability to sit only twenty minutes at a time is not supported by the logic to the record in addition to her sitting and hearing doctor's opinion was not entitled to wait and we would also like to know would also like to point out that that limitation by dr wise was not supported by his own his own record he explained when x what led to his findings he said back in the pain limit push pull been reaching and repetitive movements so w would like to point to a treatment record that was provided on the same day that he that he provided this opinion that is not with the doctor himself was was relying on when he assessed a specific limitation and we have dr wise at his word and because he he explained that it only limited it to pushing the pulling the reaching and the repetitive  opportunity to explain why she could not work she was axed three different occasions she never once mentioned her inability to sit was something that limited her and the hearing was her one time to tell the judge ability to walk and her ability to stand and so i do think it's important that we also have to listen to the claim in this case and because she didn't mention any limitations sitting at the hearing it does into question whether or not her her sitting limitations to her allegations of sitting limitations is a severe issue now complaints and in this proceeding and also moving for opinion and in the can in plainest initial brief to this court she did not argue that the ala j improperly evaluated dr tools opinion however in our reply she did make that argument and because she she has pointed out there are significant problems with the district court noted that not only the opinion wasn't just wasn't just based on the claim of subjective complaints it was it was inconsistent with plaintive treatment history her daily activities it was also not supported by specific findings so this wasn't just an opinion that was not given weight for one reason j comparing her statements against there are see what what counsel is really talking about is the agency's boilerplate and we will admit the courts in particular the seventh circuit here and provide specific reasons and if planter's argument was correct and when every you saw that sentence you had to reverse a decision the district courts or courts court to belittle to review review decisions in general would be rendered meaningless because whenever a court saw that language no matter how well supported or how many reasons the courts would have to reverse it because of that sentence and it's very clear that that was not any courts or the seven circuits intention so the fact that that one sentence is in there that alone is not sufficient reason to reverse the  credibility determination which was supported with very specific findings and to address counsel's argument that is it would be ok if the if the l j said  can you're standing and walking is not supported because you can run a marathon i think we can all agree that a person doesn't have to be able to run a marathon in order to not be found disabled in this particular case the that was performing activities and had a volunteer work activity at least three days a week and while the why the o j did notice did note her activities in her volunteer work activity it was not to show what she could do on a sustained basis but to but to show during a time where she was alleging that she was her parents or her parents were so severe that she could not engage in any work activity she was still able to do this  respectfully and accuracy it was stated that the claimants one opportunity to discuss her problems sitting was at the hearing and she didn't do so and i would respectfully point out that that's  accurate i was at that hearing and page one eleven of the transcript indicates that the claimant testified that her legs were on fire and she not only needed to sit down but also lie down and in order to relieve her pain so it  based on order or the judge's rejection of doctrine was opinion was based on objective things it's also an accurate dr he says the doctor was opinion is based on object of things but he does concert for two reasons one it's inconsistent with a longitudinal record which is not specific he doesn't say what in that record is inconsistent and i saw her on a video here those are his two reasons for rejecting the lawyers opinion not all these other things doppler studies and that he mentions that in a separate part of his decision not tied to this the final argument and perhaps the most significant argument i'd like to make today is that the a l j himself on page eight of his decision in a is in a portion of the decision reached talking about her impairments in doing a recitation of the evidence but also discounting her symptoms and he says quote she reported swelling in her feet after standing an hour however the swelling decreased when she elevates her feet so to paraphrase he's saying i recognize her she has severe swelling of the feet but it's not that severe because she can put her feet up well it's disingenuous we argued to for the o j on one portion of decision to seemingly recognize that