ago this case is gone for an excruciating long time the case went to district court once and there was a stipulated remain and because there were all whole bunch of errors in the decision and the government agreed to do overtime went back to the same judge the same male j then prior to the second hearing there were seven hundred pages of additional medical records mostly from the v a which is where she gets her medical care and at her hearing she testified that she still is spending ninety percent of her time in the bedroom four days a week where she doesn't even get out of bed she's got a combination here there's a depression there is a pain disorder she's on pain medication she's got a very dysfunctional life anyway after looking at all the new evidence the l j wrote a decision that had exactly the same residual functional capacity assessment now that's not reversible error here but it's interesting because all that new evidence didn't changes my mind one bit so i'm not like to focus on the errors that he made the second time which were the ones he made the first time as well there was an examining psychiatry's who evaluated back at the request of social security in march of two thousand and seven shamim niche od and dr jog found that difficulty working on a consistent basis being able to maintain regular attendance being able to complete a normal work day work week secondary to her underlying symptoms of depression that's what he wrote in the body of  psychiatric stuff her and here's the important part he said her that significant chronic pain complaint secondary to a chronic medical illness says this would be the most significant barrier for her to engage in employment in the future  and that it was unlikely she would be able to deal with the usual stress encountered in a competitive workplace secondary to her medical complaint that she has during this disability evaluation unlikely to be able to compete in a competitive workplace animal paeans about pain can be caused by physical problems it can be caused by mental problems mental problems can make physical pain problems worse and urgent is physical or mental if the claim is that that pain is causing me to to respond not to do were that within the problems of a psychiatrist i believe so no i think that's and the thing is in this case the l j was not clear what is her diagnosis he's supposed to you know there's got to be a medically but the doctors i mean this is a very frustrating set of medical records read because the because the doctors just couldn't figure out what the origins of the pain was i mean she was she clearly was telling them and she was in extreme pain on occasion  but nobody seemed to be able to pinpoint it to anything there's a valid diagnosis of fibromyalgia from before while she was still working from before she even it stopped working and so she has been diagnosed with fibromyalgia but then there are also thinking maybe it's poly author algea i'm there's just there were three or four all turn to diagnoses and the a l j actually had to an interesting thing i've seen this done before where he said i'm going to find she has a medically determin of a or b or c or d and i'm going to find that that combination that your see you don't know which one it is is a severe impairment meaning it more than has more than basic it affects her ability to perform basic work activities so that's what he says in step two but you get down to the residual functional capacity assessment and he and in the analysis of bax testimony and he says i reject her testimony about the pain she's experiencing because there is is and say now they're they're not there they don't exist i'm going to reject her description of her pain because those diagnoses aren't really there that's what he did here now in addition to it rejecting jobs opinion there was a non examiner dr peterson who had reviewed dr new jobs evaluation this is way back when this is probably in two thousand and seven and she wrote that back here's a quote may have some difficulty sustaining a normal for a normal forty work week secondary to underlying symptoms of depression so that's what the non examiner said well the l j rejected that well but the her opinion you know it's interesting because the evidence is it's a big file and as you go through over time there's more and more evidence from treating psychologist to dr david another  psychologist dr marino that noted that she was having all sorts of problems with her thinking i had discussed all these in my brief i'm not going to repeat them here so the ale j basically  she couldn't calculate serial sevens she was unable to remember more than three digits four and one backward that's very significant cognitive good problem so the reason they all just reasons for  non examining opinions in this case there was not a christie mcdougall there was not a anon physician who filled out the form but we have two doctors that basically looked at the file and said that she's ok you know th they didn't think she was that limited but they never reviewed any records since march of two thousand and seven this file goes right up through you know her did it last insured was december two thousand and eleven so there's four almost four years of records part of the problem that your client seems to have with the is is this problem of not being able to tie the pain to anything anything specific so the l j says ok it's a it's a b c or d because nobody's ever ever able to really tie it down to anything in particular and then the ale jay finds that your client is not completely credible so you at the very beginning of your argument begin with the idea that she spends ninety percent of her time in bed and yet there's evidence of her spending time you know hours on out on the out on the beach so much so that she has to go in and get a sunburn treated by a doctor but she goes to yoga on thursdays but she participates in the church choir she's got kids to care for all of those activities are inconsistent the idea that she's spending ninety percent of her time in bed because she's got so much pain that she can't take it so it's a fair question this is we're looking at a period of the relevant period that we're looking at here is i think it's four years about four seven eight nine ten there's a five years a five year period of the course of five years it's not that she never did anything if the if you have to look at the overall once again waxing when she's she's good never do anything for five years but there were large periods of time where she did not get out of bed because she was too depressed to do anything she'd managed to get out of bed to go to her medical appointments with her mental health care bess the one of the things is you know we have to look are those consistent with the medical evidence here the ail jay for example rejected her testimony about her pain limitations that record that she thinks are caused by fibromyalgia but whatever chronic pain she's having all this pain because imaging studies that don't can't detect something don't detect it and she does have a legitimate diagnosis of fibromyalgia be based on the trigger points which can detect it and the widespread pain really not much of an objective test for my overuse that there is and but it's not x rays and it's not m r i is what they've have is trigger point tests they've got a lot of it is an observational and over the course of time seeing  person you know they have widespread pain this is there's a long list and there's social security rulings that discuss the criteria and that basically adopt the medical criteria for how do you dynas fibromyalgia but that's been a b on this record but just i'm curious you're saying that now there isn't an objective definitive yes there will there is my curiosity in the record but there is i mean there is for example the thing is the trigger points some there once again they're not it's not as clear cut as you know take an m r i and look there's the herniated disc you know it's not something you can just see that clearly so it is more of an r it's somewhat more of an art you're right i got it but the thing is it's not even an issue here they all she found that she had the severe impairment fibromyalgia the see the oh here we go the you also claim that there was no diagnosis of a chronic pain syndrome well there were two psychologists at the v a dr lee and dr hawley who both diagnosed back with a chronic pain syndrome i think that was back in two thousand and seven the also  rejected her testimony because she said she quit work in part because you want to be a full time mom but that wasn't the only reason she'd been that was one of the things that he said she wanted to pursue childcare whereas the record shows that she had reached a point where she was so overwhelmed by her pain that she couldn't she just couldn't function in her job anymore the l g points to the fact that she did some community service while she had a good one hundred thirty four hours of community service over the course of a three to four year period that's not the equivalent of work throughout this entire time in this record she was taking methadone which causes side effects including trouble remembering things and the evidence in the file from from her treating psychologist is that she does as she comes in there she is or she's in a mental fog they also erred here by improperly rejecting lay evidence all of which was independent observations which were consistent with their testimony it please the court the commissioner also requests that you affirm the district court's judgment in this case because the ale g s decision is again supported by substantial evidence the ael j did not reject the opinions of dr new job or dr peterson with reject with respect to bax mental impairments the ael j gave significant weight to those opinions so as for dr  examined ms back that doctor said that there were no the her that her mental impairments cause no significant barriers to employment and i think it's important to go to say that hurt our ongoing pain and medical issues may cause some difficulty in this regard so first of all he he says that i'm sorry i don't know what the gender of this person is but i'll refer to dr new  a he he said that she may have some difficulty but and then concludes that there are no significant psychiatric barriers that would prevent her from working at this time with regard to her physical impairments he says it's unlikely that she would be able to deal with a competitive workplace secondary to her medical complaints so that's not based on my examinations of her i may have some difficulty working on a consistent basis which seems like kind of a prerequisite for working well but then later on he says that that's based on her medical complaints her complaints about pain so the l j said well you're making th what she told you but she's not particularly credible because throughout this record she's doing things like yoga caring for her three children volunteering at her church walking her dog doing yard work which there's a quote in the record that regular exercise has been amazingly helpful for her pain that's at twelve thirty six at the yogo she was suggested to her by her medical writer i confess i don't recall exactly what it was but i do know and i can quote that regular exercise whether it's yoga or some other form of exercise has been amazingly helpful for pain so it's just not the case well sort of suggested to her as no she reported that that regular exercise was helpful for her and when you look at medical provider providers suggest that they did suggest it and then when she did it she found it helpful so when you look at that in the record you just can't say that this is a person who is essentially bedridden which is what she testified at the hearing so the ael j is is looking at the record as a whole looking contrasting that record with mrs bax complaints and then saying well if a doctor is going to rely on her complaints about her medical conditions i can't give great weight to that assessment because she's not particularly credible in describing the limiting effects of her pain similarly dr peterson adopted dr jazz assessment with respect to the mental impairments and although she adopting that assessment  although she may have some unspecified difficulties that the ultimate conclusion was that there were no significant psychiatric barriers to employment for ms back so the ail jay also used this analysis of the record which was supported by substantial evidence to discount the lay witness statements which she was permitted to do those reasons being supported by substantial unless there are any specific questions i think the court for your time it's interesting when a person complies with medical advice to exercise and do yoga and actually helps them that's supposed to do that's what they're supposed to be doing and that's not a reason to reject the opinions of the medical providers or reject her description of the symptoms she continued to experience despite the fact that she was doing better because she was doing what they were telling her to do certainly she hadn't done it it would have could have said she's not credible because she wasn't complying with  recommendation but she did comply she did what she could to get better because she wants to get better the doctrine is shah did not just rely on her description of her complaints when he said that she would not be able to work because primarily because of the chronic pain he had also really you two reports one of them was from doctor side that's the the rheumatologist who had diagnose and the others dr merrifield not america field had similar he was a treating physician who described the problems she was having with her chronic pain which dr mary feel believe had a significant psychological yeah and that's why cause pain and you've got in zion depression and those can cause pain we don't know why exactly which pain is causing what is from which impairment here but what we do know is that back is experiencing pain and her doctors the physicians who've examined her have never questioned that and she's on pain medication for it and it's there's no reason there's no convincing reason in this record to reject her description of her symptoms thank you thank you thank you council for your arguments very helpful but this was a fat file