regulations for weighing the opinion of a treating physician and the law of the circuit that the law of the circuit has been was established conclusively back in the burgess decision eleven years ago  reestablished or reaffirmed in the stroller decision some months ago and yet the commission and its in the commission's own regulations that if the opinion of a treating physician is not given conclusive weight then there are four factors which the social security administration including the able to say must weigh and must do so explicitly in this particular case the administrative law judge only mentioned one factor and that was a factor that weighed in favor of the treating physician that is longevity of treatment and despite writing a decision which ran to twenty pages of single spaced type ignored the other three factors social security this court star has said repeatedly that if the these are the purchase factors specifically frequency length and nature and extent of treatment which the a l j did consider and said well that weighs in favor of the treating psychologist who has treated mr stacey for years and for more than one hundred dollars visits and has written about those the amount of medical evidence supporting the opinion didn't mention it at all the consistency of the opinion with the medical evidence didn't mention that at all and whether the treat there is a specialist didn't mention that at all in your alluding to the word explicit this year the l g a must mention those factors because the reviewing court should not have to comb through a decision that this long and guess whether they   which of course we suggest that the a l j should have done in this case but history does use the words explicitly apply explicitly apply because the reviewing court should not have to guess whether or not the a l j applied the factors but forgot to mention it in his decision or whether they are simply forgot to apply the factors what reasons occurrence in providing psychological treatment to a patient and in fact the other two doctors who who did not examined mr stacy also did not conduct mental status examinations and so therefore that that particular factor does not weigh in favor of the treating psychologist although it was an explicit reason that the  problems with concentration would render him off task more than fifteen percent of the work day the case as well that couldn't be because he watches television and he plays video game he did mention relationship with family as being an indication would you could have a relationship with others out would you say or do that said that he mr stacey does not have relationships with family members his marriage was in terrible shape his wife left him saying that even if that is relevant that is the recor who suffer from depression in difficulty in concentration is a known sign of depression that goes along with depression so that's what i'm asking is in this record whether or not the concentrate the lack of concentration was caused by a d h d or the lack of concentration was caused by depression and perhaps they don't know he was prescribed adderall he was prescribed  well i the way we assess it is that this is really a medical decision that the even the non examining psychologist said yes mr stacey has difficulty concentrating they refer to it as moderate they said that their episodic exacerbations of his difficulty with constantly but everybody agrees that he has difficulty concentrating despite this prescription  your well your honor the the remedy is we understand discretionary under section four of five g of the social security act we would ask that the court exercise its discretion to reverse and award benefits because the commissioner did not sustain his burden which was his burden at step five of the sequential evaluation but we also understand that it's this is a discretionary issue and the court has discretion either award benefits or remand for further administrative proceedings thank you that mr byass opinion was based largely on stacey's self reports which is essentially the opposite of saying that it is well supported by medically an optimal clinical and laboratory diagnostic te child which is where all the mental health listings are and it discusses the kind of evidence that we want in mental health cases it specifically talks not only about symptoms but also about signs observable things and even as m things in response to that st sorry st the doctors that she saw actually missed devices colleagues who saw her doctors patel and o'neill they did perform mental status examinations and their findings were sensually normal to this court has said that we can credit state agency dr opinions over treating physicians opinion through said that over and over again and in and of course we can but we have said in a stroller believe that we are vague seeing him only ones that is who we use and here i haven't seen him i know this is true but as i said there's a history in the circuit and i get to actually there's three lines of case law i think that you might find helpful here there's the of course the broader line of case law indicating that you can free to credit the state interest a doctor but there are three specific scenarios that apply here that this court has said it was ok to credit the state agency never having seen the person over the treating physician st whereas here the treating physician submitted just a checkbox form without narrative explanations nd where as here the treating physician spoke to an area that she didn't treat the person for so for the off task in the absentee limitations she's talking not only about his mental but his physical condition for which she didn't treat her and when usage forms mean that means that the lawyer created it and there's not actually in addition to answering the question they didn't provide any support to explain the limitation in the record  missing something he said that characterized as he is having extreme difficulties i'm quoting interacting appropriately with coworkers and members of the public bale jason is no this is contradicted by the fact that stacy maintains the relationship with his via his wife communicates with other members by telephone but as your adversary says the record seems to suggest that stacy doesn't get along with his father with his brother with other family members with whom we had only in frequent contact how do you respond to that then i have some others i'd like to order and there is evidence  thought he reunited with you know a friend or i'm sorry a family member of an ex girlfriend who is helping out that made him feel good there's some people he gets along with records of this record he was even able to get along with some people he had during this time before he reckons out of his wife he had a girlfriend never reported any problems with this girlfriend at all and what does that say about capacity to work into somebody gets along with some people that what i would say is that yes he clearly had specific people with whom he had a problem his wife and his father obviously we are most of us i think know of relationships like that are a little bit troubled let me tell you what ultimately bothers me about this case i have reading this record it looks to me as if we may solve this person and decided then i'm kind him in conducting mental status examinations similarly noted that he was ok we do send via email j is not one but his providers dead and they can and that's true the mental status findings from his to mental health providers and the mental status examinations from all his physical health providers who also do sort of a shorter mental status examination as we are going through visits to the normal hours of concentration  from that is a function of the fact that work days typically have a lunch break unskilled work to plan a lunch break into fifteen so that would be what would be required to get chew over the st fifteen and then to the to the based on their expertise as doctors and based on her view of the record sort of that's sort of the sort of he can at least do that and that would be what would be necessary to do work so it's sort of saying yes he would meet that requirement which is what is required in unskilled work and we conclude there's nothing that you're signing to you're just saying they say it's two hours and based on their expertise what is it in his history that suggests that he can concentrate for two hours at a time the fact that there are no mental status findings showing a lack of concentration and it is his burden to prove it still patella from o'neil from every time he's gone to the doctor and they've done mental status examinations no concentration deficits are noted and watching television and included were ok in the context of a more general analysis and here we have not only those items but also the lack of mental status examination so it is a factor that's us to send it back and not order and that's what we normally do i'm just curious what we would send it back for what it is it only unveiled last case i can understand what we inserted back for but stroller allows for th these well you missed it so there you go it's going back kind of situation this court can look this court can look at the fact that no mental status examinations finding support this they can look at more recent  usually normal a few exceptions no exceptions with respect to concentration i do have a concern and i want to raise with you as a drug abuse question as i understand it you are saying that if we were to put the rule against you that you would want us to remain and so that the agency can consider whether a mr stacey's impairments were either caused by  exacerbated by by drug abuse my concern is this the the l j as least as i understand it and point b otherwise made no such finding  that's why they did not do it in this case that doesn't mean that there wasn't evidence for it as outlined in my brief there is evidence including his doctor's direct statements that he's misusing medication two hundred and forty  tip it's abuse and so there is evidence there that would warrant considering considering that in terms of like the agencies and mischel look that was done at the at the state agency level by a disability exam or that was not a final decision of the commissioner of social security and the l g did not make a finding on d n a because they did not need to in order to close this case  cannot substitute that type of analysis for what the l j did so what what we have here the the evidence the that the l j was considering was from the treating psychologist who did not merely write a check off boxes on the form but she wrote a three page narrative report which is can be found in pages eighty three dollars to eighty five dollars of the record and the opinions of two not examining physicians all of those doctors found that mr stacey suffers from a mental impairment which interferes with his ability to concentrate so the issue is not whether or not he has concentration problems it is agreed that he does the issue is the extent of the concentration problems and that is where the treating psychologist and the non examining psychologists differ now the the treating psychologist did not base her conclusion about his can concentration problems merely on mr stacy saying well i have difficulty concentrating she could see in more than one hundred visits she observed him as a trained mental health professional and had the opportunity to note exactly how he responded or didn't it is can be considered it was submitted to the appeals council it is part of the administrative record and it can be considered did she say anything in the course of the years of treatment that said fifteen percent of information should not be used as evidence of no information that was in the rose a decision because she was trying to treat his depression concentration is course a sign of depression but she was working with him on treating his depression that's what she was focusing on i think the court can recognize that if she could help him alleviate his depression then his concentration problems would also be alleviated she wasn't focusing primarily on dealing with concentration problems she was focusing primarily on his greater mental health and that was the issue of depression  the issue of mister stacy's difficulty in interacting with other people that counsel mentioned i think the focus needs to be how does he get along at work and mr stacy actually into an argument with his supervisor and the other job he lasted even less than that i believe one or two days again he got it into an argument with somebody he doesn't get along with coworkers it's one of his mental health problems to say oh he gets along with people is simply to ignore what's in the record and thank you thank you thank you both for your arguments the court will reserve decision