adopted is the residual functional capacity and whether adequately encapsulated mr pellew skis dental and hermits and you're including prominently among these mental impairments whose intermittent explosive disorder or whatever should be calling this that's correct and is a mr blues fiddlers kizza times been diagnosed as having anger issues explos duncan and it's not the end of the world if the answer is no but it was there ever any effort on anyone's part to track down some of these thirty jobs that he walked off of or did we do everybody just take his word for the fact that he had a very poor record of keeping a job in retrospect your your honor that would be something that should have been done and probably not i do know from trying to obtain medical or  employment records a lot of times they're very vague as to what took place because of the potential liability issues so it'll just say ended work so sometimes it's not worth the effort of doing it but you can see just by reviewing his work history under the d section of the file that he had a i think i counted fifteen jobs in fifteen years and those are just the that we're reporting to the i r s so and there's no content that the d part is accurate you know no one said this is not right well it is the i r s i would hope they're accurate he says in the st assessment which is the september eleven hour evaluation and forty to fifty minutes al at and then in november nature frequency and left length of contact he says monthly for thirty minutes and as necessary for behavior which he assumed was unmedicated is now in existence and i specifically asking about saying that his contact with simply basically an evaluation and a follow up and then switching to monthly for thirty minutes that i'm asking about that i understand your explanation for why the opinion changed but i'm asking about the explanation for the dramatic difference in his reporting the frequency of i think he assessed that this person needed more help than what he had previously been joe sorry let me just rephrase because it does if you look at the mind one of these two different forms of september form and the november form they don't really say the same thing now if the answer is that after whatever the date is september nd he puts him on a monthly schedule for thirty minute appointments he has had very many of these but that's what he's doing now maybe that reconciles these things that he seems to be backward looking because he says as necessary for crises print the seas frequent well i understand your honor i can't and i would be speculating on my part to try to figure out exactly what he was saying by this other than this is about the time that he started seeing dr weil on a regular basis and then eventually shifted over to the u w problem counsel i mean a big part of the station here was driven by discounting dr whelan's opinion which was which was really good at the end for your client and it seems to me that there really are and this date thing you know substantiated to i mean these really are dramatically different assessments they are and the only thing i can point out is that and and i'm not faulting the l j or the decision writer who assisted in this or whatever it took three or four members in my office to decipher their handwritten notes of dr weil and during that period of time that i've cited my belief where he made specific findings we had different people review them trying to figure out exactly what it was basic penmanship apparently is not taught in psychiatric education but anyway i have a similar concern though and here's the concern that i take away from it is you have you have these evidence if you will pick that addresses you know the r f c aspect of this in particular and what i'm thinking of you know there are the dr banish is it donna hall or donahue  donahue donahue will philips you know and others so that the l j seems to have you know resorted to that other evidence which is pretty extensive and one of the difficulties that that i have with that with your argument is it seems like in the face of you know that which i just described happened you're just asking us to kind of go back in and reweigh it a different way no your honor and this is why because st of lingering he has his girlfriend leave the room whatever and different stuff and then ultimately changes his opinion then you have the u w doctors who review him afterwards who find the medical records in this case is kind of like a russian nesting doll hey you have to look you have the outer side and as they keep opening it they find more and more and more until they finally say this guy has some significant another person in the store because of a conflict the reports of him walking off the job twenty and him having dreams about slashing people these are all factors that came out only through the progression of the treatment that he had at the state agency doctors never reviewed anything in two thousand and sixteen or seventeen pertaining to this record that being said the  j still didn't even apply the findings of the state agency doctors because the eight or the criteria in section one of the mental r f c form they marked things like is work pace was were not adequately addressed because quite frankly the fact that he's having these angle outbursts is disruptive to himself and to the workforce and would be the equivalent of an unscheduled break which the vocational expert said would not be tolerated so all of these factors come in here so even if you look just at the findings that the judge did me regarding the state agency doctor the commissioner of social security this appeal is significant in that they issued an exceptionally there are zero evidence based decision he considered i hope that's not a that professionals initial assessment of somebody based of course only on whatever you can gather initially couldn't change a couple of months later upon greater exposure to the person and a greater opportunity to evaluate that person it seems to me that's what happened you know mr goes to see him november if you look at every single treatment note after and i believe they are there are five they all reflect normal findings none of those treatment records have any sixteen treatment notes seen really at odds with november so i thought that the kind of hypothesis that judge would set out there i thought that that was right that dr wayne went through a greater exposure to this individual recognized over time that he's got really serious issues but then dr whalen seems to pull it back the very next month in december which is in january and in february and march where dr whalen says by the way doing great and all of those treatment notes that i just identified he said good grooming co operative good calculation good memory insight judgment tells not what i asked somebody they've regularly and still have a problem with explosive triggers is what makes me think of  explosive behavior these are the others coworkers people that you encounter i'm not sure i see the link i can speculate on that because in these treatment notes there's other findings in addition to just bathing wri all of the that was just you just read off doesn't say to me anything about whether he could you know somebody challenges his way of going about a task and he blows up with them you know maybe he's perfectly nice if you're just talking about the weather or the latest you know developments in major league baseball but but he's not under other circumstances you would expect the fact that you would expect the treatment notes to at least bear some resembl medical opinions and formulated a mental r of c that is on all fours with those three medical opinions and about someone ever show the six plus of anger disorders so i mean unless it happened to manifest while they're in the psychiatrist office how could they ever prove it because presumably they have periods of normalcy and then periods of explosion well i can't speculate about what would happen you know in any other case that's what in there is a very important question no because if the doctor didn't happen to observe it then he's not going to put it down as no but it doesn't mean it's not happening right well i also think that the court needs to be aware of the fact that mr poe who sees subjectively reported anger which there's multiple instances of mull going by the way which we can discuss if you like that those that evidence was not lost on the l j but the l shaped valence that evidence against all he had in front of him which was the medical records which showed on multiple would be deferential to a doctor but a coworker might be quite another thing well you know the l j has to weigh the evidence and the l j was reasonable in this case faced we don't have any proof that he lost thirty jobs we don't know the l j considered ellis part d that mr duncan referred to he's been that's fifteen jobs of fifteen years that's quite a bit of turnover even if that's all it is the l j was supposed to rely on when he had three medical opinions plus a medical opinion from a trader saying no limitation says he what to do with the university of wisconsin people with the at the university of wisconsin he met with  that he was editing portions of his treatment notes because he wanted to make sure they were favorable to his just right now i noted that the commissioner is relying a lot on  three doctors mentioning a lingering i mean that for the elegy not to at least take account of that and how many of them are treating how many of them have actually looked at him all of them i mean one of  was an examining but they all looked at him and examined him and saw him and then you have the able j who under be stacked we are supposed to defer to his determinations because he sees the hearing of close who that was consistent with an ability to work and in doing so he relied on three medical opinions of record michelin's can i shift gears and ask you just a brief question i want to make sure that you there's a couple places in your brief where you mention something and i'm not sure i appreciate the significance of it all right i'm not sure i'd i get it you're talking about new regulations that have come into play with respect to mental impairment yes and in particular the different like five or six rating categories and you know you're making the point that here this is the st case that our court is considering under these new regulations what i'm not sure of is how do you translate that or how does it extend to what we're doing here everything we're just talking about ok i could see i'm running low on time so if it's ok with you i would like to quickly answer your question the new regulations head our have changed the mental impairment evaluation in some respects and clarified them in some respects i call the course a chance attention to the various cases where they have expressed concern that an individual with a moderate rating and concentration persistence or paste cannot sustain through an entire work day the new regulations have clarified what a moderate rating means and has  that someone's functioning independently appropriately effectively and in a sustained basis is fair if somebody has serious limitations or an inability to persist in a functional area on a sustained basis the regulations clarify that such an individual would have a marked limitation so with regard to the individuals mentioned in cases like mischler or dosage and paul or the court has been concerned that somebody might not be able to concentrate or persist through an entire work day the regulations have clarified that and that's the st time we have been able to explain this to the court that those individuals would have a marked or extreme rating and probably get disability benefits when i'm out of it raining as this court has said before does not equal a complete and paramount and the new regulations have have clarified those lines of cases and have suggested that a moderate rating have shown that a moderately aning is someone that can indeed persist to say answer your question or thank you  specifically states that they are not new but just a clarification of longstanding interpretation of the rules so this idea that this now resolves d the medium or the moderate limitation doesn't because they define it as fair and marked a serious well you could drive a buick through the difference between a fair limitation and a serious limitation and it's just done to try to circumvent the court's flew all over the country saying moderate concentration persistence and pace has to be factored in and why or how is the question ultimately this case comes down to we have the l j who made simple routine repetitive tasks which even before do as being related to understanding in the remembering instructions for cornerstones that the commissioner uses to assesses understanding a member and carrying out instructions defined and it's not a short cut for stablish it under the new o e s reg system that's being in place pace is going to be a factor that's going to be presented in it's not at all d just a fast paced and out of time milo can i just finish one last point simple work related decisions is adaption occasional workplace changes adaption there other than the fast paced production there's nothing that addresses concentration persistence and pace and that's a finding that was made not just by the three doctors who treated and you have to take into account the even though there was an opinion the medical records provide what could be considered an opinion not necessarily work but of what his condition is and address all of that the state agency doctors said moderate limitations and said pace was a factor it's not