good morning may it please the court my name is a time capsule ya niche i'm representing us retailer in this appeal taylor has been disabled since april two thousand and seven back combination of physical and mental impairments i'd like to start discussing the errors involving the mental impairments taylor was evaluated by two psychologist dr brown a doctor low z both of them concluded that she had some marked impairments in her mental functioning she was also receive mental health treatment over of for many times over the course of many years the file is full of hundreds of pages of evidence record i'm discounting that evidence he essentially rejected them almost completely  says here's why well the meaningful distinction here isn't what he says it he says little weight some weight lots of weight what's important is whether or not the limitations that were described by the psychologist actually handle stress of a normal work environment and if the reasons we then have to look at well did he give a good if you give us a good reason for rejecting or for giving little weight to an opinion then that can be acceptable but his reasons that's what it really boils down to is the reasons he gave and with dr low z his reason was quote because there is evidence that the claimants anxiety symptoms were and are mild or not present at all that statement that was his reason for rejecting dr moseys opinion and that reason is not supported by substantial evidence there are lots of treatment notes that show that she has lots of clinical findings makes a blanket statement that her anxiety symptoms were and are mild are not present at all if i show that that sentence that reason his reason for rejecting the opinion is not supported by substantial evidence then then he can't reject her opinion he can't reach he says is his findings have to be supported by substantial evidence and it's not enough you know he says there's no evidence if you had said well some of the treatment notes say she's doing ok and others say she's not doing so well and i'm deciding that on the whole she was she was doing ok the whole time that's an explanation that perhaps could pass muster that wasn't h explanation he simply said there is evidence there's some evidence that sometimes she was doing better that's not good enough because she had an impairment that fluctuated in severity she was getting treatment the whole time and his some of his reason the test the analysis of her testimony as well where he rejected that because she would sometimes doing better and then other times she was doing worse and you can't just look at the treatment it's on the day she's doing better and ignore the disability that last or is expected to last at least a year and so if during that yours is time she doesn't have the disability or is doing well enough that you can do light work then you don't have you haven't proven the disability that are expected to list you taylor has not worked beginning in april of zero seven when she was injured on the job back injury and there's never been a time since april of zero seven throughout the time the relevant period which is through the eight days of the l g decision june two thousand and eleven there was never any time period any extended time period throughout that's over four years where she was functional physically and mentally and it will to perform any type of full time work momentary improvement does not pass muster you that's not enough you've got to actually how would you tell the difference between momentary improvement and momentary anxiety well in this case it's like dr lucy only saw our wants right right and dr brown is our once that's correct and then her treatment providers saw her repeatedly and then after many many visits with their treatment providers her treatment providers ms hanson based on all the ongoing treatment opined that she had overall marked impairment even though at the same time ms hanson was encouraging her to try to get over here trying to get her well so she was encouraging her to drive a little further from your house each time start going to stores again she helped get her in a good direction she was doing over the course of this entire five time period she showed some some some significant improvement but her hands were still a problem her carpal tunnel sin and i have to bounce it back to the physical as well here because the city's same kind of problem arises where there's a doctor dr social security told her to go see a doctor how he's going to examine you examine her and he found that she could only lift i think it was up to three pounds in each hand she couldn't use because of both her feet her inability to be on her feet because she was it i'm not going to look at the exact language but it was once again essentially rejected the opinion about those limitations and instead was giving significant weight to the opinions of non examiners and this is a real problem in this file because they're not examining physicians dr hoskins internally said i'm giving significant weight to their opinions but their opinions were nothing their opinions were  that ok name on it dr turner a few months later ok name on it that's it that's the extent of their opinions and under social security law the opinion of an examiner such as dr  entitled to more weight than the opinion of non examiners and it's certainly entitled more weight in the opinion of a non examining non physician with no medical training that we know of and the other thing that the some of the reason that the different opinion he looks at earlier evidence from two doctors who examined her fur as part of her worker's comp claim which involved a back injury from lifting heavy boxes and  those doctors diagnose the couple's homeless in your but they gave no opinion about limitations because that wasn't their role that wasn't their job no one asked them they couldn't do it they were evaluating her work related injuries only so that evidence isn't justified rejection another reason ailes agus rejecting her description of her test her testimony about her limitations is social security sent detectives to investigate her and in the investigation according to the report they observed her she had children she had they observed her opening a box of cereal they grabs a box you know breaks the seal and she also use your telephone to dial a number she never claimed she couldn't do anything with her hands there's no evidence that she ever asserted that there's no evidence he she the problem is she could use your hands occasionally she couldn't use them frequently and so  government morning may please the court jeff staples on behalf of the commissioner of social security who request that you affirm the district court's judgment because the ale g s decision is supported by substantial evidence i'd like to correct some thing in the record regarding the functional assessment by dr bays and doctors all tahnee who evaluated ms taylor in conjunction with her unemployment claim they were asked whether she had any limitations the questions are not restricted to the impairment that she showed up with they were asked does she have any limitations that would preclude employment they address the question of anxiety or is there anything in their report that doctors all townies the neurologist correct as is that so is anxiety something that he would ordinarily look at no it's fair to say that their assessments are limited to the physical capacity so asking of a if you had any limitations doesn't really exclude mental limitations right no but it does in compass all the physical impairments that she claims it's not that they were only looking at her back and so they just ignored any other possible limitations they were asked to she have any limitations and and i think it's safe to say that that means physical in the context of this evaluation but they said no limitations so there's several examining physicians that contradict d assessed meant that she was limited to lifting three to five pounds there's doctor bays doctors all tawny her treating physician dr johnson said she could perform light work other treating physicians excuse me in treating podiatrist also said no limitations there's really a wealth of evidence on the other side of doctor heilbrun success min and that constituted substantial evidence that supported the rejection or at least giving limited weight to dr how britain's assessment with regard to doctors brown and low z i think judge evil hit the nail on the head when you pointed out that the question is not could there be some evidence that a different fact finder might construe a different way the zion was her general her general theory of the case was that her anxiety and agoraphobia prevented her from leaving the home at least often enough so that she would be unable to so however and the were two doctors came out on that well doctors brown and low z who examined her said that that was largely correct that she had various market limitations as did ms hanson mark limitations in her mental functioning however the treatment records told a different story and this is throughout the treatment records at page eight seventy five she said she had all but overcome her agoraphobia at page six forty five she had  is does this evidence constitute substantial evidence to support the l j's decision to give less weight to the opinions of doctors brown and low z and in this case it did because they said she had marked limitations across the board that this they are there's no indication within their assessments and how could there be as a one time examiners that are symptoms were really going up and down so the wexner winning wasn't we were actually largely related to the domestic conflict that she had that's absolutely right your honor once a situational thing happened her psychological situation was not like a manic depressive that we might go up and down this was kind of episode only related to an event it was related to difficulties with her family and the a point to ample evidence that that was really the issue that she was facing was a difficult family situation but a difficult family situation is not a medical impairment and so her anxiety really showed that when she wasn't facing difficult family situations she had no problems so it can't be said that this medical impairment was the thing that was causing her stress so the l g was entitled to rely on these myriad  instances in the record where she's doing just fine and say you know what i can't really square this record with the across the board marks limitations that doctors brown and low z described what's also really significant about this case is the wealth of evidence suggesting symptom magnification not one not two but three different examining doctors use the phrase symptom magnification in their said symptom magnification profound and obvious dr soltani said significant magnification in subjective complaints and dr heilbrun said there appear to be frequent symptom magnification so the ale j s finding that ms taylor zeus statements about her impairments were often magnified and therefore not credible so the l j had substantial evidence in support of his decision to discount the credibility of ms taylor's subjective complaints and the elderly also relied on substantial evidence to support his rejections of the opinions or his decision to discount the well what i think the l j meant if i may is that this person does have impairments so at step two they all day did say yes there are mental health diagnoses here and they do cause some limitations but to the extent that this doctor is describing limitations far beyond what are in the residual functional capacity assessment i can't give great weight to those because i look at the record and i just don't see that described here so that i think is what they mean similarly with dr heilbrun does she have physical impairments yes are they to the extent that dr how describe no because several other examining in treating sources said that she either had no limitations or limitations consistent with what the l j described well let me start by saying it's interesting that counsel for the commissioner tells us what he thinks some weight means but really it's the job of the ale jay to tell us what he means by it and he doesn't tell us  this is important in this case because in those on to say and i didn't read the second the next sentence which was as stated above there is evidence that the claimants anxiety anxiety symptoms are minimal ok well once again we dispute that that that statement is simply not supported by substantial evidence so that's a problem as if this is a blanket statement to say what other evidence because once again if the ael j had said there is it's not sometimes it i don't even know if it got to the mild but in any event it was not mild and none that statement is false how probably false the issue with dr brown's opinion the saying i'm giving some weight to it is the l j never explained clearly why he was rejecting the opinion browns of pete dr brown's opinion that taylor had marked impairment in her ability to respond appropriately to tolerate the pressures and expectations of a normal work setting so he said i'll give it i'll give it some weight but he doesn't say why why you're rejecting that when the evidence show that that's how she was doing at the time i will say as far as the anxiety the anxiety was worse between about two thousand and seven and  out now if you would feel comfortable going out and doing things so my own testimony there was some evidence that was in the absolutely but that once again the three years of the lapse in which in which she had been very dysfunctional due to the largely to the anxiety he was able to thousand and nine or it was definitely two thousand and nine so it's so much longer down the road dr basan zoltan he could not possibly know what her clinical findings were two years later so that their opinion based on evaluating mostly her back and they actually they did they evaluate her carpal tunnel and said hey we don't think it's industrially related we're done with this they didn't have to say an opinion they said the carpal tunnel is not industrial lated so we're not going to  whether it limits or because that's not their role with regard to the supposedly contradictory evidence from a treating physician dr johnson that evidence was from prior to alleged onset date c f prior to becoming disabled her hands weren't as bad she carpal tunnel but it wasn't that bad yet it got worse over time  with regard to the government does not of you know really can't really explain how it is that you can give significant weight to the how do you deal with three doctors most of whom were treating who concluded that examiners often have them saw her once dr basins all tawny saw her for her worker's compensation claim were evaluating her back and she and i have to say oh my sense is that at that time anxiety which was not analyzed by those doctors can feed into your complaints of pain and it could be she was just such a mental mess that that fed into why she came across as someone whose complaints were greater it could be but the test isn't whether the evidence could support a greater disability the question is whether there was credible evidence that could support the g s position well i mean this is the kind of credibility terminations dr basan sultani once again evaluat early two thousand and seven dr hilden was in two thousand and nine dr how truly despite finding and i'm not saying this exactly not but even assuming he found some symptom exaggeration he still concluded that her limitation she had very severe limitations based on positive to nels and fail in science these tests these were actual objective tests that he did that showed that explain why she couldn't use her hands so basically she might have been complaining all over the place on anxiety and everything else but it's not that's not he still had his opinion so the fact that he saw it notice some exaggeration isn't a valid reason to reject his opinion thank you thank you