the court warrants rolfing on behalf of martin rinck on this case involves three discrete questions about the treatment of mr a cons application for disability benefits the first one turns on the top of the the residual functional capacity assessment for the physical requirements of work backcross the treating physician stated that mr encountered stand and walk for one hour day needed a cane could not stoop d day and stated that the treating physicians opinion was not supported by the wanted to know record well the regulations tell us that a limitation of standing and walking two hours a day is a pretty significant limitation you'll have a lot going on and a lot but a lot of objective evidence to erode the ability to stand and walk down to two hours a day and to find a knife that will cut between the difference between one hour into our saying that it's not supported by the launch to no record these are can text rule reasons specific and legitimate reasons supported by substantial evidence is and it flexes from case to case in fact pattern of facts order and so ok so that's the case but the vocational expert only focused on sedentary work and that's what she found so so in a wouldn't be standing it wouldn't be soup stooping so your issue would not really be relevant construed the the administrative notice provisions of four fifteen nine hundred sixty and four one six one nine hundred fifty six the defined that the vocational expert can deviate from the dictionary of occupation or titles and in this case the vocational expert is consistent with the d o t but the end of that ruling says the vocational expert may or the book ational can do whatever he or she wants to do but the a r j cannot accept testimony from a vocational expert that inconsistent with agency policy in the broad range of unskilled one hundred thirty seven unskilled sedentary jobs only six of them are rated in the d o t is requiring any any significant stooping yet the commissioner in ninety six ninety tells us that a complete inability to stoop will significantly erode the unskilled sedentary occupational base and ordinarily would result in the finding of disability the vocational expert has to explain herself when she deviates from the d o t the commissioner doesn't the commissioner takes administrative notice of her experience in adjudicating two point eight million claims per year and when the commissioner tells  the general public the people that are claiming benefits that the complete inability to stoop is going to has such a significant erosive impact on the ability to engage in sedentary work and a vocational expert all right are you saying that the administrative law judge trade have just rejected all of that based upon that ruling and in this case i don't believe as i recall that mr wrenn cons lawyer jackson or are found that the the are objected to the qualifications of the expert in any way that would be me that would be you ok i don't recall that did you did you ask to have their witness excluded because she could not make a the give opinion testimony there's a difference between are they with all due respect  difference between objection objecting to someone's qualifications to testify and object and and arguing that their testimony isn't substantial evidence and this has the the  the both provider agreement from the agency the region assigns and qualifies vocational experts the she testifies before ail days on a regular and frequent basis she has the c r c in the vocational rehabilitation credentials to be an expert to know about work but that doesn't mean that her testimony is always going to be consistent with agency policy is that the argument you made below to the j did you say to the no matter what she says it's irrelevant because of this policy that exists i argued that the i believe i cross examine the vocational expert on that specific issue but a road is a matter of law so if that were that was the case that presentation should have been made to the l j and the testimony should have been excluded because it would be irrelevant but whether or not testimony is substantial evidence is a question of law on the appeals council that the district court in this quarter said an equal ability to to assess the legal effect of testimony rendered any cases entitle to have this court tell not only the claimant but the agency and the public that needs to have confidence in the system what the law says and and this court  erroneous this court defers to those rulings in its understanding of what the regulations mean and when the regulation as understood by the commissioner tells us that the inability to stoop ordinarily is going to warrant the finding of it a disability one trooper stripped of the person's sedentary work that understanding of the regulatory framework always has to be enforced conflict and i shift our focus a little but i i thought we were going to start off on the issue of dr ross's opinion as i've looked at this record looks like dr particularly on those testimony was viewed as more appropriate more credible and contradictory to dr ross as it seemed to me the l j did a rather thorough job of indicating why the one opinion overrode the other why dr ross's opinion was not entitled to carry the day took those views and went through dr ross's testimony and used dr particularly on those views to say i don't agree with ross on this that i agree with us and that this is what i'm relying upon is contrary legitimacy requires viewing them in context dr patricia there are no set that you're so you're talking about the weight i'm talking about substantial evidence right the truly out of gave substantial evidence right yes ok so then the question as being more persuasive to me for the reasons he indicated over dr ross's that's all over the system requires that the really the reasons that the l g articulated were that the weight of the that isn't a very good reason once we're talking about the difference between one hour and two hours a day it just isn't substantial i thought dr ross was a treating physician he is and so his opinion is entitle to more weight right his letter was august thirteenth zero seven   that's the questionnaire yes and that when did he do that the questionnaire i couldn't is oh  when he did the seven letter how long it had been how long had ridden cone been treating with him i don't think the record is clear on that he had a gap between treatment in zero five and zero seven it looks like he picks up in zero seven with dr ross and at least two thousand and eight when dr ross renders the second opinion and dr ross describes the condition as as progressive actually the extremity related to the gunshot wound from the letter you i'm stuck with that finding regardless of when some something else made show so i think the court should assume that he starts in zero seven and by the time he's filled up the medical source taken in two thousand and eight that he's he's has about a year of treatment history with a serene calm when he expresses the opinion that it's one hour standing and walking no stooping he had some treatment between two thousand and eight and two thousand and eleven but it wasn't by  ross right correct it was by other physicians there's one record that says he doesn't have atrophy most of the records there are references to having a severely d or he couldn't stand it's not as if it was as clear as it was to dr ross in that interim period of time from two thousand and eight two thousand and eleven whatever records that are there that would support gait never improved there's one reference to the country but in general his gait never improved in the act the muscle atrophy never recovers he loses he's losing muscle mass and his gait is getting worse and that's exactly what dr ross described in two thousand and eight and it's not dark gray it's only medium gray it's a shade of gray a part can i get just one clarification about the record on the mental health part part of his claim yes he apparently it was sent back down by the by the appeals council to further develop to the record i guess i'm not sure exactly why they sent it back down but they asked the l j to take a further look at the mental health issues is that right that's correct ok so then it there apparently there were no further examinations that were done and when it came back down and instead they had the expert testify at the hearing dr peterson with us now there's some reference in that in the documentation to a doctor yassin who ok whom with whom he apparently had been treating that right he saw a number of doctors at l a county mental health and exodus and i believe that's one of the doctors that's counsel is that right i believe i did your honor for those records were not before the a l j because because the l j makes a statement that there's no evidence of ongoing one on one treatment right and dr caught one's record seemed to indicate that there had been one on one treatment for a period of time prior to the hearing that he did in fact have some some treatment and at the hearing he testifies that he was getting some treatment that's correct but he was testimony was was discredited i gather primarily because we didn't have the records or they weren't before the l g a they weren't there for  dr peterson to review and dr peterson was really relying on a pretty sparse record of treatment which this court and win vs chaytor has recognized does not surprise me in the in the prior to the hearing there is after these pills you sent it back down for that very purpose to clarify what his mental health status was i know that there  were records that were obtained and submitted well we know after the fact that he was seen dr compton correct there were records from harbor u c l a that were presented  before the hearing and those but there it's just two pages that's all we were able to get that was presented to the l j you know we request records the subpoenas are very difficult to get from the agency it's just we do the best we nobody asked him any questions like that and it will hear from the governor that's you have a date of december two thousand and six and then the next date is june of two thousand and seven so at the time that dr ross had written the first letter at appears that there have been maybe two visits to visits and then i think the total amount of treatment visits with dr ross over this two year period i guess was about seven or so but when you look at dr ross's treatment records they're very sparse when it comes to in terms of objective findings when the claimant came in and complained of that he complained of neck pain a few times and then the pain maybe once or twice the objective findings are just very limited the doctors ross says that the claimant is in no acute distress there's really no testing of like ranges of motion he did notice that there is some tenderness in the neck some crap it is in the knee but there's there's nothing that justifies the level of limitation that's described in that first two thousand and seven letter and then the questionnaire that came out in march of two thousand and eight there's just the well let me let me he did examine it apparently correct well yes presumably he examined him being why it's made me able to draw some conclusions from his examination well the doctor can draw conclusions but when we're looking at opinions regarding functional limitation are the commission's regulations say they have to be justified by objective findings and so the objective finds we have here going to be the contemporaneous treatment records that well but this was it so we seems to distribute them well now and he did the l j i mean when you look at the r s c finding it's very restrictive it's a sedentary with stand and walk and sitting he's able to use or he's required are allowed to use his cane we have lots of limitations on pastoral movements so yes the l g absolutely believe that this was a significant limiting impairment but when we were turning to the question of the legitimacy of dr ross's opinion which had more much more restrictive limitations and i objectives would have supported the the extra limitations and so we go and we do look at the contemporaneous treat records and the doctor will typically write down the types of limitations they would see on a clinical examination in those records now given the limited number of times a doctor ross had actually examined the claim and you would think that the doctor would record any kind of extreme limitations like the limitations in this significant must muscle atrophy or the significant ranges of motion limitations that he who had very detailed clinical findings during his examination and i also point out that the the l g also afforded weight to our state agency reviewing physician who had looked at the evidence for the does it support if it supports either of them well it doesn't support dr oz's opinion because again the the later treatment records we do have the the claimant coming into and complaining of certain pain or problems that he's having but again when you look at the objective findings the clinical findings that recorded contemporaneously they just don't rise to the level of supporting dr ross opinion it would support  case they don't mandate specific findings the ones that were in play in this case which is ninety six dash nine p eighty three dash twelve and eighty three dash fourteen they all say that when a residual functional capacity because there is an open ended question about what kind of limits these are of c limitations are going to have on the occupational base and so they did exactly what she was supposed to do here which was to consult expert who then explained yes there are jobs that this particular claim can do within this residual functional ca and if there are no further what about what about the about dr cochrane the those records the later records later are going to go to the appeals council right this is you're talking about after the the first that he had not been receiving the one on one treat well the peterson testified to at the at the hearing oh yes with the way would you deal with his problem as you would go one on one with with a psychiatrist or  psychologist cracked and when the the medical expert was reviewing the record which is what the appeals counsel had instructed to do on henri man was to take a look at the sufficient evidence call a medical expert to to give an opinion and that's exactly what the medical consistency consistency here and the record overall where we had during the relevant period we had four doctors two were examining doctors two were reviewing one being the medical expert and one being our state agency doctor who after examining the claimant and revealing what they had determined at the claimant had either no or mild mental limitations so that was very consistent throughout the record the additional records that were submitted to the appeals council would not have would not have changed that we claim it had counsel at the hearing who absolutely could have asked those questions if if counsel and plaintiff thought that was relevant to the op you're right and that that's not the government's responsibility is to develop the record in that manner as you find them of responsibility what it all again absolutely it is ultimately the claimants burden to support their application for disability obviously this is claim had been reminded as it were by the appeals council for specific j has the responsibility to develop the record what does that mean in practical terms well in terms of what the circuit law says it's what the record is ambiguous and here we don't really have an ambiguous record that was before the day at that time we had a record again that had four medical opinions assessed a claim with no to mild limitations there was very little in terms of treatment for the mental impairment we had the it was specifically following the instructions from the in peals counsel to have the medical expert read this record and ultimately the claimant was are presented by an attorney at the hearing who could have developed this record as well there was basically nothing else for the sale day to do based on this record it was not it narrative report was explaining that he was actually exaggerating his condition and was really suspected that he was doing it in order to get disability benefits from the government dr cheryl showed you a conclusion so  you know when he agency sends the claim in for multiple consultation examinations and has our state agency doctors reviewing the record that is that is how the agency attempts to develop the record ultimately the claimant if the claimant had additional records to submit the claim through counsel should have submitted that to the agency at the at the appropriate time let me ask you a question about the vocational expert and what she relied on counsel has said that that the information that she had to establish that he could do sedentary work was was not enough or was inaccurate and there was a colloquy would train counsel and the vocational and expert about the browser that was used and you know i am frankly unclear as to what she was doing relying on and what counsel was relying on in order to for her to establish for her to establish that it was reliable and for counsel to try to establish that was unreliable so what in the record will establish that in fact these jobs were available it seems kind of interesting to me that they vocational expert can come up with two thousand stone sattar and seventy thousand locally that would be in l a seventy thousand now nationally at t so that's pretty dramatic in my point if you and this was challenged so why is the record clear from your point of view that in fact the vocational expert was correct well i think the record is clear because the question that mr ball thing was asking the vocational or the numbers that mr offing was presenting at the at the hearing sensibly off the job or as a pro software the vocational expert kept explaining to him that he was looking at the wrong numbers so she said that those numbers that you're talking about represent categories of like occupations not the jobs within each occupation that she identified as taking for example the stone cutter stone setter position she was identifying two thousand jobs within a particular category of job and so when mr often kept saying one showing you the software and this says you know whatever numbers he was coming up with there no there are no occupations within the state of california only seven nationally and i know those are the exact numbers but just for an example and she said well you're looking at categories of numbers now i would like in what she relied on though i'm very curious as to how she came up with this by her particular browser you know she she never testified at the hearing that she was actually that she actually used job browser experience the fact that she said she observed later on the testimony talk about life i've observed like bench bench assembly jobs like i had that's what she does and that's what the vocational experts testimony is based upon the qualifications are necessary and except that she got very specific a stone setter for an account but you know somebody who does some kind of a review accounting expertise but i don't know that anywhere in the record how she came up with that well under bayliss the controlling circuit precedent she doesn't have to it's that the challenge in bayless was that the plaintiff said well we don't know how the x the vocational expert came up with these numbers because it wasn't identified at the hearing and this court in bailiffs said that's  that's not required it's it's a fact that the vocational expert is recognised as an expert in this area and it's just the experience and expertise that is sufficient which was never challenged correct and the questioning that mr often presented on job as a pro was asking the wrong question was focusing on the wrong on the wrong job numbers he was looking at categories of occupations not the actual job numbers within those particular occupations