we will be hearing arguments in september versus saul let me make sure that the attorneys are here mr gorton yes yes your honor ok you can see and hear the panel all right i can wait we have great technical people who are standing by and so far this is almost never happens and we've always recovered very very quickly but don't panic we've done it and seen it before with the gorton you've got ten minutes you arguing that the claimant should be found disabled at this point rather we are arguing that the administrative law judge erred in failing to find this a claimant had a severe condition which as a court know it was in the social security context doesn't have it's normal is not what we would normally think of severe but rather is simply a condition which in some way limits the person's ability to work and we just said i'm sorry for what we said that a step to the standard is basically this is the minimum the the minimum standard thank you your honor that that is the standard they call it severe by it it's actually defined as minimus in this case we have two medical opinions they're both the commissioners consultants one actually saw the claimant that would be the psychologist amanda slow act  she felt that the that a he had severe she had severe conditions but more importantly that the limitations were up to market which is a the highest standard you have the non the mild the moderate and then the market and so she had in some areas moderate but in some areas up to market which certainly when it goes back we would argue that the administrative law judge once a properly find that the conditions were records and the bottom line is that both of the defendants both of the commissioners own examiners found that she met the de minimus standard they know what severe means and social security whereas if a a non employee a non medical employee might not but they did and they've all said that she met him and they've all said that in a critical areas of trying to continue to work and we can argue and you argued in there that it's consistent that she would have that she would not be able to work consistently with the question being how much time she would not be able to work just even doing the her regular non work activity of watching her sister and her mother she couldn't do that every time she did that she would she would get worse and every time that she put it put it back she would get a little bit better so much so who are not yes it seems to me your suggest it seems to be the arabs they relied from the medical records and it's beyond the minimal standard that sense when you are right we're arguing two things one we're arguing that the ability to care for one sibling or you know one's parent in a you know a there's no there's nothing to show that you would do eight hours a day five days a week so number one and there are number of cases that say that daily activities such as that do not equate with work where you have to be with other people and you have to deal with other people but we also we also show and especially in our reply brief over and over again in the medical records and i can do it if you want but over and over in the medical records that this is a stressor and that she can't handle it and that every time she's given a break from doing it that she gets a little bit better and then what she has to do work activity that although it's not full time doesn't coincide with with work and that we're there would be a significant number of jobs she gets worse so we actually think that a record that the record shows that when she tries to do anything that even remotely comes close to work activity she gets worse and that i had a product and i have a question goes to the standard here and that compelling a sudden stansell evidence where there's no i have no there's no doctor supporting supporting it the position of the l t a when you're dealing with and examining non treating such as examining non treating life will law it's not clear what the standard would be overcome that izumi they would be lower than the standard required to do that and then they test for overcoming the treating physician but you know is that it's consistent with the only records of opinion which are the defendant's own opinion so you've got to read two opinions in there forgive me i'm trying to find a room where and i focus on the other part of it just thinking of the legal standard right you have what exactly exactly and and you had forgive me i may i may have to do it on response because i have it in my reply i looked at it this morning but then i spent the rest of my bipolar well when you're not in the depressive state when you're not in a manic state you are functioning the question is when you're not functioning and they both say moderate smart times that you're not functioning you either can't go in at all or various standards mild moderate marked and extreme that that mark to his character clearly severe moderate is also considered severe for the diminished review and step to why not  treated differently and it's free as there's there's there's actually four different standards because sometimes it's not not as certainly not you know it's certainly de minimus if dr slow aqueduct said not and sometimes they say no severe impairment because they know what severe means neither one did that in this case so you got none you got mild and then you got moderately marked and so moderate for certain and then dr selected least goes all the way up to mark which you know we're hoping that upon you know if this is sent back you know hopefully we get a treating source who now is able to do this but even if not you know that that the modern impairment would have off task the and fifteen percent and then you get the ve to say yes or moment terms or whether she can work and and the number of days missed or the i j a also relied on her misstatements that she felt pretty good on a lot of occasions she did and and what is that what exactly does that leave us st of all can you rely on the person who is mentally ill how libel is that testimony and secondly what do you make of that act if it is if it can be relied on well the st question is can you rely on it sometimes you absolutely can't because you know it's like that the person was paranoid everybody is really out to get them i mean they don't have an illness everybody is really out to get so you have to go with the psychiatrist who say no you're paranoid but but on top of that if you and we did this especially in the library the time she feels better is when she stops doing activity that might be an work every time to cheat you know she cuts back or stops doing analogous it is not work activity but at least for now ologist where she is she gets a little bit better and then she gets a little bit worse when she has to do it that was  having those panic attacks she can't which is not you know dental records show she's good but when she is she's i mean there's twenty three days a month there is no vocational expert in the world that will say anything over two days a month and that doesn't even take into account the of thank your honour's may please the court i represent the commercial commissioner's social security your honour's this case tests the simple principle whether the may find an impairment non severe when the vast majority of the evidence so indicates under the deferential standard of review the court should affirm the commissioner's decision st misshapen berg failed to demonstrate that her mental or mental impairments were severe while the commissioner recognizes that courts have found the burden and step two is low the burden still exists and here a reasonable reading of that evidence is that her money mental impairments do not cause significant limitations in her mental ability very gentle that's a very general way of looking at it but it seems to me that this is much more gordon as well to me about what exactly is the standard for in effect overruling a non treating physician and your your standard of review is governed by that same substantial evidence opinions they don't always like it but you're saying that this is like lay testimony that no your honor of course not and and certainly had the had the had this been a case where let's let's say we're talking about musculoskeletal impairment right and the medical the can be consulting doctor takes a look at the m r i and sees what that finding says and says you know based on my experience someone who with this level with these exact findings were going to say can you know can't walk more than four hours per day here by contrast we have to we have to non treating physician opinions and the l j by regulation has to consider the whole record and there are not required by the regulations to interpret  away all of the evidence together so when the not talking at this stage whether she can work or not we're talking about what the impairment is does the impairment meet the diminished level of being a a severe impairment for purposes of step two only you know i think it's entirely possible that if you were to remand and set forth the appropriate standards wherever they may be  that ultimately when she gets a step i don't know if this is listed impairment or not but if it isn't then there could easily easily be a finding perhaps that if there is work out there for that she could do i just don't know consider all the entire record in making those determinations and in doing so he has access not just to those two opinions but to the dozens and dozens of treatment of that say no depression and i would argue your honor that the ale jay did not the o j notes he he he disagreed with the experts also had those records right experts had those records right the the experts in this case depression no depression anxiety better with treatment her her medication is working well her medication reduces the sentence then the l j gets to gets to talk to the claima treating physicians opinion munroe in particular i call your attention about one where the evidence is in the record demonstrates the whole record including that testimony the l j is permitted to overcome even a treating says at most mild symptoms and she's generally functioning pretty well she and having begun at the level of mild symptoms he consistently finds improvement over time  impairment you're going to use the word disabled which i would i just one last point your honor the consideration of mental illness under the under the regulations is is complicated and so the regulation provide for the special technique as an additional procedure to ensure that the assessment of severity of step two is supported the l j did so here going through the so called paragraph b criteria understanding remembering implying information interacting with others concentrating persisting maintaining pace all of which he found mild and adapting in managing oneself  page thirty two of the record that the regulations provide for this this extra step precisely because mental impairments are are complicated and the o j did so here and those findings are do every bit as much deference as any other factual fine thank you just so i'm pleased that i think so your argument with respect to dr slow is that doctors lawyers didn't i think you said didn't have a benefit or that her assessment that michelle was so limited the treatment records far and away document otherwise good cognitive an intellectual functioning by her training sources over and over and over again and the o j is record is another relevant factor in artfully stated or it was straight from i'm trying to stand sort of what what is your explanation for that statement i can't say that i understand that exact sentence either your honor but having found that this was a medical read from the nd circuit although it was a summary order but that was the that in that case we only had a non exam or here we have two we have the examiner in the non examiner we don't know what the examiner what records they had or did we just do not know that we know they're not examiner had a record to know that the examiners actually saw her in this case who had only one and that's the non examiner was a doctor hargraves and act an examiner forgive me only examine getting's once examiners and as they and and then then it goes on to say and i read it as we've indicated that when a medical opinion stands on contradict it and that that's the that's the key on a medical opinion stands on contradict that circumstantial critique by non physicians in this case the administrative law judge however thorough or responsible in this case would we say was not must be overwhelmingly compelling in order to overcome it and dr hargraves opinion was the only one referenced and in this case we double it we have both the examiner who had whatever records they had and the non examiner did both with their expert psychiatric training otherwise that commissioner would not want time show that she was doing on time at that was his argument right so and certainly and certainly we have set forth in our brief you know it's it's it's like what the court had said with respect to the testimony you know she said i'm doing well but then she she clarified that by doing well she means that she only has haneke attacks now two dollars to three dollars times a month that last for a couple days and w it is up and down because part of it is if she's doing some work activity that's analogy just although it's not equal to work she gets worse and then again with with all the conditions all psychiatric conditions but especially something like bipolar that's exactly what it is good days bad days good periods of time during a day bad periods of time does she go to see the doctor on a day when her symptoms when her condition is not concern i mean so are you asking for a rule that basically says that as long as there is a doctor that says somebody is severely or moderately affected that there's nothing one but we have two and even with two as the court set forth in getting if there is overwhelmingly compelling evidence a non physician such as in a o j can overcome it but the problem is if we don't  come close in this case because she has periods of time where she is very limited in her activities and it coincides especially with when she is doing some work that is not work in the sense of a step five decision and so security but is at least analogous those that's when she gets worse and at best it's it's only part of the time that she's doing well and yes there are times she goes to doctor that she is doing well but then there are times where it's much worse and again i you know we set it forth so many periods of times where she's anxious not being able to concentrate throughout the entire record so there is not the standard met but don't we don't ask for for you know if there is one opinion that says that that that a person is something that that has to be accepted but in this case there is not sufficient evidence to allow a lay person to overcome  two i'm sorry they are very basically said that the treatment records established that they claimants counseling services from november two thousand and fourteen to july of two thousand and seventeen were overwhelmingly benign and that her psychiatric symptoms improved a mild a minimal to nonexistent you're disagreeing with that characterization are you saying that that's not an accurate characterization of the treatment there right  well it forgive me then there are a couple things at at our worst at our worst worst were forced worst the a l j would still have to even if they find in two thousand and seventeen which seven panic attacks etc that that she doesn't mean that then you still have any period and that there's a period of one year or more she's entitled to those benefits so i think it has to start with the a l j going back finding the de minimus condition that does exist and then going through it in a way that this moderate or more and the treatment records don't support a contrary that's who are good argument is that it's the opposite of what the commissioners council said in general in general that the administrative law judge we defer to the administrative law judge but i'm deferring to the administrative law judge the administrative law judge has to do it for to the un contradicted opinions so it's almost flipped on its head in making the determination we defer to the a l j but in minutes terminations the l j as a lay person has to deal for her unless it's overwhelmingly compelling so we're not saying that in the elbe an opinion or if there was one opinion one way or one opinion the other way the treatment notes could have supported the administrative law judge picking one or the other what we're saying is that the a l j when we illness or a one time snapshot may not be indicative of longitudinal mental health so doesn't that i'm diminished the weight of doctors loic i don't think so judge and  treating physicians opinion or sees a claim that on an ongoing regular basis that they defer to the treating opinion we have records we don't have a treating opinion so that's where getting says and getting even acknowledges we recognize of  an examiner that it has to be overwhelmingly compelling and again in this case we have we have troops so it's it's a matter of you have to consistent opinions are the only opinions in order to overcome that  it's not a matter of can you look at the records and come to one conclusion it's can you look at the records and and only come to one conclusion such that no one should possibly agree with the examiner and the non examiner we've gone way over can i just ask you to respond quickly to something to do with said about dr slow if statements about your client having intellectual functioning below average and markedly impaired attention and concentration seem to be at odds with some of the treatment providers yeah i i forgive me i must let me see if i can i did not examine that one particular part because she also  she she saw a thought process that was disorganized the examination revealed a thought process that was disorganized so that has nothing to do with intellect it was difficult to follow the claimant in conversation as she would respond to a question for a moment and then just completely go off task and it was attention concentration were markedly impaired due to the claimant's distract so and she also puts a limited intellect or functioning we don't know whether you know how much limited but it's markedly impaired due to the de claimants distractibility and she also indicates modern german scene doing simple tasks and we don't really didn't even raise that because as the court says there's not a lot one way or the other on intellect but the but she certainly observed the disorganized thought process she observed that you would ask the claimant one thing you know you know what color is the sky and she responded like you're sure she know if she wouldn't respond appropriately and then she would completely go off on a  tangent and chief specifically says markedly impaired due to the inability to concentrate due to the distractibility so even if you take out the limited education you know you can argue you can make a lot of arguments ok then it's only moderate push still have moderate and maybe she really meant the mark it was because that's what she observed she observed the inability to even you know have a conversation that made sense