benefits it was one of one million six hundred forty eight thousand five hundred seventy earth to me thirty seven disability case reviews conducted by social security in twenty fourteen the issue in this is really and i'll try to boil this one particular fine point is whether there is a difference or a change in circumstances in her condition which they've defined burden of proof and the other is as this medical improvement is assessed how if at all do intervening new problems come into play do you have to just pretend they're not even there did they factor in somehow first of all the burden of proof on the sation case rests with the commish these cases are not hindsight they're not well we think we may have made a mistake before so we're going to correct it now the they asked to be something more once you establish or review the condition upon which the claimant was found disabled for instance the easiest thing to  to consider would be as if they met a listing and if that condition of sides and then all water meeting a listing then you would go to the other steps steps four and five and determine whether the residual functional capacity would still be worth reclusive and at that point would you take any new information and people don't remain static necessarily over a five or six year period correct i believe that's why the elder in this particular case reviewed all of the medical records from two thousand and eleven up till the time of the hearing was to establish that there wasn't anything significant in any of those because even though she had had problems with her hips and with her lumbar spine and some other improvement that's the case and we have it arise in this into instances one is the treating doctor and to whether the claimant was credible now in this particular case d dark completed a report two thousand and seven and indicated a set of findings which were ultimately incorporated into the findings of the state agency and her case was appro that happened in two thousand and seven and two thousand and eleven they decided she'd improved he soon after at the request of counsel at the time of the appeal of that cessation completed another report dated cited that should not be given weight because of three reasons lack of objective evidence but his opinion was not consistent with the evidence in the record and he wanted to help out his patient now the easiest one here is address the third doctors trying to help the claimant and it would automatically be groans then to reject treating physician statement what they want to talk for a minute about dr bulmers examination because it seemed to me as a practical matter established a policy that says that a treating doctors to receive greater weight than an examining non treating doctor because he has longitudinal history and if you look at this we have dr john hart treating her from two thousand and six through two thousand and thirteen and if you look at all of the medical records during this time frame they're all consistent now on that given day we don't know exactly what her condition was w having a good day where her back was not giving her as much problems did she take the extra oxy caught on that she'd been prescribed because the biggest change in this case was  that at the time of her surgery she was an eighty milligrams and then by the time she was found to have a medical group and she was given twenty milligrams but given five three five milligram tablets to take as needed for breakthrough pain did she take two or three of those when she went in she knew she was going to have to be physical we don't know that from this record and would have been nice if that would have been brought up in the hearing and as i've said in the briefs case and i believe that's why angstrom and they were decided where they were if the l g sees something that he thinks is an issue of credibility or needs to be addressed he should raise it at the time of the hearing and give the claimant an opportunity to respond now is there some confusion this record about whether she's got neurological deficits versus other kinds of problems there's another person right it's a neurosurgeon who looks at her  injury and in this particular case the l g character is dr stevens opinion is being that there was nothing wrong with her she was there to have an evaluation as to whether there should be additional surgery or have the hardware something going on that this isn't good but it also of us are walking along i think the reason i'm reading this your honor is basically this and you go this is always like something that might cause somebody pain and when you have hardware like this in your body you can't say conclusively that she is not having pain and that's the problem we have lots of credibility findings but there's no pain analysis and the really doesn't outline this again the only reference made to the fact that there's been an improvement the judge pointed out that dr leonard who did the surgery in madison several recovery time was going to be about a year well the surgery was in october or november of two thousand and six and she was approved in october of two thousand and seven so about eleven months later they approved her so if there was indeed a concern that she was going to have that improvement in a year why was it a wife why not consider it further and see where she was at that point in time it just doesn't make a lot of sense thank you want to save a little bit all right good morning ms shocked me a place or my name is meredith shaft and i represent the acting commissioner of social security how was commissioner acting commissioner kovan been the acting  entire tenure several years now it's at least several years yet my understanding that there's not going to be confirmation hearings anytime really all right so my initial problem with this  your concern has to do with the first question i asked mr duncan which is burden of proof if burden of proof off makes a difference in these cases where you have you know a treating physician you've got somebody with a fairly lengthy  problems you have a couple of other people you know that is reviewing physicians to one person does the one examination so if the burden of proof is on the commissioner it seems to me there's a lot to show that although perhaps she's not as bad as she was when she was lying on the operating table after this terrible accident and she's not well enough to work i agree with  opponents counsel that the burden of proof on medical improvement lies with the commissioner to be pretty clear under the law so and so that is true but there is still significant evidence substantial evidence as is required to support the examination of this cleveland he spent a significant amount of time with her that day he observed her and he recorded quite clearly his observations right he says she doesn't have scoliosis he's not really talking about the pain she can pick up her purse and she as he puts it bounces into the car without any apparent difficulty she's got an intelligent gait and he sees that she's losing some bone density and so on but he he's speculating about whether her pain severity is as bad as she says it is she may be experiencing some chronic post surgical pain and i don't think that anybody debates that she's been paying the standard is not that she be pain free no no i didn't start that but the total disregard of the treating physician lengthy period of treating her unless you think this doctor actually should be indicted by the u s attorney for promiscuity use of oxy cotton an oxy codell and so forth he thinks she's in pretty serious pain he keeps her on very significant opioids he does have her eyes and he does have her on a regimen of opioid medication for quite a while and it proved to be fairly effective well and she still won it in two thousand and thirteen you know she has the record shows that her toes did not elevate did not go up very much over time the record reflects that she did not use her oxy co down for breakthrough pain very often and has no it's dr de hart's notes regularly indicate that she does not need a refill on those x ico done short acting quick acting pain medications because her other medications were working effectively now that she's full of medications for the pain and she does have underlying conditions that could be accident and was left with crushed vertebrate one point they're talking about essentially fixing her entire spine and and so and he's treating her with very significant pain relievers so the pain it seems to me is is clearly real and if it's enough to prevent her from working either a forty hour week or if it's enough to cause her to miss say four days work a month the social security administration says the person can't work and it's i'm not uncontested that this was a very serious accident that she had a serious injury and that's why she was awarded benefits but experiencing a severe injury and a severe and terrible accident is not enough to be permanently disabled well it may or may not be but you know she says she's got the chronic back pain she's salling all the time she's you know she's got that's why i asked about the additional things too because once you get beyond whatever recovery she's had from the accident there's still residual functional capacity determination eyes right which they which the l j listed  become completed a residual functional capacity assessment and he explained why he found that she could do this very limited range of sedentary work he's not suggesting although appellant says in her brief that frequent not constant use of her hands he went through all of the evidence and identified the limitations that she continued to suffer now can she lie down during the day i suppose she could over the break over her or her lunch break i don't think that that was forget about the days that she stays in bed all day and the jake and lael jay kind of over read the camping so called camping where she goes with her family  altar didn't over read at the l g considered a he asked her about it he found a troubling that she says that she is has difficulty staying in one position and then would choose to go and spend her entire day inside of testimony that she couldn't sit in one position she couldn't stand in one position in the sez she spends most of the time lying down in the camper and she's got a ramp that her husband build she says she spends most of her day lying down in the camper but she also testified that she had to sleep sitting up i mean i think it was reasonable for the l j to consider this inconsistency it wasn't the only basis for his determination he also considered her testimony in light of the medical evidence he considered the opinion of the state he did view them in the context of the evidence as a whole and he thoroughly explained how do you tell the difference between a as though he were doing it for the first time for a restoration of capacity improvements so he essentially dealt with that earlier in the opinion but they the final residual functional capacity taking into account all of her all of her medical records as of the time of the hearing was essentially  didn't he conducted that in light of the earlier evidence but it was a complete review of the evidence so let me ask this if if if we should just a matter of law heavily discount treating physicians because they have relationship with the patient doesn't that a limit a the treating physician rule that that can always be said of the treating physician so it really means there is no treating physician rule there's just you know you've been with the patient so we don't trust you rule resources i guess i don't know who's going to pay for all of that the well she when she saw a doctor to her frequently as as she now says as the right if you go outside tests cost money but he doesn't need an outside test to conduct a range of motion testing he can do that in his office dr beamer did that in his office other doctors regularly did that it's reflected and other medical records he simply didn't do it he didn't you know he doesn't need to do outside testing to test the strength of her arms and legs but nowhere in his treatment notes doesn't indicate that he did those he simply recorded her complaints and because he relied too much on those complaints the l j reasonably discounted his opinion and we would ask  seven and then after between two thousand and seven eleven and then again after the improvement point there the same they were following incredible and gave them weight in two thousand and seven and then he does the exact same treatment there's no range of motion no strength testing before and then all of a sudden now they said well there is that isn't there so now we're going to discount the other point here is and you made mention of the campaign it just seems sometimes that it's stretching to come up with a rationale to support the doctor or the mail she stated dr smith's notes which suggest the climate was actively involved with tampering does not correlate the claimants report of spending or the entire time in the camp or the record when you look at it says she was camping she wants to go back to her family and if they were there for the weekend there's nothing implied in that