involves a man who has a disability resulting from a stroke which has caused a brain injury and that has caused  substantial cognitive limitations at this point in time social security agrees that the stroke disabled him there was a subsequent a decision and at that subsequent a lunch a decision there was was never presented to the district court was it that's correct and and therefore maybe even waived so i hope we don't get into this available at the time that the case was i understand that it goes for a different time period right it goes for a different time period but the disabling condition was client's last insured date and i hope you're going for something better than that ok i am but also i would say that the cognitive impairment grows out of a stroke and the stroke that there is an m r i there is a c t and that shows that that stroke occurred while the claimant was still ensure an issue in this case as the claimant is not getting his insurance benefits he's left with a welfare benefit so in terms of the legal issues in this case brain damaged individual and it was important for him to to put on the evidence of his case it was important to have other people who isn't isn't it true he would leave the record open for a statement by bury the l g a at medical records with various iterations of the brothers concerns and observations in that instance authority do i have to suggest that the l j must have a live testimony rather than written testimony so this court has repeatedly stated that to do something he did have all these medical records then i want the case and says i've got to have a live testimony rather than written testimony but even if there is such a case why is it not harmless relied heavily on the testimony from the brother it's important if you take a look at the i'm not going to look at what the l g a did afterwards i want to look at what happened he the brother's written statements do not describe symptoms any more severe and the claimant's own test that being the case and if the testimony was inconsistent with the r f c then it would be inconsistent with the medical testimony itself so all of that said it's not harmless because the r f c controlled and it was based on the medical testimony this court has repeatedly stated that testimony from lay witnesses is important and that is reagan nater roberts robin's own zone side me the general rule because in there ok so a general rule that it might be harmless error and i'm suggesting first of all and all this testimony in the record they could have reviewed and if in fact it's there which i didn't find it to be error did casted on then i sat back and i said ok the written statements don't describe anything more than the r f c also already has nothing more than is more severe of the plane of some testimony and the r f c is consistent with the medicals so why is there error that is not harm us well the third party evidence in the record says the claimant is easily confused and often gets lost even attempting the simplest task they oj found that the claimant was able to do simple repetitive tasks so the third party evidence in the file contradicted that and what did the do with the written statements from the third from from the family members in the record where does a o j discuss that in the decision no where they o j not only refused to allow the witnesses to come in and testify then they ignored the statements from the family members which were in the record now judge this court has repeatedly stated which you just referred to in the prior case that if they o j is going to reject evidence that it's not for the district court to come up with reasons they o j needs to come third party evidence is important can you ever have a situation in which they o j says i won't hear any evidence except for testimony from the claimant and then and this is clearly contrary to the rules of this court then in your decision with regard to the written statements you don't mention that you received them you give no reasons whatsoever for rejecting them and as i say those third party statements were not consistent with a o'jays are of c because the third party statement said this person doesn't have the ability to do simple repetitive anything else and then the decision comes back and it's it's exactly what happened at the hearing the judge paid no attention whatsoever to the statements from the family members did not mention them in the decisions any place now the now i guess i missed read or missed lead you even if i find it to be air which i think you are suggesting it is and i came to that i mean if i came to the same conclusion then i looked at what the brothers written statements said and i said to  anything more severe than the if you wish your client's own testimony described i couldn't find anything and then at that point i said well if the r f c is and if the r f c reflects what the medical testimony is then there is no error it's harmless because we have a harmless error standard here i mean even if you all those things you're saying are true we do have a harmless error standard and i'm just trying to i did my best to try to look through as to what the harmless  the the testimony of the brothers were that even on a very simple task that you couldn't show the claimant a simple task and he couldn't follow through food in the refrigerator what was a mistake that you made on that the judge said and he said i can't remember what the mistake was that's the only thing the claimant testified i can drive the claimant can drive but he needs someone else to show him where to to go to claim it was not a good witness for himself the claimant is fighting his dis ability he doesn't want to admit that he's disabled and that's why the third party evidence was really important and this court has said for rejecting third party testimony you have to give germane reasons and that a o j didn't do that now i guess what you're saying is well if the medical evidence didn't support the man being disabled then it doesn't matter what the third party testimony was but i think this court has clearly said that the fact that the third party evidence differs from the medical evidence isn't a reason for rejecting the medical evidence so the so on that doesn't make it harmless error of course  simple repetitive tasks in an environment where people aren't bothering him so the medical evidence didn't support the a there is no substantial evidence to support the decision in this case now there was another medical report which was from dr calle h and r kelly says amends disabled but the didn't follow that nor did so what is the evidence that they o j relied on where's the substantial evidence to support the decision in this case i submit there is none but there was a j said i give great weight to this to the social security doctor that examined him but the social security doctors said no impairments social security doctors said could you give us  do that is supported by the vocational experts testimony is not medical evidence to support the judges are see so they the vocational expert simply responds to the hypothetical that is supposedly based on medical evidence of thing that was left out of the hypothetical the thing is that he's unable to perform simple repetitive tasks that's what dr cayley's said that's what his family members said that's what the second a o j found that's why they found him disabled i are claimants brother reported episodes of dangerous cetera so all of that was before the doctor even though the statement of gerry spence wasn't mentioned and he didn't testify all of that the  before the a l j at the time of the decision and actually commented commented about it being directly contrary to dr proces finding so i don't see that we've lost anything by not having don't see what the problem is of not having him testify the problem was that the man's cognition is weak and he didn't if you read through all of his testimony he a very poor job of explaining what his problems are because that may be that the algae apparently thought that he had a handle on it was able to have the statements from the brothers the only mention of the statement of the brothers was was this the treating physician dr sha during the medical status examination which claimant scored a thirty thirty what does that mean ok so that is not a decision that is you're reading from the district that on one day barry and my claim went into see dr shah and barry said this man's cognition is seriously off dr shah gave him and many many mental status exam and he did perfectly on the mini mental status exam and dr shaw said based on the information from the brothers i wonder if this man had a stroke and dr shaw sent him for a c t scan and sure enough a c t scan showed that he had a stroke no one ever cited the statement to dr shaw in a huge a decision as a reason to discredit the brother statement and in fact it's no reason to because that information which was provided to the doctor led to the diagnosis of the stroke i mean it was clearly important and correct in for mission which allowed the men to be diagnose all right we'll listen to the government good morning may it please the court shontelle jenkins for the acting commissioner of social security your honour's in this case dale jr gave claimant a full and fair hearing anderson to the reasons you pointed out the algae also offered the claim with a supplemental hearing which is noted on page three thirty two of the excerpts of record so that if claimant want to claim it could vent additional witnesses in addition the ale j provided germane reasons for discounting the brothers lay witness statement the algae explained that she gave greater weight to the findings of dr proces and the perfect mental status examination score that claimant also asserting and so they'll j's reasons there are sufficient for her that yes well it seems i mean i let him argue what he did i did not challenge him because it seems a little worrisome to me that the best i can find about discounting the brother's statements when the l g a did not let them give all of the statements they wanted was one sentence says believe the doctor more well the the as a did actually give them the opportunity to provide for their i understand i rather die but at the time when they were wanted to give run out of time and went the other way and they had all these statements in the file but they didn't they weren't allowed to give it that day and i understand that they said well you could do it another time but bottom line is after all of that this statement in the file the third party function reports the fact of the medical records with the brothers concerns and one statement i believe the doctor more or is that no fact that concerned they she was a failed to address the concerns and that's enough here because they'll be actually sent to claimant to a second consultation examination after the hearing that examiner just happened to be dr proces so they'll be relied on dr proces who examined the claimant twice he was the last one of the source to examine claimant he performed extensive cognitive testing he reported that claimant had intact concentration was able to understand questions and perform tasks and he found that the claimant could perform simple tasks and make simple work related decisions and he had the benefit of reviewing not only his previous examination but he had the diagnostic records as well as the examination from dr kay which and that in addition to the fact that claimant received a perfect score on a mental status examination that was or germane reason for the elegy to discount the late witness statement was a thirty thirty test that's correct and thirty means a perfect score what about the clear and convincing reasons for finding the dallam's testimony was less than fully credible what are those i mean it seems to me there's routine language there could be cited every dime but i don't find anything really clear and convincing could you help us again gail jay provided specific reasons for finding claimant not fully credible or if you turn to page it's twenty eight of the administrative record in fifty one of the excerpts of record ok the the third paragraph from the bottom ok after further consideration that starts with the claimant further testified all right ok so here the ail j begins discussing the claimants alleged mental testimony and she notes the claimant testify as to problems with processing information problems with memory if there is a disconnect when he goes to complete tasks and in that same paragraph fails they also discusses the claimant was able to watch t most of the day and followed story lines and then the next paragraph she discusses that at the hearing she observed him to be able to recall a vents and detail of events in great detail and this discussion is directly related to the claim it's allegations because he's testifying to problems with memory problems with concentration and so the ail j's discussion here is directly related to that and she's finding that the activities the hearing observations that these are two pieces that she's finding don't support the credibility finding and then she goes on in the next page the third paragraph in the bottom she discusses she says the crux of this case involves claimants alleged mental impairment and here she's really enter a ding that the issue here the next page which is fifty two of the excerpts of record and twenty nine of the administrative record and in the third paragraph from the top she says the crux of this case involves the claimants alleged mental limitations and this is based on the claimants hearing testimony because when she asked him why he can't work he talks about the problems of memory in completing tasks so here she is reiterating that this is the main issue and she goes on to discuss that there is mild only mild to moderate diagnostic tests and then she goes on to discuss dr proce findings and she gives great weight to dr proces findings and dr proces opined that the claimant did not have a substantial mental impairment and that he could perform simple tasks t opinion the activities and she also does on the following page on page fifty three of the excerpts of record and page thirty of the administrative record she she goes back to the activities at the end of the second paragraph from the bottom and she states that the claimants testimony as to his activities of daily living suggest that he remain capable of performing simple repetitive tasks with the ability to maintain the concentration to perform them and so he or she is crediting his testimony that he could perform these activities and finding that these activities he's testified to such as driving are consistent with the finding i guess my biggest problem with all of this is usually when i see and they'll jay who does not find the testimony fully credible i usually find some place where the l a identifies what part of the claimants testimony is credible and which is not credible and why and i don't know whether i quite found it here that's why i keep asking you about this and so i'm saying to myself did the l j specifically identify what parts of the testimony were credible or not credible i don't know that they did so in that is there a way to find harmless error for failing to give that kind of determination i mean what i'm s finding that he could perform simple tasks is supported by substantial evidence in the record and she goes through and identifies all of those reasons here and this court has held that if dale davis has been supported by substantial evidence that it won't second guess the a g s decision and here we have an l j who had two examinations from psychologists in the record after the hearing since claimant back for an additional complicated examination so fully attempting to develop the record and consider a claimant's allegation and if you look at the decision going through and weighing the evidence and finding that given that dr proces deserves the greatest weight because he performed this extensive cognitive testing twice they able to review the diagnostic records and twice gave an opinion that claimant could perform simple task and make simple work related decisions songs here is that in this case the hearing actually went much longer than a typical administrative hearing it was well over an hour and so the algae had been trying to help the claimants attorney pose questions to the vocational expert and it appears she just ran out of time and so in this instance she did what was appropriate and she offered a supplemental hearing and that would provide a traditional opportunity of her to provide witnesses but i guess the main issue is did she consider the complaints the limitations that were being alleged and she did and this case consider those limitations because the brothers concerns about performing simple tasks being able to concentrate having adequate memory says additional can be provided by very and then the attorneys as i don't think i want to provide any you know in terms of statement i think that the written statements  j ruled that we won't hear any witness testimony i didn't argue with her after she she ruled that she's not a judge so when she makes a ruling on something that she's asking you for argument on  hearing i don't know what the government's talking about there being an opportunity for supplemental hearing the judge said we're out of time and didn't  know what happened was there was a second report from dr prose a that came out and with that there was a standard proffer letter that came with that and i  responded with a letter to that saying that dr prophecies report should have been thrown out and then she ruled at that point she never offered any further hearing and no time did she offer to hear any further witness testimony she didn't ask me if i thought the witness was there i told her at the beginning that i wanted that witness to testify and she said we're out of time no witness but at that point at that point she had the opportunity to give another written statement that's right and it looks like that was rejected by you that's right and i rejected that i thought that the live testimony was what was important the written testimony was was extensive in the record already at that point and i think it was too bad that she didn't hear it i think it would have made a difference because the brothers you know give a very different picture of that and