good morning may it please the court my name is a time kathleen on it i am representing dennis robinson in this appeal in october two thousand and nine robinson suffered a psychotic break which led to several consecutive psychiatric hospitalization spanning more than five months and although after five months in the mental hospital he was doing somewhat better in fact he was doing quite a bit better  he still wasn't functioning well enough to return to full time employment competitive employment now after he left the hospital he began getting treatment in mental health system but that treatment involved medication and  medication caused him to put again substantial amount of weight and he just he refused to take it after that and he just stopped going to the doctor in just stayed home to avoid everything so  the main issue before the court involves whether or not the ale j properly determined that substance abuse was a factor material to robinson's disability now that  analyze mr robinson both with his substance abuse and without the substance abuse he did which we get cases where dale doesn't do that they there is a procedure they have to follow which is first you look at everything and if you look at everything in the person who's disabled then you have to look at it again and say well why don't the first go through that's what he found he found he would qualify absolutely he was then he was then he goes through and to do the second analysis now got this you know he's got some really serious problems going on that that involve very bizarre thinking and it's manifest throughout the record and it's manifest in his testimony you read his testimony and it just it goes  in odd directions so they'll be found that credible then he said but he's not credible when he talks about how he is when he's not using d n a but he wasn't using d n a when he was testifying he was just telling how it is these are the the crazy thoughts is having with people that use drugs though sometimes i mean there's always a little suspicious about their reporting about what they're using and how often they're like he said he was using marijuana once a month or something and you know it is hard to tell and so yeah i mean so one of the other issues is because he had basically pulled away from the mental health system because of his  bad side effects there wasn't anyone treating him there was an evidence to show or how's he doing now and at his hearing his attorney you know it's obvious the judge did discuss this with his attorney and the attorney made a formal request while this is would it be appropriate would be appropriate here to do a consultative evaluation and figure out how is he doing know what is going on now and the judge said he'd take it under advisement and then didn't do it now i think that because of the nature of the in the complication in the difficulty of trying to separate out you know you've already found this guy is disabled but now we're saying he's not because he well i use a lot of drugs they're not going to be highly functional i mean we've seen this with lawyers that come to court and they're under the influence they're not highly functional but that you know but but i guess your client challenges the failure to explain why rejected dr i think opinion that robinson's mental health symptoms may be independent of his substance abuse and then but then dr carden or codner like dr lincolns did not have the opportunity to review all of the medical records as dr connor sob robinson fairly early on in his treatment so i guess what i'm coming to is why wouldn't the case personal rejection of d hospitalization and and opined that it was it was not this is not a drug problem that he's showing here this is an underlying mental illness and there's no question the judge agreed that he has mental illness aside from the badly during the psychiatric hospitalization i think the bigger error in the elegies analysis of the medical evidence involves his treatment of the the evaluation by sam martinez who has a master's degree social worker at during one of the hospitalizations who evaluated robinson and said he was severely impaired in many different ways and he in his evaluation detailed all of the different problems he was having that this was after he'd been clean and sober for a month i think or longer so he was some you know away from drugs away from alcohol way from everything and he was just not doing well and it was well documented g s reasons for rejecting mr martinez opinion don't withstand scrutiny because for example he rejected his opinion because he's not an acceptable medical source but that's not a valid reason to reject a and other source medical sources opinion the mere fact is a consideration is not it is absolutely consideration but even in the in s s r thirteen to p which is the current  this and l j has to consider the opinions of other source medical sources and sometimes those opinions are entitled to more weight than the opinions of acceptable medical sources i am just a few questions for you so when we get to the second analysis your position is that the most fundamental errors is failing to given due credit to martina's well i think it's two things is that your argument i don't find it's probably not going to get you home base well there's just first you've got mr martinez there was no valid reason for rejecting his opinion when he got out of the mental hospital he was treated by i'm not going to get that name right now my head dr sampson and dr sampson gave him a g s for forty five and noted that he was failing with the medications he was having the side effects with documents why he stopped taking them but really what this boils down to then is his testimony which was found to be credible well maybe so but i think that it's contradictory to say what does significantly mean will significantly it sounds like more than good perhaps it probably is i've always had a problem if he just says i find incredible is that good well wait but when you're talking about doctors credibility doesn't enter into the picture because doctors are presumably credible in the way you can see if someone said expert and someone said gee p or something like that and they're talking about you know i surgery as opposed to a family practice doctor you know now i mean you still could find one more credible than the you could still could put more weight on one than the other but if it were if you weren't you know the thing is i think he got he basically this dr sampson didn't state an opinion and none of these people really did it wasn't that clear for them saying he can't work other than mark mr martin is stated a clear opinion that this guy absolutely cannot work he's well crazy things but what about ok how important are the facts which i think this was a fact in the record that robinson to not seek treatment in the year leading up to the hearing and that he performed three months worth of community service seemingly without significant issue how important is that he was performing the community service under they were basically an understanding employer and if he didn't perform to the irrelevant though i mean i don't think so and the reason i don't think it is the think of what relevant yes he did he thought it was well you know it's a funny thing he thought it was relevant and yet he found he found incredible of the credibility analysis boggles me to hear because if somebody is credible they're there on this he's telling the truth about what his situation was he when he did this work and he testify well league they gave me special you know they were they were pretty easy i could be credible and and say that i'm a really good writer but then everyone that looked up and i believe that but then everyone that looks at my writing thinks i'm not you know so that might not i might not get there might not be given any weight that i'm not i'm not fine i think better people think they can sing and they can't sing what's interesting about the credibility here is that in when what he was describing was was crazy stuff and his hearing there was a six on the microphone and he had to stop the hearing and asked to cover it up because he couldn't look at the six he then started telling stories about six as he kept encountering and he just got he's got a psychotic disorder that's untreated and it's untreated because he doesn't have insight into how he should be treating it and because he failed the meds because they were causing side effects that made him unable to tolerate them what's the what what's the situation if  someone if someone can be ok and they take their meds but they refuse to take their meds do they automatically get it to are they automatically deemed to stabled because if the side effects are so bad that they can't tolerate them then that's something that has to be contrite but it but some people just don't like taking medication so they don't take it and they're goofy when they're not taken it never one else thinks they're better when they are but some people have so little insight into their mental illness credibility case so i think there's been a little bit of confusion about what is a credibility finding the ael j in this matter considered all of robinson's  ments together including the substance abuse and said that to the extent that he testified that these impairments including the substance abuse were disabling that testimony was generally credible however it's not inconsistent for the l g to then go on and say however to the extent that he testified that the mental impairments absence substance abuse were also disabling he's not credible and then the l j went on to provide several valid reasons for that second finding some of the most important reasons that the gave were that robinson improved with treatment to the point and also received no treatment for an entire year leading up to the hearing those are valid credibility considerations in and can reasonably suggest that a person's impairments are not as limiting as they allege robinson also performed manual labor five days per week within his supervisors tolerances this at least reasonably suggest some ability to work beyond what robinson was alleging as disabling mental that sounds right your honor good weight to what he testifies he doesn't really discuss dr cart cotner that's correct right ok so when you get to the second analysis where he's got to figure out whether or not his substance abuse is a material factor he talks about all the other doctors but he doesn't at all bring in dr cotton or doctor like and correct it seems to me to be a serious omission so first of all the it's not harmless because it's you know here's what they had to do the algae i mean i don't know how he does it this guy suffers from serious psychological problems mental problems he is has substance abuse problems and you've got to try and separate it out i don't know how you do that it's difficult it's difficult but so i don't know why these other two doctors weren't also factored in in the second analysis particularly  paragraphs of the opinion twelve and thirteen so with regard to dr likens the l j did discuss his opinion in the first stage of the f d a in a analysis so the l j did consider and discuss dr doctor like and because he said doctor like it did not have the opportunity to read the entire record so what dr likens essentially said was that robinson had chronic illness chronic psychotic illnesses that persisted even absent his drug abuse problems and the ale jay's decision comports with that finding because the l j also found that robinson even in the absence of his substance abuse problems still had severe mental impairments that caused additional functional limitations so the ael g accounted for that opinion at both stages of  analysis both in finding that robinson suffered from disabling mental impairments including substance abuse and that even factoring out the substance abuse he still had mental impairments that still caused serious functional limitations but it's not inconsistent with that to find that those mental limitations were not disabling because neither dr lichens nor dr codner said that his mental limitations were disabling absent the substance abuse all they said was he still has mental problems even if you factor out the substance abuse so when the goes to the second stage of the analysis and says yes i agree with that i give it good weight whatever that means i agree with it i m an error to discuss it although well better to discuss it and say what you're doing with it it's obvious what the l j was doing it with that which was agreeing with why isn't this a marsh problem because in marsh the  opinion issue described limitations beyond what was in the old days decision so when you don't discuss that then we don't know what you thought of those opinions and you didn't account for it in the decision but here accounted for dr connors opinion because what dr cot said was that robinson's bipolar was not primarily substance induced and the l g agreed with that and said yes i agree he still does have mental impairments and they still do cause limitations but what neither dr conn dr like in the said was that his mental impairments absent substance abuse cause functional limitations beyond those the able j identified so that's why the decision is fully consistent with these two opinions all they said was he still has mental impairments and the greed and said went on to do that second stage analysis and said yes he still has mental impairments even when he stops abusing substances however he so is or if i'm understanding your argument i mean if we wanted to apologize to the i don't know if i don't know if i'm understanding at that essentially you're saying that they didn't make any legal errors and it's a really hard case and the dead what they had to do and even if we would have decided it differently we don't get to reweigh it absolutely your honor substantial evidence is an extremely deferential standard of review so unless there's some sort of legal error in here there isn't well but i don't see how he can have that given the critical decision that had to be made here i don't know how the taken in that second analysis only talking about the second analysis yes how in this discussion and their analysis he can completely disregard liken having given like an good weight for whatever that whatever that means and then failing to discuss cotner in the second part of the now in the second analysis  that was critical information bearing upon his psychological you know with the source of his mental impairment yes your honor but what the big deal jay didn't disregard dr lichens or dr codd nurse opinions because the decision  inconsistent with those opinions his decision what it would help if he would discuss them and that's what marsh kind of goes to the need to discuss relevant important evidence yes your honor and in marsh the reason that the ale j s error in that case in failing to discuss that evidence the reason that was in error and the reason that that error was harmful in marsh was because the opinion at issue described limitations beyond what were contained in the decision so if you defacto reject an opinion but don't say why then that is most often going to be harmful error unless there's some other factors that weren't present in earlier that's all or any evidence it was that ever said at any point that just a part of the record that they were earlier before some of the other evidence developed that's definitely a part of as the l j goes through and analyzes the medical evidence and particularly with dr lichens even brought to it was brought up that he was in accounting for some of the other evidence now went at that so when did what did the l j say about this here not taking medication in the community service that those were credibility factors that went to how reliable is  robinson's statements about his own limitations and so those are factors that tend to show that a person's limitations are not as significant as they allege so if you say you have such as a whole and the l g looked at the medical evidence and looked at these other factors suggesting that robinson retain the ability to work within the residual functional capacity that the l g identified and substantial evidence did support that determination in the form of medical opinions from doctors eskin dr sampson dr donoghue and dr post avoid and really the only evidence on the other side of the scale was mr martinez as another source opinion whose opinion the l j provided several reasons to reject well it's easier to reject the sort of anon that would call other source that's correct failing to discuss and the question then becomes is is it is it a harmless and you say well it is harmless because if you look at everything really did touch on it well but this was a critic i mean the l j even acknowledge that you know that his condition would the the disorder would persist even if the claimant substance substance abuse were to stop although to a lesser degree i mean this is a very fine determination that had to be made here well that's i think your honor hit the nail on the head there that's exactly what they said and that's also what dr codner said and that's pretty much the extent of what dr carter said dr connor did not describe a bunch of functional limitations that would persist in the absence of robinson's substance abuse so it's to the extent the l g said exactly what you the way you just put it and that's a fair characterization  think that's also a fair characterization of dr codons opinion so my argument is that that makes it not error to not discuss dr conner but to the extent it is there it's certainly harmless because the l j fully accounted for that opinion by finding that robinson did in fact have mental impairments that persisted absent his substance abuse that's what dr like and said and that's what dr conner said and that's what the l j found so coddlers opinion contains no limitations contains no other assessment that in any way contradicts the ael j s analysis that goes on to describe limitations beyond what the algae found that's why to the extent it is believe that was in both stages of the analysis paragraph  eleven i believe you're correct your honor and so i think what that goes to show is that look i'm agreeing with this doctor i'm agreeing that he does have limitations and even though this doctor may not have been fully aware of the extent of his drug abuse prior to his period of sobriety but i do agree that he does have some serious some severe mental impairments that do cause serious limitations nevertheless these limitations because they l j went on to step five these limitations don't preclude robinson from working at unskilled relatively simple jobs which he had shown that he was able to do for at least a three month period before they all g s decision o because substantial evidence supports that finding yes that the court from thank you we  twenty two this is really so this is very very serious dysfunction and it explains why i ended up being in the psych ward for almost five months that's not this is this is serious problem in throughout that now with regard to the testimony robinson didn't testify well well i'm on drugs i'm like this when i'm not he just testified about his activities basically and the a l j said ok i find that credible except he's more functional when he's not using but there's no evidence to support that it was just a l j just saying it basically the and the fact that likens didn't review later evidence is really he go in the store and he would just he couldn't follow through he couldn't even do something as basic as that by himself so in conclusion i just ask you to remain on this case for a new hearing so that he can make an l j do a complete