good morning and welcome to the ninth circuit a little housekeeping one cases submitted on the briefs united states versus willem the other five cases will be argued and we've read rafe's we look forward to your arguments  terry vs burial when you're ready depression and a pain disorder all of which added together limit her to no more than sedentary work and they also actually prevent her from even doing said terry work on a full time basis but the main issue  here is whether or not since may of two thousand and thirteen she's been limited to at least seven terry because if she was under the medical vocational guidelines she qualifies for social security disability  that she was limited to no more than sedentary work and also rejecting the opinion of an examining psychologist dr rebel who noted that she had many significant mental functional limitations but also observed  the pain that she was to the discomfort that she had even sitting through and evaluated and examination there's also an issue in this case and i'm not sure exactly what you're most interested in but terry was on represented at or hearing and must in arrested in the headaches ok what does the record say about the headaches and how was that factored in because you know there's headaches and then there's migraines and it can have a completely different effect i mean i can have a headache every day and take two excedrin and i can still be perfectly functional but i know people that have migraines that have to go home and be in a dark room can't do things have to miss a lot of work so what does that what does it say here and how was that considered well there's always a hard thing to quantify and the best advice i would give  to that point ok there is no basis in this record for questioning the legitimacy of her headache symptoms and the frequency of her headaches the thing is that she s keeping track of the headaches is keeping a diary and writing them down every time you get one she submitted that and didn't even discuss it didn't consider it had to l j considered her headache diary l j could have  ensured have included limitations in her residual functional capacity assessment that addressed the fact that due to the frequency of her headaches she would be having to stop work for two hours at a time while she's recovering from a headache she would be missing work because of the headaches none of that was included now circling back while that's very important for the residual functional capacity assessment that's not the that between why she's limited is whether she's i'm into said terry work or whether she's not that the frequency of her headaches would preclude any competitive work there so that is one angle is that yes she's disabled because of her headaches but she's also disabled because when she hit age fifty she was limited to sedentary work there's an opinion from dr resenting that she was limited to sedentary work and as he didn't state any legitimate reason to check doctor is that he's opinion he cited and listed range of motion limitations and range of motion limitations can reasonably cause a person to be limited to sedentary work and that was his opinion there's no legitimate grounds for rejecting that have i addressed your question about the headaches you're shaking your head kind of kind of ok what i'd like to do if you don't have any other questions i would like to reserve my time for a bottle let's hear from the who's who from the o's side and you have quite a bit of time thank you morning may it please the court jeff staples thank you for having me on here on behalf of the commissioner who asks that you affirm the district court's judgment because substantial evidence supports the l g s decision here now we've been talking a bit about headaches but i think it's no worthy that there's no doctor in this record that said that her headaches would cause any limitations beyond those that the ok founder to have that if you have but she had a headache diary i think as you  chafe found that misteries headaches constituted a severe impairment that's right at i think thirteen but then in analyzing the evidence for purposes of assessing residual functional capacity the didn't refer to her she testified she had going on a page sixteen migraines or headaches every day so this is in the consideration of her testimony he specific she excuse me specifically called out the testimony about the migraines and the headaches that she said she was having every day however the is then tasked with comparing what she says with what the rest of the evidence shows and that's what this quote refers to as a credibility assessment so do we think that the  determination i know you say you have headaches all the time and blah blah blah blah blah but the l j also said yes i can you can do more than you say you can do yes so is that is there some way that i can know that they'll chase said well i think you'll only have three headaches a month or so and it's not to delegate in the way that you're saying or while the l j didn't quantify how many headaches she thought that terri actually had what the l g found was that the headaches were not of such as a very that they would preclude her from working and so in making that assessment the l g a relied on a wide variety of evidence including you know some of the most important evidence is evidence from a treating source you know someone who's seeing the person more regularly than just a one time examiner and in in this case that was dr khan and dr khan said he started seeing her i believe in two thousand and thirteen he saw her for a period of several months and then in early two thousand and fourteen he said you know there's really nothing i can do for this person she's just not satisfied with these benign mild objective findings that whatever  yes that apparently she's got these things that are all wrong with her but no one can figure out what's wrong but well i guess she did provide specific clear and convincing reasons for discounting misteries testimony about the limitations caused by her headaches and migraines and the medical ever this is at seventeen the medical evidence supports my finding the claimant can perform the physical demands of the above residual functional capacity so the others contrast being the medical evidence with what she's saying and saying no this actually supports my finding instead of her allegations of much more severe limitations so that's at seventeen the at eighteen the l j says the claimant's allegations are not fully consistent with the object of medical evidence so that's another consideration that the l g is justified in making when weighing how much when deciding how much weight to give to terri's allegations the algae then went through much of the medical evidence and that's again the evidentiary support for that finding then at nineteen the claimant's daily activities are not limited to the extent one would expect given the complaints disabling symptoms and limitations so for instance she said she could walk no more than two to five minutes at a time but then there's other evidence in the record showing that she's going for hikes with her son every other day  she has a lot of different impairments and there are some general statements about that you just got off a page seventeen eighteen how do we know any of them go to the headaches because after all the headaches are identified as a severe  so there's no specific comparison of you say you have this many headaches but x and i don't buy it right you're exaggerating or we don't have that in the record do we know but what you have is a finding that terry's allegations are not consistent with the other evidence and so when the l g makes that finding there's no requirement that they go through every single thing that she ever told the agency and say and i don't find this believe will because that the ale jay looks at the record as a whole he looks at her alligator she looks at her allegations as a whole and she summarized those allegations and she said here are the reasons i find these allegations not credible number one her allegations are not consistent with the medical evidence and and when you've got terri's treating doctor who's been seeing her for a period of several months conducting a wide variety of tests on everything that she came in to complain about and saying boy i can't help her with her quest for disability benefits because all that's all she wants to talk about and the object of finding is the things that my tests are finding really don't support any of what she's saying when you have pretty remarkable evidence like that in this record that is the kind of thing that can justify a finding that this person is not fully believe a bull in what they're saying about the severity of their  impairments when you absolutely justify such a dynamic just looking for the finding well so the finding is that there's no specific finding that the headache testimony in particular is not credible but there are finding throughout the decision that her allegations as a whole are not credible and that there are many clear and convincing reasons supported by substantial evidence most notably dr  finding and moreover the l j reasonably relied on much of the same evidence and the record really didn't support the opinions from examining dr risk any or rebel s neck and back but again they are reasonably concluded that that small piece of evidence didn't support the severe limitations that dr risk that he described particularly when terry was hiking walking to his house and just hypothetically and i'm not saying i mean we haven't conference done this so we i don't know what the panel's going to do but if hypothetically we were to remand this case for the allocate to assess to residual functional capacity in light of her headaches what how would you envision that the proceeding would go at that point what would happen i don't see how it would be any different your honor i mean the l j considered her headaches he i don't see what testimony she could give that would be any different she said she has headaches and way and migraines every day vale j expressly repeated that assertion in the decision and said here's why i don't think this is credible i don't really know what there could be not you know that would specifically undermine a complaint that i have headaches this many times all that is is just as a subjective statement and if you're not around her all the time i don't know how you could you're not in her head i don't know how you could know that those aren't happening what we do have is evidence that her impairments are not as limiting as she claims and that's the evidence on which the a focused here and so you know there's there's dr khan's assessment there's her activities there's this wide variety of evidence that shows whatever she's claiming it doesn't limit her to the extent that she's alleging and i think that's the most important finding that the l g a can make and that's the reason that substantial evidence supports the decision here i see my time is almost up but i just want to point out very briefly regarding the argument that the o j should have developed the record  terri was advised of her right to cross examine the vocational expert the l j sent her a notice and this is at page two hundred l j also went ahead and did her own development of the record securing an additional almost two hundred fifty pages of medical records after the hearing she held the hearing open for several months she sent terry supplemental notice that a notice that she could have a supplemental hearing so i think that argument is mare less as well and for these reasons we've asked the court to affirm unless there are any further questions ok thank you thank you exact quote is very telling there is little else that i can do to assist in her quest for disability as her objective fine is do not support the severity of alleged symptoms came let's look at headaches what are the objective findings and headaches almost nil it's a very hard thing to prove if i was having a headache right now you wouldn't know i might if you're vomiting or if you needed to  precisely and light if i could exactly and that is the situation with her if she's got symptoms that are consistent that have gone on for years that show that the second thing she's got she's gone were doctors and complained about this the third thing she's got th doctors have prescribed medications to her for this and the more think she's got she actually has side effects from these medications but she continues to take the because the benefit of the medications exceeds the side effects l g does not consider in her r f c the if the side effects of the medications that she has to take for the headaches that does not consider the headaches nothing that the government has said today changes the fact that the l j did not say  explain how she was factoring in the headache said yes she's got headaches but she didn't include any limitations that actually correlate with her testimony about the headaches nor did she state any convincing reason to reject any of her testimony about  headache symptoms which are fully consistent with the course of treatment it's a course of treatment here that proves the existence of the headache so to speak and the their pervasive nature and the fact that as time progressed she kept seeking additional help she ended up going to dr polo a neurologist to try to get treatments to find something that would work for the headaches and she did different medications she tried other things but she continued to try to get cream for the headaches the other way we noticed headaches you just said you'd know i was having a headache if i was vomiting or i couldn't keep my eyes open or something well th withstand scrutiny many of them do not effect i would say that none of them really was dense scrutiny