not there is substantial evidence in the record as a whole to support the decision that was made below and that evidence must be sufficient to support the conclusion of a reasonable person considering the record as a whole and not just the evidence that is your main point that dr took good was the treating physician had been the treating physician before and after the onset of disability and that the mandela only looked better once and technically it was before the onset of disability not exactly he did not get involved until just the onset of disability he saw her in august of two thousand and four dr took it for the first time after she had had her surgery in zero three on the carpal tunnel but you are correct judge he was the main treating physician he saw her approximately twelve times over the course of a two and a half year period and dr mindell saw her on only one occasion so and that and when it was before the onset or the alleged onset of disability  on the subject of complaints of the ms manager and what would be your argument that that's that's not the case that he's actually relying on testing and significantly more than subjective i think he's doing both in an on scene candor but i really think what dr toby did was to number one look at the e m g studies which showed evidence of nerve damage at the wrist both sides by that early also at the right doctor excuse me to use his expertise in looking at a patient's condition to assess is this person the linger or is this patient isn't a magnifier to her complaints relate to what i'm finding both in terms of the e m g and in terms of my nerves all those things so he did he did physical exam he did range of motion nerve tension tests sensory assessment turning for tester deep tendon rough we flexes sensory testing muscle strength elevated on stress test i mean he did a lot of testing correct i would say so yes i think that the extent of the judged below the l j said that he did not i don't know quite frankly where that comes from because he had the diagnostic testing in the and then he had the what we call the provocative or clinical testing that the doctor will do on physical examination of the plaintiff or the patient in each of those occasions he would be was able to reproduce those symptoms which for him confirm that she number one had these and said i've examined her she does have this condition but she can go back and do some kind of sedentary work dr toted knows her a lot better now the problem you have in in social security i'm like workman's comp here is that you have an extra step and so security ok assume for the moment that the person with the poor cannot do the job that she was previously doing other other jobs that with her restrictions in the community or community  large can she do and that's what was found here how do you overcome that step five analysis i would say if you think about it your honor number one she tried for the second return to work attempt to go back to modif work in an office setting she got in trouble at sears feeling the conveyor belt and the repetitive work but her second return to work was in an office setting where she did some copying a little bit of computer work a little bit of filing those are certainly lighter position lighter work and she felt that after only a two month trial she lasted two months she worked eight hours it was too much she could have back the six so that's that was you know again that's that's really step poor all right and then we get to the v a which base identified three jobs and if i the job of packer it's sorter and i believe visual inspectors will inspect the visual the locational expert testified that those jobs required the use of hands plural ective pass it as being ok so it involves use of hands and they used excuse me had they used tobe gets conclusions and diagnosis and incorporated them into the hypothetical for the vocational expert would the result have changed i think it would have had to ipso facto because his conclusion but because his conclusion was that because she is so symptomatic even with regard to activities of daily living and can't really get through her own day around the house without significant problems she would certainly fail if placed back into the work setting even in a modified position even at a sedentary job so i think had that been given perhaps there may have been a different outcome with respect to what the ve might have said talking kept saying that she was disabled and somehow i sense that that that maybe the psychologically in terms of how we are as people and how we react to things but i think that what perhaps should have been done was if the judge would have gotten beyond what he was saying in terms of that conclusion that he uses disabled and looked really to what he had to say about what he knew of her from seeing her all those times have been a few years she could have recognized that he was the doctor who knew her much better than the one time examiner dr mandela could have perhaps gotten beyond the fact that he chose to label it a disabled  algae does is devotes one really i think one line to her she testified doesn't have any problem walking sitting or standing she does have limited reaching with her right arm well there's a lot more on the record about her inability slash disability is there not that's true i think that the problem that the algae had reviews for me in my review is that when you say that to us affects only reaching pushing and pulling it doesn't really give you the whole constellation of what's wrong with this person if you look at what dr togaf talked about with his patient over those times where he found that just put makeup on because it's too hard to apply it's too painful to put makeup on her face she can't brush your hair she wear sweat shirts so she has pockets to put her hands in for arm support she's dropping her keys she's dropping her cell phone her hand gets called that sweats it's wells all of these things that he's seen over a long period of time really show that she's limb that limb although it's out of the way is not going to give you any difficulty so you can do certain jobs for him and certainly be a lot of difficulty in their everyday lives that's true you would have some difficulty but your point is direct judge that my position is that the pain that she would have would preclude her ability to do that work even though it is involving the right arm in addition to that the point i want to make as well is that there was some evidence by dr told get at page one sixty seven of the t record in which she said that she was beginning to develop the t o s sometimes on the left side as well her left arm was also becoming involved and that's due to the fact that you basically are over using the left arm because your right arm is of no practical use doing day to day a right side disability but she does not accept that there's a left side disability in two refers to exhibit three what what is that all about the bear with me or and if you don't have in so getting back to my my point i think it's clear that what happened below was that the treating physician rule was violated by the judge and by the lower court in that they should have given much greater weight to doctor told it than to worker's compensation carrier their benefits are paid in full and then social security gets the offset so to the extent that miss masher receives worker's compensation the government so security will get credit for that expire probably sometime in two thousand and nine so this is really her only chance at benefits at this point based upon her earnings record currently or are now in her condition of truth or maybe she has  show an improvement in her condition so if there's an award given they could monitor her condition and they could bring her back for review at which time they would look at whatever else may have happened to her if they can show an improvement such as she can work and it would be and it's the station of the disability benefit good morning my name is ann van shaven and i represent the commissioner of social security i'd like to make just some opening remarks about the case and then turn to the treating physicians opinion doctor took its opinion and your concerns about that  this case involves a very young woman she was only twenty eight years old when she alleged that she became disabled her claim as has been noted arises in the context of a worker's compensation claim she was awarded benefits for her inability to do the job that she did removing essentially and jamming or removing boxes on a conveyor belt and that job required and we aren't familiar with the facts yes and but the the the standard for disability here under the social security program is of course different and she needs to show that she's unable to perform any other work and we understand that the question is when you look at the  threw up until page six of nine and it's very matter of fact and all of a sudden says the under side administrative law judge is unable to give dr targets opinion significant weight for a number of reasons first this is merely a conclus  finding apparently based on the complete plaintiff the claimants subjective complaints secondly the opinion on the ultimate issue of disability or of the commission or third of its opinion is not supported by objective medical evidence of record the second looks like she just upset the first is it wasn't merely a conclusory finding based soley on subjective complaints there were a lot of testing done which ties in with the third and it's it's just then goes on and says dr thomas diagnosis was especially the same as mandela and he did not indicate that the claimant was totally disabled cordingley the underside administrative law judge cannot accord any significant way to dr tartt opinion as far as total disability etc but that doesn't make any sense that's completely illogical let me try to help and explain i think what the jet with the judge has for her of course are these two opinions dr toted and dr mendel they both have examined her they both are specialists in different areas they both have a pit pieces of their opinion that supported by objective medical findings to the extent that that they're mentally basically agree and she says togas diagnosis was essentially the same as many bells and he mendell did not indicate to the claim nt was totally disabled mendell looked at her in magic and her onset of disability alleges august i mean how do you take mandela over toga in that type of situation and it gets worse the well i think that to the extent that they both have to the extent that both doctors conclude that she has functional limitations in her hand and on her arm the l j credits that that piece of the opinion because that's supported by the objective medical findings the energy and the testing of a through f scale it to the extent that after kogut says that she is totally disabled of course under the regulation that's what's called a complete stranger i nor it she can ignore that part of it as it's up to her to make the finding whether it's only sable yet still is able but the point is it's what's said here is you've got two people coming to the same diagnosis and man dell who looked at a one time before the onset of alleged disability didn't indicate that she was totally disabled accordingly i'm going to find that she's not disabled and then a good word gets worse is i accept d mandela's opinion but limit the restrictions to the right side only what gives her the a right to do that she can't do that you know there is mandel says such an a complaint led in my opinion lead to left upper stream extremity findings amanda also says full duty is doubtful at present and in the perceivable future if there's a question on her part or she's incapable performing those activities and one could consider a functional capacity about i mean i don't think mandela gets her home free i mean gets her you know back to work there well i think there are several issues several questions raised but so mendell well i'm go back to judge amber is present how can she you know laterally say i you know i just count and the finding that there's a problem on the left side the ultimately the jobs based on the testimony actually don't require overhead reaching pushing and or pulling are fine manipulation so that's going to cover both arms so for instance a job such as a visual inspector in which you're say observing a product moving down the conveyor belt and removing a detect defective product is essentially a visual job i think that's nobody really moving and you have to manipulate something you know maybe you're seeing if a moving part is there or maybe it's a set of keys and she drops keys i mean i don't know just seems to me it seems to me she's taking some things out of the equation when she asked a vocational expert what you know what this person is capable of well i think she's concluded based on the her her function the functional limitations that find and what she calls sensation or excuse me feeling which is the sensation related resulting from carpal tunnel so she can't define manipulation but she can do gross manipulation so for instance picking up keys is a gross a deficit to claim its left arm beyond the two thousand and three finding of that now she's back to the left right and how can she reject all of tokens opinions for three years when he's looked at her after the onset twelve times or up to twelve times and he is saying there's clearly a a prancer or a going from the right side to the left side over the course of time well that the decision that as it's written may be not well organized but let me try to help with what the and what i think the l g is doing here so the l t as presented with these opinions and to the extent the are just looking for evidence of functional limitation because of course this disability program is based on what you are still able to do what your functioning is and the l j is crediting that portion of dr toga opinions which are referred to her arm and her hands which are supported by object the medical findings all of the e m t and all of the tests and did both of these doctors agree that she has of his opinion is that she can't work do sedentary work so i as i understand with the saying is the piece of the opinion that's not supported by objective medical findings is the extent to which dr token says she can't even do sedentary work because there isn't evidence of impairments in any other body part that would limit her for instance from sitting or standing or walking she says she can walk a mile he's reduced her considerably to sedentary work but what does mandela mean when he says she can return to modify duty as the date of my report full duty is doubtful a present and in the foreseeable future restrictions and limitations are as indicated i mean full duty both doctor told that and dr mendell evaluated her in the context of her worker's compensation claim and some of the language in those reports just because of where they originated refer to that's a worker's comp concept that she can't return to her job that she was doing which was heavy and he says at a certain point she could return to my with no his opinion is three months before her onset date and now my response in fact very much before her onset and of course the reason is that she has a worker's comp claim first and then she but i mean i write something about the reason i mean it logically so what the so she comes before the agency with her history and her medical evidence the agency considers that evidence also sends her to a console of course she chooses her treating doctor because of the regulations we prefer to do that and so the evidence that the a yes b l j looks at evidence technically before her onset and i would suggest that it's performing the activities on his work well of the capabilities form then perhaps a functional capacity evaluation should be done and without ever done functional capacity evaluation because his to the extent that he finds that she has functional limitations the ael j includes those and their space very specifically restricts her but that the evidence as a whole doesn't show that is unable to perform this very limited range of sedentary work that they're told that even says that when it does the console to her condition has plateaued that her pain is now at a three is progress notes at the end of the record at about one eighty or ninety show she's doing better she's doing better her kids her pain is out of three she even she says that her medication controls her shoulder pain she has some numbness but it's not constant i mean this is not to say that she doesn't have limitations or that she doesn't have some pain and some discomfort but the question is is it to the extent that she's have a problem working full time initially she went to her this is before the condition got worse yet one issue really should both of those jobs are different from the one that the j concluded that she could do based on  the first time she did go back to her job on the conveyor belt there's some test me that she didn't have lifting but she had other movements of her arm she did an office job which was typing that's fine motor aggravated carpal tunnel but the l j i found she could do work that wouldn't require her to do those specific movements i mean i think really accommodated the limitation she had based on the evidence where where is the hypothetical in the record with respect to the to the left side the l j does say they have to consider that as there really is more evidence on the right than the left and if you go through the record there are findings on the right very few findings on the left but to the extent to the extent that she has some limitations and some that hurt she now has the rest of that in the left v testified these jobs don't require essentially bilateral so it's the had the l j found on the left perhaps but the evidence actually shows that it's less on the left and she uses the description given of the top of two eighteen to a vocational expert is very  sketchy as lifting a says no limitations to standing sitting walking occasional climbing balancing but never on ladders there would be a right upper extremity overhead reached limitation and the right upper extremity feeling limitation there would be a need to avoid temperature extremes could such an individual perform pass relevant work no could perform any job yes i mean i'm just thinking about i prophetical really doesn't do  of three is when she's home basically doing nothing and and not doing really anything whenever she does more activity she gets into trouble and that causes the pain level to to rise to much higher level she's taking gabaa penton which is a nerve medication for nerve pain specifically and she's taking hydrocodone which is a relatively heavy duty pain medication so she is medicated to this date with respect to counsel suggestion that the jobs found by the v are somewhat maybe easier than even the modified office work that she tried to do i would suggest to the contrary when she went to the office setting she was doing some filing not very much typing a little bit of sorting maybe some copying she can vary the activities  in that job but if she's doing a job as a packer or a sorter or an inspector she's going to be at a location where she's going to be using both her hands to do those positions in the vs i said did say page to twenty that you need to be able to use both hands for what she termed gross and it relation doing those jobs so to the extent that she failed going from eight hours to six hours to four hours a day in a modified office setting she would i would argue do worse if she were put into the kind of cookie cutter factory type jobs of sorter inspector and packer that would cause her much greater difficulty than she had even trying to the office where i think in summary we have a very unfortunate woman council mentions that she's young and that's true she is younger but she has a pretty serious condition to reskill and syndrome is not a fun condition to have its effect at all aspects of her life not just comparing her ability to continue to work but it's as you can see from what she's testified to and what talk you took it as described she has severe limitations in her  so for that reason i believe she is a very deserving candidate for disability benefits and i thank you for your time what are you asking us to do you ask us just to remember i am asking you to or i'm asking you to reverse the decision i believe that the evidence from dr tow get as the treating source is so overwhelmingly clear in terms of his the limitations perspective what her problems are that it wouldn't it would be i don't want to say fruitless but i think that the conclusion should be the his testimony carries the day and supports an outright reversal with the benefit but if you can do not reversal then w