morning may please the court my name is linda ziskin i'm of attorneys for the appellant merryweather franklin i would like to reserve if possible two minutes for rebuttal please when i was much as possible thank you i'd like to clarify first that the argument today is solely regarding mental issues and that was in the briefing as well and i'd like to jump right into the dispositive issue here and that is that the administrative law judge got it wrong when he completely threw out the opinion of the consultative psychologist in this case that's doctors zipper lee he also erred in the way he rejected the opinion of the treating psychologist or psychiatrist rather dr seaver so let's talk about doctors it really first briefly first of all the i like the second reason to start with the a l j said that the opinion was inconsistent with the record what record is he talking about is he talking about the record where there's nothing in there but the opinion of doctors it really the opinion of dr seaver the testimony of the appellant's mother and her in the appellants own statements in testimony that's the record so let's assume you're right let's assume that under our case law the a r j did not give sufficient reasons for rejecting that doctor's opinion there was stuff in rs are the state agency d d s non examining reviewers well they aren't even though they're not examining reviewers they're they're not substantial evidence according to lester and a lot but it's but it's your it's your burden to demonstrate the disability right correct the i can look at this record and say that the doctor that the ail jay was absolutely compelled to accept the reports from your he is compelled to not legally adequate to simply assert that this opinion is inconsistent with the record referring globally and vaguely to a record that really doesn't contain any conflicting medical evidence and is not inconsistent with the opinion of that doctor this is the underlying decision by the franklin wasn't credible and they hand rejecting the doctors on the basis that they the true but it's not because it did the l j earlier in its credibility determination i believe so yes i judge a q tip because that credibility has nothing to do with the doctor sufficient to to show that the the claimant was not credible well it depends on the reasons i mean the reasons that you gave and if you look at the u s district court decision and the and the  brief little minor inconsistency inconsistency as it were latched upon don't really have a bearing on credibility for example the government asserts that she stated that she couldn't didn't know how to drive couldn't drive and then she said later that she could drive or she said that she didn't know who the president was well if you look at doctors it really is mental status examination she clearly did say that she can drive but doesn't not that she can't drive there's no inconsistency there and it's just flatly wrong she does she said i know who the president is i know when my birthday is so those are factual errors that the district court accepted and i must ask this court not to affirm that district court opinion which is based on misrepresentations by the government as to what she really concern that your client was fabricating are exaggerating symptoms to get benefits and they cite to the fact that there was a reference in the hospitalization records that they question that and there was another reference to the fact that she had been identified so i guess i'll have to go back to work and a couple others is that grounds to say i'm really taking i'm looking at her subjective complaints  more skeptical eye because i see these other references that she maybe of hospitalized itself because of right well cation that's a great question because first of all those underlying statements that you're finding are credible need to be true so she didn't say at the hospital that she she or two to one of the doctors that she wanted to record she wanted a recording of the examination she said i need my records if you look at the there's just a lot of just false statements here mischaracterizations in the hospital that's very interesting i've never seen an e r doctor actually question why a mentally ill person who has been brought to the e r by her mother abuse has been cutting herself with razor blades why would he wonder why she was there and she was there on a fifty one fifty which is california welfare and institutions code for seventy two hour hold but whether those doctors are right or not is is the answer very relevant i mean they made those statements in the record i think there are a lot of them the government's relying on that well they'd be able to a relied on them so so the ael jay said we have doctors who saw her who raise a question about whether her reason for seeking medical treatment is to enhance her ability to get disability and so the ael j took that into account and there was evidence on the record supporting that right was based on i need you to look at the context to judge a coup because an emergency room doctor makes a statement like that it makes no sense but here to put it in the record we're not the trier of fact fifty one fifty forms in the record to your honor well that yes because we don't know how much weight some weight is and we don't know which parts of these are cases require him to say i give it forty percent weight three i mean i don't understand what you can say some way and then explain what parts he rejects and what that doesn't he say there is a function capacity was not his did that he came up with is not entirely inconsistent with dr sievers opinions so he says i i tried to come up with something that wasn't inconsistent with sievers opinions never says what parts are consistent what parts are inconsistent and the ala has to give us his rationale because otherwise there's nothing for reviewing court to review b big one that i want to call to your attention is the stress intolerance because again the district court got it wrong because they accepted the false statement that was advanced by the government that the ail j did consider stress and tolerance no he didn't he did not he does not mention it he did not consider it the stress and tarrance alone when it's as simple repetition repetitive work with no public interaction and so he didn't specifically say stress but that seems to at least arguably go to that issue well arguably and i would argue that it does not because stress is a subjective thing that each worker experiences and if you're hypo which also which seemed not clearly supported by the record so for one of the the limitations is a reduction in output or in percentage of the day by twenty to thirty percent is there support in the record for that i believe so that's just the way that the administrative level attorney quantified some of the some of the limitations that were danced by doctors a brilliancy her that was pulled the twenty to thirty percent was just pulled out of the air was there some no it's a reasonable way to quantify when when when someone a doctor says that this that this patient will have a difficult time in canning regular work attendance and it would be not possible for her as the psychiatric condition would interrupt her work day so the initiative level attorney is trying to put that into quantifiable terms for the ve you can't tell if she's going to miss some part of the workday we're not sure how much of each can't handle that of you needs a hypo i would say that he chose thirty percent because thirty percent and so security law up to about thirty percent is one third of the work and that is occasional that's defined as occasional did you want to save some time for me i certainly do thank you your honor court for the acting commissioner of social security the only evidence in this record that supports poland's claim of disability and in fact that supports greater functional limitations elegy found depends on the credibility of franklin's allegations substantial evidence supports the elegies finding that the claimants testimony was not credible can i just ask whether the l j well that the l j must specify which testimony she finds not credible and then provide clear and convincing reasons supported by evidence in the record to support that credibility determination so the l j said general a didn't find g is talking about sort of credibility broadly in the decision but the l j after saying the claims testimony is not credible goes into a bit of a discussion of what the claimants testimony was there is a paragraph or the l g discusses what the claimants testimony was what her mother's testimony was but doesn't say any of that is not credible so are you saying that so there's the boilerplate paragraph about it's not credible to the extent they are inconsistent with the above residual function capacity assessment tricolor that that's insufficient for a credibility determination and all that follows below that is supporting the adverse credibility determination the information above that as factual recitation of what's in the record so how how is that not a failure to comply with the requirement of brown and while there i would submit the requirement there is not so much that the a l j needs to do a sort of line item credibility analysis has to go through everything the claimant says and say and say well this testimony is credible for this reason this testimony is not credible for this reason it's essentially the elegy needs to make specific credibility finding so tell me tell me why the can i'm looking now at page twenty one page thirty eight in the record and judge says i must make a finding under credibility the statements based on a consideration of the entire record then he goes through what she says and then says objective medical evidence is not supportive so find a finding of disability but that's not a finding of lack of credibility on her part so where else does he discuss the inconsistent with her testimony and therefore i find her not credible he just says the medical evidence doesn't support a finding of disability so maybe you can address the paragraph on page forty of the record where after he has his  boilerplate it's not credible then he goes into some of his reasons at the claimant has not received the type of medical treatment i would expect the record it doesn't contain any opinions can you go through that because none of those seem to be particularly  go directly to credibility under our case law so maybe you can explain that certainly or so i think that paragraph that's the last one page forty or page twenty three of the transcript all in all the claim is not generally receive the type of medical treatment one would expect for a totally disabled individual that's that's one of the reasons the l g is talking about the l g it's certainly discussing the claimant's treatment what treatment she's received and that is yeah but i mean that is it's in the regulations where it says when the a l j considers the credibility of the claimants symptom testimony one of the things the a l j looks at is the nature of treatment the individual receives the effectiveness of that treatment and that's something that  required to look at and it comes it goes to credibility because the issue there becomes well this claimant says that she's she's disabled she has mental limitations or physical limitations whatever might be that causes her to be incapable of working so the question is will sievers statement based on claimant subjective reports isn't entirely circular they say the claimant is incredible because her her complaints aren't based on any medical records in the medical records i just support them are credible because they're based on the claimants non credible testimony i mean that's that's entirely circular i think your honor in this case it's really not circular because the primary issue that we're talking about is the claimants mental says she didn't get the kind of treatment one would expect somebody with a serious mental impairment to have there's no opinions in the record that she has a serious mental impairment except for dr sievers and they're based entirely on her statements to him but doesn't this missing something which says in those statements are not credible metra the fact that she didn't receive the treatment may mean that the doctors didn't give her the treatment doesn't mean she's not credible and dr  the l g they're after talks about the evidence and gives some indications about some things in that record and in there the l t is talking be able to talk about her credibility that's sort of what that whole section is the a goes through the factual record but the only thing i saw that specifically comments on the facts that the alj is reciting is that claim and psychological impairments would impose negligible limitations if she were to stop the use of marijuana which i take it was medical marijuana  claimant continues the record it hits a continued marijuana use deprives her of motivation to comply that's that's consistent with what the claimant testified to at the hearing when the a l j asked about the medical marijuana and with dr sievers own treatment record i agree but why does that impair her credibility so you're going to be it may mean it may mean actually a o j concluded that her impairments weren't as great as she claimed that's a separate issue if you if you if you regulate your marijuana use appropriately you will be as impaired as you claim dr seaver seems to say the same thing but why does that mean she's not credible it's because it's a noncompliance issue your honor because it goes back to what i was talking about in the regulations where the a l j is supposed to consider the nature of the treatment  supposed to consider what freeman the claimant receives and what it daws and when the claimant was compliant with her treatment for mental health conditions when she was doing what dr seaver said which was taking her medications but not smoking marijuana she registered improvement she showed that she was claimant's testimony is wells and her mother stands to show improvement in the claimant's conditions in two thousand so the knowledge is that their testimony supports improvement our case although it says improvement is not enough to mean that you're not disabled and as judge her which point out it doesn't really go to credibility it just goes to how disabled she was could you also address the opposing counsel cites our case our decision ryan and then got on him which relies on ryan which says you cannot discount a psychologist a mental health provider is testimony for relying on subjective complaints when they're when the psychologist impairment why doesn't ryan also make the ale j s rejection of honor as to why and i think the issue there is sort of is as you mentioned twofold for the ryan decision it's it says that an l g can't reject medical sources opinion for relying on subjective complaints especially if if the doctor and self doesn't question those complaints and then also if the doctor points to other evidence in the record the second part of that is i think the important part because in the doctor's real in the special planes of course the doctor wasn't rejecting them so i think that's sort of that's they're sort of a bit of an issue there that's not really the the meat of that case i think the main thing is the doctor is actually bringing up other objective findings and here we don't really have that with doctors differently she examine the claimant but the report that she gives that and said well this is based on subjective complaints but that's a quote but let's go back it's not and that's my problem dr z probably not only says i heard your subjective complaints and i have a diagnosis doctors it probably says i'm looking at you say you know i can't say it's disabled but they say she has severe mental issues and if the only basis is for rejecting that is that they relied on her subjective complaints they don't write they  in at least in part they don't and under ryan they don't i would say that they do your honor i think that i think that brian is distinguishable from this case i maintain that the thomas said the decision is a more closer analogues this case with respect t reporting and i find her not credible why do you find you're not credible the doctors didn't give her the kind of treatment they would have given her that she had these had she had these symptoms and i'm not sure that that seems to me to be as you suggested sort of a circular set of reasoning and i think that i mean there's more to that's the crux of the credibility than that i think there is the issue of the objective evidence which is a factor under the regulations to consider there's the claimants daily activities that the a l j talks about in the credibility context there's there's the issue of treatment and there's the issue throughout the record that's kind of peppered throughout here where the a l j talks about evidence of the claimant was admitted to the hospital for vague reasons she might have had ulterior motives she said that she wasn't going to get treatment let's go back to that statement you just read to judge her it's on page forty all in all the claimant has not generally received the type of medical treatment one would expect for a totally disabled individual we've all seen that little bit of boilerplate in other decisions what does it mean what do you expect what kind of treatment is lacking here she's got mental disability she's seeing a psychiatrist regularly she's taking all manner of psychotropic medications she's doing what she can do now it's awful is that decision for the l j i mean that the statement is unexplained but i don't think it's our job to evaluate whether she was receiving the right well yeah but i would like to see a reason and there's no reason at all and all not generally receive the type of medical treatment does he want surgery what does he expect let's go back to is there any testimony in this record about the medical treatment one would expect somebody with her disability to get not really because what we see here as i thought that's what they're there exact non examining experts sort of said which is that if she really had these disabilities and saw doctors they would prescribe differen reason he's looking out of circuit to persuade you is because we have nothing in the circuit that addresses this this is how psychologists work this was medically acceptable as far as the psychologists qualifications and she's been vetted by d d s they sent other people to her so the problem the conundrum here is you know when when the l j likes the result then they incorporate it when they don't like the result as here then they find ways they bend over backwards to find