good morning may it please the court my name is a town cast leon itch i'm representing christina chappelle in this appeal schapelle has been diagnosed with several severe mental impairment including bipolar disorder panic disorder anxiety depression and a personality disorder she has been receiving mental health treatment since at least two thousand and five including both medication and counseling also while this appeal is pending to pelle filed a new application and was found disabled since january first two thousand and eleven so we are only seeking relief for the time period through december thirty first two thousand and ten and the disability was what well the alleged  i i was not her attorney at her hearing and the alleged onset date in her application is may twelfth two thousand and eight and i cannot for the life of me quite understand why that date was chosen since the work she was performing for the previous several years was all far below can now focus on the main errors that require a reversal of ale g s decision first of all the l j rejected or failed to properly properly evaluated the clinical findings and opinions of every treating and examining psychologist psychiatrist and mental health therapist chappelle's treating psychiatry s and therapist describe many significant clinical findings most of which were not addressed by the l j they also provided many g affray tings most of which were between thirty eight and fifty while g f ratings do not by themselves explain a person's limitations these ratings viewed over time provide launch a treadmill confirmation of the severity of chappelle's mental illness itself cannot prove disability so there really considered sort of in conjunction with everything else it's the the significant i think evidence from the from a treating psychiatrists and therapists the most significant as you know from these cases where we're left with the somewhat extensive discussions here i believe  because there is this discussion then there's the discounting and then there's the substantial evidence question on our part so what do you think in your view where the major flaws when we read this record as a whole ok well first of all failing to address the significant clinical findings was a big flaw because of how and then led to the error in the evaluation of the other evidence because the l g rejected the examining psychologists opinions who stated that who will find that schapelle had marked functional limitations the saving they're inconsistent with the treatment notes but she didn't discuss the treatment notes that actually supported and were consistent with those opinions one of the things that struck me as interesting and i haven't seen that in very many other l g hearings is that we actually have the testimony of i believe it's dr sarah moore who was a psychologist that i guess social security had review all of these  psychology records and recommendations what if any weight may be a give when he has a testifying medical expert who has reviewed all of the records and the opinions that you're challenging it really depends on the consistency of that expert's testimony with the other evidence of record here her testimony was not consistent with the other opinion evidence and it also wasn't fully consistent with the treatment notes that detailed severe clinical findings but even more important even if you can you give us some specific examples because it strikes me that this may be an area where a fact finder would be assisted by an expert in the field who may be more conversant than the average jail jay with  psychological evaluation well first for the sake of argument let's just say that the a l j could give total weight to dr morris opinion and reject the opinions of everyone who actually met with and exam evaluated chapelle let me see if i can can explain to you where i'm going with my questioning it strikes me that this is a situation where the fact finder is relying on conflicting testimony by experts he's got the reports and the records from the claimants experts but he now has an expert witness that is testifying before him how is that any different from asking the fact finder to look at the conflicting opinions and decide make a credibility determination or decide to give more weight to dr more than to the written reports why can't a l j say well i just think dr moore is a more believable more reasonable interpretation of the evidence than my reading of these other  going to do that l j has to do state legit least legitimate reasons for rejecting the evidence that contradicts dr morris opinion but why can't he refer to her testimony as he does in his opinion and essentially credit that testimony as part and parcel of his reason for rejecting the opinions of the claimants because within that testimony dr moore did not provide legitimate reasons to fully reject well all the other opinions focused upon which the l c site several times is situational stress as being the trigger for these low gas corps that you're talking about and that seem to me to be a pretty reasonable explanation as opposed to and i'm no psychologist but a chronic  mental deficiency that might or might not be affected by situational factors well situational factors will affect how a person any person even a person without mental illness feels however here in there is it's well documented that she has a longstanding diagnosis bipolar disorder she's been taking medication i just wait for eight years it's hard to have to say that all of her problems and forget that she was scores because there's such a course but to say that all of her problems throughout the entire treatment record are simply reacting reactions to situational stressors is just not consistent with the evidence showing that she's been getting ongoing therapy and medication treatment for eight years now but i guess the question that occurs to me is if if i'll call them psychological episodes i don't know what else how else is crime if those episodes are triggered by situational stress and she otherwise does well under the therapy that she's receiving then why can't the l j say well this is not a disability that is likely to last for a year which is going to prevent her from working at all it's mean we all have situational stress incidents that you know make us less  occasionally her her stress intolerance would occasionally rise to mark levels and occasionally is defined by social security is up to one third of the time but the a l j didn't even include that part of d well that is this it's a real problem here because you can't say i'm i'm i'm using this evidence to reject all that other evidence and then not accept that evidence and not give any reason for not accepting it  error you have to look at whether or not the l j in her decision stated at least legitimate reasons for rejecting contradictory evidence the evidence is a point and as a country second worst opinion and evidence it supports chappelle's disability claims what gets me back to the question i asked you about this unusual situation where we actually have the testimony of a mental health professional after hearing  think that's significant and they say apparently relied pretty heavily on dr moore's valuation and i guess the question for me as the reviewing judge is  rely on that evidence and is that substantial evidence where there are conflicts in the opinions and he's crediting or giving more weight to one rather than the other means i mean that sort of the classic role of a fact finder when he's got conflicting expert opinion well as a general matter dr morris opinion is entitled to less weight than the opinions of the part of the psychologists who actually met with evaluating exam and i have a general matter however if the l j wants to give more weight to dr moore's opinion she can do that but she's got to provide legitimate reasons for rejecting the contradictory evidence it's going to the to the credibility of the claimant what about her drug use the inconsistency than her or her reports on drug use all of the other reasons are three reasons for rejecting chappelle's credibility the other two clearly were incorrect the only reason that is arguably correct is she did give some inconsistent stories about her her past use  of drugs but that alone isn't this isn't a convincing reason to fully reject everything that she testifies to certainly not in it so in so far as her testimony is consistent with result of the fact that she doesn't have a job yes she's she's desperately that throughout this record that was interesting he found her judge the judge the l g a found her not credible in part because she was desperately seeking work she really wanted to work but when she tried working the job didn't work out because she didn't compensate well i thought that was testimony that she left one job for a better job she left one job because she was so upset when one of the clients fallen and she didn't know what to do that she went back to a warehouse job which was her former work and she got fired from that job because she couldn't do it so that's that's sort of the chronology of the live i'm sorry i thought that warehouse job involved heavy lifting and that was the reason she left it wasn't just because of that but yes what about the l t also cited to the fact that when she enrolled in i guess it was junior college she got a four point zero during that particular school period she's got good morning that please the court and jeff staples for the commissioner who asks that you affirm the district court's judgment because the l g s decision is supported by substantial evidence and free of legal error judge hawkins i think you hit the nail on the head of what is the most salient fact running through these treatment records and it's the fact that mr pell is almost constantly and she's described as relentlessly seeking work it was reasonable for the algae to look at that fact which runs throughout the treatment records and conclude that a person who is so relentless in seeking work maybe believes that they could do work the other important fact about the treatment records that comes up time and again is that ms chappelle's depression was situational and it's largely based on her failure to find work not her failure to be able to do work but her failure to be able to secure a job she worked with vocational rehab throughout the period at issue and although she was and when she continued to be unable to find work she repeatedly told treatment providers that that was the cause of her problems and the cause of her depression that's the importance of listing twelve point well your honor the  e discussed listing twelve point zero four and consistent with dr morse testimony found that mr pelz impairments did not rise to the severity of that listing dr more actually say that dr moore did discuss the b criteria of twelve point zero four and said that it she had moderate limitations and did not meet the b criteria can you give me a record cite that i have i don't have a record save for the b criteria i can look it up if you'd like i do have a record cite but the l j also said that she had testified on the c criterion so that's not true dr moore did not mention the secret syria in particular however dr moore was asked whether mr pelz impairments met or equalled the criteria of any listing which would include necessarily twelve point zero four paragraph c which is a lifting and dr more testified that they did not so what kind of odd that that i understand that there is  little strange is still a lie is the algae relying on a very discrete paragraph when in fact there was no testimony on that well i mean i agree with you that dr moore did not mention the paragraph he criteria and the l j said that she had testified about the secret area so if we were to define herman that that opinion evidence that anyone else in the record said that she does meet the c criteria and although there is an effort by mr palin briefing to cobble together treatment notes to suggest that maybe she does meet it there's actually no specific evidence that she does but we know i guess this is something of a footnote to your opening argument that the records orts the elegy absolutely across the board with respect to c apparently doesn't at least not dr morton and my question following on my colleagues question is is there other evidence in the record that we could look to t change in their routine would cause them to completely the compensation here michelle was able to as judge common pointed out attend community college which requires more than a minimal change from her usual staying at home and she was able to achieve a four point zero over an entire semester on a full course load so that was one thing that supported the l j determination another thing that supported it is the and concluded that she retained the capacity for work within the ala j's r f c finding mr pelly even told dr schneider that she had been working in two thousand and eight and nothing had changed about her symptoms since then so given that testimony and his objective mental health testing dr schneider concluded that she could retain the capacity for work that represents substantial evidence in support of the al j's r f c finding and justifies the l g s reliance on some of the more specific testimony from dr moore and the state agency reviewing doctors with regard to the credibility assessment the inconsistent statements about substance use have multiple times been affirmed by this court as a clear and convincing reason to reject an individual's statements about their limitations moreover although the rule the same in social security proceedings as the jury instruction that we give in a trial that the finder of fact may accept some of the witnesses testimony or none of it or accept all of it but it alone makes the credibility determination and once that determination is made it decides whether to believe anything the witness that her testimony was in was believable to the extent it was consistent with the r f c finding but these inconsistency throughout her testimony eroded her credibility to the extent that the algae could not believe her allegations of total disability so what you're describing is what i would call a partial adverse credibility finding that the fact finder accepted some of the things she said but not everything that's correct your honor and the algae was justified in doing so based on the inconsistency is in mr pelz testimony additionally although mr powell said that she stopped working because of her condition in two thousand eight hundred testified that she left her job as a season it wasn't testimony but she told a true inviter she left her job as a bus driver to take another job furthermore mr pelz success in community college her work on a farm and her relentless job search all undermined knowledge of that your honor that was referenced in the twenty eight jail letter but i don't believe that if you don't know that's one i don't but it's not in the record and it's not in the record in this case and it's not my understanding that there's been any requests for sensex relief either so it's my understanding since it's now my understanding that that ms chapelle has requested that this court consider that evidence in deciding whether to send this case back it's my understanding that we're just looking at the record for this period for this period of time as it appears in the transcript because ale j made a reasonable interpretation of the evidence showing that consistently throughout the treatment record mr pelz impairments were related primarily to situational stressors and her inability to find work the l j was entitled to reject the medical opinions that were suggestive of total disability because that was a specific and legitimate finding within the l g s purview because it was based on a reasonable reading of the record of this court should find that the algaes decision was supported by substantial evidence and should affirm the district court's judgment unless there further questions thank you very much exercise judgment and make decisions and maintain appropriate behavior in a work setting no reason at all she's got to credit that opinion because she didn't give any reason for rejecting it and so it was an immanent the same excuse me the position as dr met dr malcolm x the ale jr rejected her opinion about stress tolerance based on dr morris testimony we've already discussed that why i think that was incorrect there's  in addition the l j gave only one reason for rejecting dr ira dale's opinion which was that it is quote not consistent with the treatment record that reasons not specific it's not legitimate and with both of those doctors both supported by substantial evidence it's simply a false statement by the  there's plenty of medical evidence in this file that would support a c a finding that she cannot handle stress and that's to sweat the c criteria is about so no there's no there's no competent finding on the secret  issue there was testimony by dr moore that the stress was situational as opposed to chronic and i'm still struggling with trying to understand your position in the expert says no because n a l j is required to provide her opinion a specific explanation of her of the basis of her decision and dr morris general answer of evidence that would support crediting what dr moore sat so i understand everybody wants to focus on just a couple of lines in these opinions but i guess i'm trying to understand what the law all requires  require more specifically with regard to this issue i take it your position is that yes it does and she's got to explain her analysis of the b and c criteria thank you thank you