honor that the decision of the administrative law judge contains era is not now in dispute i point out that in the briefing the commissioner has conceded a number of things the commissioner concedes that the a l j was wrong when he found rightly not credible when they on jay interpreted a record that says reich was mother in law has perry create dick c a b a l j interpreted that as meaning the claimant travel to california when she did no travel what it says is that her mother in law has pancreatic cancer the commissioner in that concession is in the commission is brief a page twenty nine in commissioner also agrees that the l j erred when he found rightly was not credible based on her being uncooperative as rightly attended consultative examinations and provided requested documentation that concession is at page eighteen and that's a footnote number six the commissioner agrees derail j found likely is activities to replicate those necessary for work but that right police activities while the commissioner issued to affirm the a l j decision as noted in brown v hunter credibility findings are usually not harmless and here we have three that are conceded what's important to note is that the l j evaluated credibility based on incorrect standards the a l j well that objective data must establish the extent of  incorrect the objective data must establish the existence of the impairments once those impairments or established symptoms must be credited if they reasonably related to the medically determinable impairment which in and in this case it's conceded they are and there are no clear and convincing reasons for disbelieving measures rightly so help me with the the pressure points to the number of pressure points i took a look at the revels case that you alert us to and right so the eleven of eighteen or whatever that standard is is that just to figure out whether you in fact have fiber mileage and you're saying that it's a whole nother question as to how severe that impairment is the short answer to that question is yes your honor but i'd like to elaborate on it in  criteria for fibromyalgia there are two distinct sets of criteria one is the one nine hundred ninety criteria which does say that you need eleven of eighteen positive ten to point once those positive tend then we have to go on to evaluating the extent of those limitations but it's not based upon whether there's decreased range of motion loss of strength those aren't expected with fibromyalgia now there's also a twenty ten c r criteria in that criteria there is no requirement of any tender points at all they go through a different set they talk about the chronic pain they talk about malays they talk about fibro fog  fibromyalgia what's interesting though this is just an aside the l g a rejected the opinion of the treating providers who found eighteen of eighteen fibromyalgia tender points for one of the reasons that they didn't write how much pressure they put on that tend to point i don't i never see or record that says that i don't think it's required it's not even the standard but the l j turned it around and said well the consultative examiner found the are only seven how much pressure did he put the unknown it's not stated and here there was there was really a double standard the administrative law judge rejected the opinion of dr beach who  is at a minimum a supervising physician seemed like he didn't have very much contact personal contact with your client correct joe at a minimum he's a supervising physician and so the judge says well because she won't be supervised the claimant we're going to reject your opinion and yet he gives greatest weight to a doctor that never saw or never supervised her nothing the judge he says he's going to reject the opinion a doctor beach because he's not a  rheumatologist and the l g gives greatest weight to the pinion of a pediatrician so you can see throughout this decision there's just this double standard that went through they sent my client really get to pick it apart in that way i'm sorry i'm not sure i understand that our role here to second guess the l j waving of the medical opinions you're not here to  there's differing medical opinion i then we look at what's the standard ok if everybody agrees the clinical signs are the same and here i guess is a question whether dr jones agrees because he found seven tender points instead of eleven or eighteen we have to look at twenty c f r section four four point one five to seven see factors and if you look at it they talk about the how much have they seen the claimant what was their involvement in the treatment what's their familiarity with the wanted to in order to act if what the l j is to consider in making his or her ruling and then we'll look at that to see whether or not the substantial evidence in the rec supports what the l g s done if it can go either way then there is substantial evidence in the record so i don't find it particularly helpful to try to pit the doctor s relative credentials against each other and how they went about doing their job if there's you know like i think there's evidence ballplayers don't you lose no one there's not evidence both ways the judge said i am rejecting the treating physician opinion because he's not a rheumatologist and then the judge said i am accepting the opinion of a non treating non examining physician who never see saw the client without commenting on he's a pediatrician and so you know it's not second guessing it's looking at these twenty c f r sector factors that are listed in the statute and we have to apply the correct standard if there is no dispute on clinical signs and medical findings then to reject treating source opinion they have to say clear and convincing reasons if there is a conflict they still have to state specific and legitimate reasons early rejection are two different things your honor if i look and compare with the judges assessment of research on functional capacity and i compare it to the opinion a doc to be nothing to say nothing dr beach found great of limitations in sitting standing walking lifting carrying dr beach found great a limitations in whether this position changes or the needed the ability to sustain an eight hour workplace where the pain would cause the claimant to be off task at all other doctors didn't even comment on that but if you're just going to look at the administrative law judges research on functional capacity they're totally different there's nothing that's the same when you compare those two opinions and i don't want to miss out on talking about the opinion of the physician assistant we have on almost one hundred treatment records one year total physician assistant records infectious disease  high ordered labs for sure we see his name on that we know that he supervised the care that's not disputed whether he actually came in and did a physical examination based on the records we have i can answer that question i just don't know well ok ed no i think i have a good time but i have a question that you just brought up and generally about the physician assistant i understand now that you walk in you don't get to see the head man but but the people who are less than medical doctors are so certainly not the same as a medical doctor they're qualified to do what they do and they can do that but that's not on the same par with the it's apples and oranges comparison and i don't know quite what to do with the qualifications so how do we treat the physical assistant and weighing it against the opinion of a medical doctor that's a great question you're on and that is answered in the case popa po pe i think it is which is cited in my reply brief it was actually decided after the opening brief was filed and i believe after the response a brief was filed but they talk about the status of health care now house also security recognizes that a lot of treatments provided by fish and assistance and that those opinions are entitled to wait it also notes that there's been a change in the regulations where they are now treated as acceptable medical sources pretty much on par with treating doctors because on a par with a medical doctor and they have been treated in the same under the new regulations which do only apply to claims filed after a certain date my client's claim was filed before that day but it just goes to show you that they had a policy will when that says look we recognize a lot of treatments going to be provided by p a's we're going to give those opinions wait we can't penalize the claimant because the health care in the regulation they talk about not crediting or considering physician the system opinion similar to that of treating providers is antiquated warning may it please the court jeff staples on behalf of the commissioner i think judge rawlinson is asking the right question here and that's when the facts and go either way what do you do i'm not going to get up here and tell you that the algaes interpretation is the only reasonable interpretation of the record a different fact finder could reasonably have come to a different conclusion but under substantial evidence review what this court does in that kind of case  of the evidence this is a case about mostly fibromyalgia and generally impairments that are largely not quantifiable based on objective medical evidence and i thank my colleagues for pointing the court to the rebels case because i feel that it's instructive here in the rebels case the court said that people that are treating a person with fibromyalgia don't ordinarily see any objective signs of that impairment it's based almost entirely on the claimant's subjective reports but the difference between this case and rebels is that unravels this court found that the claimant was credible and so the medical opinions that were based on those credit those credible statements were themselves credible here by contrast pale gate ale jay gave several good reasons i think but each of the reasons they gave it seems to me were themselves flawed so maybe you can tick through those the one you just point to that you started with from rebels is the number one reason you gave which is there's no objective medical evidence to support her claim that she's suffering in this way and we know that for fibromyalgia you're not we can expect there to be the kind of hard medical evidence and that the rebels kay says that so that's that's one reason just wrong right there and if you go through each of the other ones which i'm hoping you'll do to tell me i'm missing something well i think it's like the algae just missed the boat on each of them i think they'll try it as my colleague pointed out the algae generally said that a lack of objective evidence does not work in the climates favor but then the algae went through and specifically said it's not just a lack of objective findings there's also a lack of treatment for the impairments that she claims are disabling how so she goes to the doctor i don't i can't remember how many times we have records for but there's a long course of treatment what the  jay fault her for was not seeking more aggressive treatment and she explained why she had not tie think what was it to go see that that specialist there was an explanation for why she wasn't able to in that care well in revel's this untreatable the ael j i can look at that and say well fibromyalgia is not untreatable and she's receiving treatment that i'm that is the combination this it was the combination of her ailments that caused the person to tell her that we're not going to be able to help and she i mean i think but i think she was saying that she still wanted to go see a specialist it wasn't like she was rejecting that as a as a course of treatment i can't remember if there was some issue with her insurance or what it was about i think even as of the time of the hearing wasn't she saying that she was still trying to get into she said that the doctor never called her back and so i think they'll jay's intitled to look at a person who is complaining of disabling fibromyalgia and other impairments and say that just that doesn't release ring true to me that you wouldn't go to the one specialist you wouldn't follow up with the specialist who is in a best in the best position to treat your impairment after your the people who are currently giving you treatment have told you to go to that doctor that combined with the lupus which she said at the hearing was her most disabling impairment but the record shows that that wasn't really being treated at all  five five sixty six and four nineteen it shows that she just wasn't that doctors weren't really doing anything about that the same thing how about how about her daily activities again fall to her for basically doing too much for him to believe that she was suffering in the way that she said well she said that she was lying down every day and for many days it was many hours during the day never the last she was able to work after her alleged onset for weeks or months at a time yeah but was unable to continue because precisely because of the her condition yes your honor but she said she was laying down for hours every day but then for a period periods of weeks or periods of months she was able to work so if you say you have to lie down for hours every single day but then you can work for months at a time there's something that is not coming together on those two  facts so the l j was able to look at those things and say this just isn't lining up for me and as i said before and as judge rawlinson was asking about earlier maybe a different fact finder could have could have reconciled those two things but on this record i can say that i don't the reason tried to work and wasn't able to support her case it doesn't undermine it it shows that this is not somebody who's wants to be lazy and lay around and collect a check she wants to work she was in an economically desperate situation that's what compelled her despite her your basic inability to do that to go out and try to find some work that she could do and she failed at that because of her condition it's not because of a lack of desire and i don't know how you or the able jane would look at that and say somehow that we're going to turn that against a claim that just seems to me completely backwards well it's just taking what she's alleging which is i can't go a single day without laying down for many days it's hours at a time and then for a period of several weeks or several months then i do go out and i i work at a regular schedule job and they did not hold the fact that she was trying to work you know the elderly didn't find that that was disqualifying substantial gainful activity or anything like that but i just can't say that it's unreasonable to look at those and find a conflict there when she says she just permissible reason when it's accompanied by others and the ale j said that that this is not the whole basis i didn't just come in look at her and say oh you're outta here you know that's one factor among many that the l g is permitted although this court has expressed general disfavor with the practice this court has never said that that's an absolutely incremental reason and so you know i think that's part of why this is a substantial evidence review because the person who's sitting there across from the claimant needs to be afforded some deference in saying i look that this person in the eye and us here on a cold record with you know hearing transcript can't really get that same sense so that's i think why analogy is generally permitted to do that question the legitimacy of the other reasons that are given also respectfully i would point the court to the carmichael case which says that that is not how harmful or works harmful air works such that if there are really no more substantial reasons supported by substantial evidence remaining then the presence of erroneous reasons becomes harmful but here these were a few isolated findings th made that the commissioner concedes were erroneous but they did not taint the entire credibility finding because the l g went on to describe as i've discussed the limited treatment the normal object of findings her denial of pain in many points and her work activity all of which were inconsistent with her allegations so those few limited errors do not undermine the substantial evidence of the rest of the algaes reasons and so don't negate the credibility finding and don't rise to the level of harmful error in this case i'd like to make one other point about be about pope that was a nurse practitioner and in any event the standard is still lower as pope can concluded when you're talking about as judge wallace was pointing out when you're talking about a non acceptable medical stores this court  requires much less stringent reasons from the l j when the l g is going to discount an opinion from a not acceptable medical source so if there are no further questions we ask the court to affirm the district's judgment thank you c don't believe that that's accurate they're also focusing in on my client's statement that she was she believes she was told that fibromyalgia was untreatable well she reported to her doctor after she saw the woman tolerate yes and that contemporaneous record from her doctor says the rheumatologist told her her case was too complicated and he wasn't comfortable treating it she did everything she was supposed to do now what's interesting is fibromyalgia is not curable and she says it's not treatable i mean you're talking about a patient who's dealt with pain for years and years who seen the doctor over a hundred times who hasn't had any relief and we can't just be that particular on every single word an individual uses what she says is rational what she says is reasonable and there is no was not treatable there's a record from the primary care physician that says she saw a rheumatologist that was based on her reporting of what happened i'm asking is there any medical evidence in the record in a report from the doctor himself ourself that said this condition is not treatable i don't believe that there is i'm not one hundred percent sure but i don't believe that there is  but again we have a temper a near contemporaneous record that was reported to a treating provider i mean you can't just assume all patients the lying to the doctors all the time but i record to say that you know if the doctor relies on self reporting that's not consistent with the other medical evidence it can be discounted we don't have to accept the word of the claimant either we don't feel but that your honor there is nothing inconsistent between her reporting the diagnosis and the treatment the only thing that's different is they had their doctor look and say she can work and they sent it to a doctor who looked at her without reviewing any records believe the doctor said it's not treatable i believe the doctor said that we can treat it with medications but we cannot cure your disease you're going to have pain but i thought she said that the doctor said it was not treatable your honor if i go to a doctor in the dark is that what she's saying yes or no i believe she used the word treatable in her testimony but she did not use the word treatable when she reported it to her primary care physician the report to the primary care physician was contemporaneous and we're talking about what she said at a hearing when the judge says what the rheumatologist tell you and she says it was in treatable when the record shows that it was incurable and the doctor was uncomfortable treating her because she had lupus she had positive epstein barr virus she had mercer infection she had recurrent infections with there that they are that she's been prescribed all the appropriate treatment for the impairment if she had gone to the woman colleges the treatment would have been the same what is the point thank you counsel thank you to both counts the case to argue is that really for decision the