dagon was raped by a family friend repeatedly beginning at age twelve until the person moved away so lessen the burden on his already struggling mother he kept the childhood sexual abuse as a what is that there are different kinds of personality disorders and in the psychiatric field they classify them based on different characteristics the cluster a particularly i explained elsewhere he has only recently begun to think about how this trauma influenced his life and though he's angry and hurt he still would never tell his mother he has been homeless on the streets of berkeley for the last seven years when mr dagon went before that and l j to talk about this trauma and this vulnerability and how it impacted his life ultimately resulting in an inability basis of his mental limitations yes that's correct or not the foot pain no yes ok so maybe ok where and why are you telling us that just just to show that he was found credible and disabled at a later date basically three aside the foot pain issue for the moment i don't know how much you intend to say about that but i would think your time would be more productively spent focused on finding tends to both the credibility and the weight of the medical evidence yes yes that's certainly the bulk of my until approximately twenty thirteen and from that time to the present he has stayed in treatment consistently and his symptoms of depression and anxiety and borderline personality have been consistently documented since that time he can i ask you you say he was unable because of his mental limitations or because what what happened other than maybe his getting in touch with your  you know your group but what caused him to suddenly after all those years of suffering to seek treatment yes basically mr de gette and i met when he walked through our doors and i informed him that he could try to access you know treatment he knew you know he was very skeptical of the medical system when i met him and what's you know pretty thoroughly developed is this question of well our position is that he did not access the treatment earlier because of his precisely because of the mental impairment because of the borderline personality which includes very poor insight and judgment most people with borderline personality do not realize that they have a severe mental illness that needs treatment and so they often don't access treatment and also as evidenced by the fact that you know he did not share the childhood sexual abuse with his own mother you know he was not likely to share those kinds of very personal details with a complete stranger when he already has skepticism around the medical industry and and the borderline and personality traits certainly make it difficult for him to trust people that the sexual abuse also caused him to be and he stated that in a number of his reports that he has difficulty trusting people in general help help me because you were talking about which three years  twenty twelve and twenty three hundred fifteen yes and the last time that he worked as a janitor was when one thousand nine hundred eight where he's been unemployed for twenty years he has not worked at all since then and he describes does he not his  pattern of behavior after nine hundred ninety eight is i guess chilling out but also engaging in bike writing acts reading and did a lot of reading and music he was a musician and engage in all of those activities after nine hundred ninety eight when he sold his house and decided to live on the income from that house right so he made some he made he did own a house at the time he sold it and left off the proceeds until those ran out and as he testified at the first sale jay hearing also after those funds ran out he became homeless again he stayed with i believe an uncle for some time and said i can ask you a question about the the fundamental timing here so he begins at your urging to see a therapist he begins then taking zoloft he responds well then he goes off zoloft and then he sees doctor as i understand it dr franklin and dr franklin does her evaluation which suggests that he's disabled when he's off zoloft and then also dr frankel does her observation in march of two thousand and fourteen when he's off or just getting back on to solo off and then thereafter he gets on zoloft and apparently at least the progress notes from dr franklin suggest he's doing much better is that is that correct i don't think entirely your honor then the examining psychologist is dr leslie franklin and franklin is i'm not sure which one this was who treated him while he was on the zoloft he's generally stayed on his medications there have been some times where due to homelessness or other circumstances he either couldn't afford the medication or it was stolen from him or you know other situations being that he's living on the street but generally has been overwhelmingly compliant with his treatment or just dr franklin was the psychiatrist who was the treating psychiatrist ok dr frankel is i'm sorry frank yes yes and the treating psychiatry is what i want to point out there is that she did she had been seeing him from twenty thirteen and correct i am not sure about the facts of pretty sure he was still on it but my point being that that they that dr frankel had a longitudinal treating relationship with him that she had been seeing him regularly over time so her opinion is really a synopsis of his entire condition not just an opinion of how he's doing on one particular day but a holistic view of his mental condition given the seven month treatment history but the progress fact those progress notes are more consistent with the evaluations that were done by the state appointed therapist so your honor i do disagree with that yes and that is because the cons examiner upon which the l j relied on for him for the the basis of his decision is dr peter frank who actually during his during his evaluation made a number of findings including that he observed objectively that mr dagon had very poor poor concentration a low frustration tolerance and was you know flustered during the testing and that is consistent with d franklin's observations that he actually cried during the evaluation in frustration because of having to do these tasks and tests and so dr peter franks conclusion at the end of that examination and i believe it was twenty twelve was that he was completely unimpaired in the ability to complete a work day and work week based on his psychological impairments and that he had no no impairment in concentration and you know and so that was the finding that dr preacher frank made after making the objective observations that he in fact did have poor concentration and a very low frustration tolerance likely leading to a de compensation and a work setting under any amount of increase stress so so so i don't think that dr printed peter franks i think that dr peter frank's opinion is actually quite inconsistent and that dr frankel's treating opinion is more consistent because her findings and documentation of symptoms over a period of time now it's been five years where she's been seeing these symptoms and continued severe impairments and so i do think that dr frankel and dr franklin's opinions are consistent with each other and also supported by the objective findings of the other examiners and the d d s state agency medical consultants i'm i'm a little i was a little fused by this as to  basis that you think the l g a should have found that he was disabled whether it was because of the foot pain whether it was because of the mental conditions or both the foot pain the foot situation standing alone talking for myself doesn't appear to be disabled sure so what is the critical finding your of the ale jay that you think is is not supported by which are the depression anxiety and personality disorder listings so that we can even you know include the physical impairments in the analysis to make an equal a listing but even just on the mental impairments frankel's report yes exactly that is the crux of our of our argument and that's because dr frankel really knows mr dagon more than any of the other examiners do and so her opinion you know was should have been merited more weight it's normally an uncomforting did treating source opinion would be given controlling weight and if it is contradicted the l j should have provided specific legitimate reasons for discounting  how did that come about that when he was referred from social security that was a consultation examination paid for by social security ok and so in that evaluation was if i remember was september of twenty twelve yes he didn't start seeking treatment until june you said of twenty thirteen yes a lot of yeah why why the delay there you know again that was well i think it was actually his it was his hesitation he was very skeptical again of the medical industry it took me some time of you know kind of telling him well you know explaining to him what it would be like and how it might help him and you know he was very skeptical he did not want to go see doctors so at the time of the dr peter frank evaluation your client wasn't on any and one for about fourteen years apparently without any true without working without any treatment until he applied for disability benefits in two thousand and twelve after he applied in two thousand and twelve when he first saw doctors dr peter frank the consul tate of examining psychologist and dr louis who was the examining internal medicine and she was an internist specialist examined mr bacon and found some abnormalities but indicative about the second the second doctor did not in fact examined him right she just reviewed the report of dr peter frank am i getting that right no your honor dr peter frankenstein they both examined the claim dr peter frank examined psychologically or mentally and dr lewis was for the non examining doctors who also reviewed dr peter frank's opinion and then on the treatment notes from dr frankel and from a licensed clinical social worker kate bartholomew so the elegies findings on about the claimants mental status and mental functioning are based on those those three opinions and then the treatment right but i'm saying in terms of what supports the commissioner's position here it really comes down to dr peter frank's evaluation because those other two doctor you mentioned didn't do anything other than as i think your honor noted earlier when the claimant saw dr peter frank he wasn't taking any medication he wasn't in any sort of treatment and the record shows that once he got into treatment and started taking medication his mental functioning and symptoms actually improve know yeah i mean yes improved but not to the point where he could work and we know that because his treating physician so opined so again i mean i don't i think it's very hard for us sitting here to allow ale j s to basically give no weight to the treating doctor's opinions and give put basically all their weight on this examining person unless we look at the examining person's findings and conclude that they're really solid and that there's something suspicious or or deficient about the treating physicians findings and here i'd like you to focus on dr peter franks evaluation because i frankly i read through the first four and a half pages and it sounds to me like boy this person is not going to be able to work and then all of a sudden there's a conclusion unimpaired paired so i actually found the ultimate conclusions that dr peter frank reached to be inconsistent with the objective findings of his  own evaluation so i mean help me understand when i look at these pages what am i missing sure her memory poor concentration poor low tolerance for frustration on and on and then the conclusion is all but he could he could work a whole day just fine and i don't understand how those two those things can be judged so so the first point i want to make your honor is that respectfully dr peter frank is a psychologist he is an acceptable medical source and he understands when he's  opinion on the examination and as this court's decision in ton of pet universes alter and other cases have stated a consultation of examiners opinion standing alone can be substantial evidence so that's what so that's we have from dr peter frank the important thing to remember again is that he's a doctor he's an acceptable medical source and when he examines the claim and says here's my conclusion he has poor concentration and or your poor memory so he's mildly impaired in this category and he makes findings of that sort those are his findings based on his own eggs on his examination that's his interpretation of it and i think it's i'm saying the objective findings he makes don't seem to line up with his conclusion that this person is perfectly unimpaired and can go psychologists but at any rate their state agency experts they looked at the same examination report the same core findings that are of that your honour's raise concern with and they said based on this examination we can mood that this claimant can do simple unskilled work with limited interactions with other people and let's remember that these state agency doctors are based on the regulations they're experts in social security disability programs and social disarray security disability evaluation so yes but hold on but so dr franklin i don't i mean it just you want us to basically say these doctors are better than these other doctors because dr franklin does the exact same thing that dr peter frank does right this one time one  off valuation and comes to the exact opposite conclusion so we have that and i don't understand why they all j is entitled to give more weight to dr peter franklin to dr franklin but even if it were a tie then you have dr franco who actually has the best in the best position when you agree to give an opinion and she to think she's right dr jean yes yes she too says that no i mean given all of this person's limitations there is no way that they could hold down a regular job  because a lot of it just dealing with can't can't deal with frustration and you know you can't interact with people in a normal in a normal way so i let's let's talk about dr frankel's opinion then your honor because i would submit respectfully that she actually doesn't make the findings that your honor was was indicating about just there was no way this person could work on pages four fifty two to four fifty three all dr frankel does a circle a few boxes make a few check marks here and there and the  conclusion check the box form it's not explained and per the commissioner's regulations and this court's case law numerous cases have said that if a tree even a treating source who might ordinarily get greater weight if they don't explain their opinion if all they're doing is checking boxes then it's not entitle to any significant weight in the algae can reject it and in this case in this case it's especially compelling that when you look at dr frank tells treatment notes and you look at clint license clinical social worker b us treatment notes you see that there aren't this love the level of disabling abnormalities the mental interesting about your approach i've never seen this before where you actually see a treating physician right the opinion saying the person is of the same old but then you say ignore that that's doesn't that's inconsistent with her progress in those and then you actually rely upon the progress notes the say that because of treatment that he received the zoloft in particular all of a sudden the disability the mental disability that he had were mollified if not  disappeared so your position is as i understand it these progress notes a stablish your particular position consistent with dr peter frank is that is that correct that's exactly right your honor that someone who is disabled or are those notes always consistent with somebody who has the potential of becoming you know rather timidly employable so i would note i would note your honor that really all of the treatment notes from dr frank licensed clinical social worker befallen you are generally consistent with the l g s finding that the claimant could perform a range of simple work with with no public contact but one important thing i'd also point out is that before the claimants taking is if there's a difference between before the claim takes medication and after he starts taking medication that's a relevant factor that the algae can and must rely on and this court and where versus commissioner stated that an impairment that can be controlled  treatment including medication can't be disabling so even if this is a claim in to and period a period as a stretch sessions on noted earlier a period where he's not taking zoloft might have evaluations from dr frankel and dr franklin that could suggest significantly limiting symptoms and impairments if the claimants going to if those are going to resolve and improve with treatment and the claimant isn't entitle to benefits be it if he said not able to maintain consistently ensnared occasion which we've all known people who had that difficult isn't that really part of what's on your lines no your honor this record doesn't support that so this record shows that again for about fourteen years so the claim and test of the claimant alleged that he stopped work because of disability he testified at the hearing even though he amended his alleged onset date he did testify at the hearing i haven't been able to work full time since the ninety's he won fourteen years without treatment and then after that period he saw again dr peter frank and dr peter frank examined him and said with the concurrence of two other experts in social security disability programs that that examination doesn't establish disabling limitations then the claimant starts taking medication zoloft is helpful he around i think it's november of two thousand and thirteen and i can get citations of the court wants to look these up but in november of two thousand and thirteen he increases his zoloft dosage because he says that's not helping quite as much he has a panic attack and then is a bit worried about it and stops taking zoloft the doctors try to get him to take a bath to get back on it and then around february of two thousand and fourteen he does get back on it's now again february twenty fourth when dr franklin sees the claim and when he's not either not taking zoloft or he's just getting back on to it and that's when dr frankel gives that opinion to the chose those significant limitations but again after the claimant starts those all off and is consistently so disability and then again dr frankel's unexplained check the box sort of two page form suggests could suggest disability but dr frankel's own treatment notes with mental status examinations often normal licensed clinical social worker bar s treatment notes again showing the same thing and both showing significant relief with the zoloft and with other medication and treatment those support the a l j is finding and this is a case where like in most social security cases there might be evidence on both vs ass true and to make findings and unsubstantial evidence review what we're looking at is those substantial evidence support the finding is it is a rational reading or interpretation of the record and in this case where you have a claimant who says he was disabled since one thousand nine hundred ninety eight doesn't have any treatment for fourteen years sees some doctors in two thousand and twelve and they find at most mild impairment then he gets into treatment and that treatment is highly effective in controlling his mental and physical symptoms but then we also have a one off examination from dr franklin that says he has these significant limitations and unexplained opinion from dr frank all suggesting similarly a high level of impairment that's a case where the l g can resolve the conflicts and resolve the any ambiguity as are issues in the record and make a finding and we have to look at is does substantial evidence support the finding is the algaes finding at least one rational interpretation of the record here that the answer to that is definitely yes if there are no further questions from the panel to submit to request the court to affirm the decision as supported by substantial evidence and free of reversible legal error thank you thank you very much let's put two minutes on the clock dagon one issue to be addressed that my opposing counsel brought up was the compliance mr de gex compliance with his prescribed treatment regimen and i want to point out another inconsistency controls his mental and physical impairments that's one reason for finding him not credible in almost the same breath the next reason is that mr dagon failed to follow his treatment regimen so i'm a little confused as to the reasoning i'm not sure how somebody can be so compliant with his treatment that he's now improving because he's taking his medications and his symptoms are getting better but yet he's also being penalized and being found not credible because he's not following his treatment roger i find those two findings extremely consistent i don't see how my current can be found not credible based on those inconsistent reasons which are not clear or convincing which is the standard when there's been no other evidence of milling going there's no other piece there's no piece of evidence at all in this in this record that that shows that my client is dishonest or  forthcoming or trying to hide information he's very honest with all of his treating providers about what's going on with him in this is why it is the significant question to me is whether is whether the o j gave adequate  to the testimony of the treating psychiatrist here and but this is a unique case because what the sensually the l j is saying is that the treating psych psychiatrist does the checkbox comes out with the general opinion but then in the successive months once he's started taking zoloft and responded positively dissolved that the progress notes suggest that his behavior is not consistent with her initial diagnosis right and so it's almost like the progress notes are being used to impair the reliability of the  determination and is there something significant in the progress notes which suggests suggest to you that even under the old taking zoloft mr deacon continues to suffer from mental the fact that she believes that there is a significant disability i believe there are ongoing you know symptoms and mental health symptoms that are disabling noted in the program which i do not have in front of me opinion was made was made when he was on the zoloft when she had been observing his behavior while it had been controlled and treated well even that he was off so a lot from november of two thousand and thirteen to february of two thousand and fourteen she did the evaluation in february of two thousand and fourteen right and so then she continued to see him over a significant period of time and it seems to me that those progress notes become extremely important because they either reaffirm or contradict her initial assessment yes but anyway what you're suggesting is there's something in the progress of those which say he continues to suffer yes and also i do want to point out again in our argument here that the the batson case was used but my opposing counsel to support and he mentioned that dr frankel's opinion was in the form of a checklist in feb twenty fourth teen but in the vaccine case they found that  they did not give weight to the opinion where it was based on the claim it's subjective complaints unsupported by the objective evidence which in this case dr frankel's conclusions are supported not only by her own objective observations and evidence but also by the the slew of testing that was performed by dr franklin that is objective psychological testing so those objective results should be included in the in the review of the entire case evidence  and again neither the l j nor the commissioner at all during the course of this briefing have pointed to a good reason why dr frankel's opinion should be completely disregarded and given no weight as