yes morning your honor so may please the court i'm kelly walsh on behalf of global linguist solutions and american insurance company i would like to reserve two minutes for rebuttal please ok  the issue in this case is comes down to whether or not the lower courts erred in finding that the responded mr abdul met his burden of proving by substantial eviden that his psychological impairment rendered him disabled meaning that he had both a medical condition that resulted in diminished earning capacity from a time period from november ninth two thousand and nine when he returned from iraq after having ha tested positive for hepatitis c up until december sixteenth of two thousand and eleven when he first began treating with a psychiatry doctor poc now while the lower substantial evidence standard and that the claimant they've cited that correctly but it is our position that they didn't apply the burden correctly because there is so they didn't consider all of the subsidy and substance chill evidence that persuasion they have to persuade the court you have to take into account the evidence that that detracts against what has been produced by the climate at some point they have to choose and they chose one of i doubt i do and i our question is whether it's substantial yes and i would argue that it's not seen john i would argue two things that it the burden wasn't applied properly and that what the evidence produced by the claim it wasn't substantial when you consider the evidence as a whole and one of the ways because this is a psychological impairment these are always kind of difficult to nail down a disability because it's often not immediately treated not immediately reported and so that's why and the administr that decision in order he cited this case but not for this proposition but the blankenship versus when case from the sixth arc it and i think this is a really good case to look at because it verbalize exactly what you should consider with these psychological impairments and notes that you know it's with slowly progressive impairments it's difficult to establish a person date of the onset of the that the impairment caused disability but essentially you're arguing let me back up you have a witness dr mo who testified or diagnosed essentially the same had the same diagnosis as the doctor puck but just with a different name in reading through this it appears talk to mow diagnosed maladaptive personality traits but in her description it appears to be the same thing as p t s d which is what dr pox diagnosed him with and and you're talking about the difficulty in diagnosing when these diseases began but their mo goes ahead and says that it was a preexisting condition to the two thousand and nine so i'm having trouble deciding what the difference is between those it's not necessarily the diagnosis of the physical impairment that's at issue here it's when that fizzes that not actions are as a physical impairment psychological impairment it's when that psychological impairment the came disabling such that you had a diminished earning capacity and i think that is that's the crux of this is that whether he had he was suffering from and diagnosis maladaptive personality disorder which to preexisted his employment or it was after it's when it becomes disabling and we think this period from november two thousand and nine she just summer of two thousand and eleven that that there was not substantial evidence to show that it it was at such a level that it reduced the mr abdel my guides earning capacity and if you look at the evidence of what happened that's why i think the blankenship vs bowen case is really helpful in this regard because as they say it's necessary to infer because of the difficulty with this physical impairment and when it becomes disabling it's necessary to infer the onset of disability from medical and other evidence that describes the don't believe because first of all symptoms in and of themselves do not create a disability now if you go through the symptoms that he's reported and this is when he testified he reported these after the fact so but whether you know you testified and reported when they occurred if you look at his trial testimony and the other reports in you parse this out there's really as to symptoms that he reported that had arisen that he reported when he returned from iraq in november in the trial transcript but wait a minute this whole case is set up such that we are not challenging the ultimate conclusion that in fact this employment caution p didn't this employment was not what caused it he didn't really have p t s d and he really wasn't my caution isn't that essentially it should preclude in this case it's already been decided and you're not contesting that so all we're trying to figure out is whether this i want to clarify is that with the administrative law judge that first i said whether it was p t s d or maladaptive he had some kind of psychological impairment but we're not necessarily arguing that there wasn't a psychological impairment there what we're arguing is that it wasn't so much that it diminished just earning capacity that he so that in those two years he would be entitled to compensation i spent but you just showed up and you said well he had nightmares to begin with right but back at that became those nightmares became disabling such that he caused by his employment then the fact that he may have had some of the symptoms of it earlier can't be the end of the story or even terribly relevant well if you have the symptoms and then he was able to work for employer and still ha progressing impairment i mean and i'll say for the record i wanted to reserve some time so i will i will wait all right thank you good morning your honour's learn merrigan here on behalf of up dollar off yet in continuing to argue that this is a slow progressive impairment like the blankenship case which involves schizophrenia overlooking the differences between schizophrenia and p t s d and again reaching into case law to show facts facts of this case are that he was disabled when he came back from the war zone their own expert said and this is a quote from his own report it should be explicitly stated that whereas it is generally accepted that some individuals experience the late onset of p t s d the vast majority develop symptoms of this condition near in time to the trauma responsible for it as well most of those with so called delayed onset p t s d suffer sub threshold symptoms of this condition early on and need only worsen a little bit before they reach the diagnostic criteria th it doesn't matter that would be true your honor it doesn't matter it's not about the name of the diagnosis under the longshore act it's about whether or not there's a disability  the petitioner's argument that the credible reports of mr abdel mageddon are legally insufficient to constitute substantial evidence that it is that's already been rejected by the denied benefits on the very basis urged here in that it was only because of the claimants own reports and the second circuit said no in a psychiatric case unless you have reason to doubt that report you cannot  the treating physicians opinion that the person is disabled and it makes sense because this isn't the sort of situation where and you can send a patient out for an m r i to confirm that he has a minuscule tear as psychiatric condition is almost always just going to be based on self report good question in the ninth circuit do we have ninth circuit precedent comparable to the second circuit case you just mentioned your honor we do on the legal i gather i just signed all over the country but is that what the statute seems to say as your honor noted it is a little bit of a i believe the purest decision has resolve isn't wasn't directly about that it was something that was it did read against the statute just common sense ground and your says essentially suggestion we do it again yes your honor the one thing that i would urge this court against and of course it couldn't do it unless it was sitting on bunker cardless because a p r s decision would be to follow the circuits that have held that these types of cases need to be brought first of the district court the benefits review board was created in one nine hundred seventy two to eliminate that procedure and the indications are that it was mere oversight that the bennett defense base act was not amended at the same time as the longshore act was there are some circumstance still do that anyway yes your honor in my overly long statement of jurisdiction i touched upon the circuit split but as this court has noted elsewhere the case name is alluding me right now but judge scanlon wrote a dissent about three years ago in a case stating that were it up to him he would throw it back to the district court but he acknowledged there that it was not up to him because of the pierce case all right it was it was concurrence i'm sorry your honor it's not a yes your honor sir i just want to break very briefly go point out that with regard to a diminished earning capacity and if you look at the actions of the claimant in the period pon his return you will to point that was because of his psychological impairment there's just no evidence the record of out of it at all i mean there's nothing to show that he couldn't keep a job for that reason because the other way he was trying to get a job he was trying to work and he wasn't able to get a job apparently because partly because you can even fill out the papers and when he went to iraq he was unable to follow through on picking up what it was supposed to pick up and as to then he did get a couple  testified as far as being a fill of the application he testified differently that he testified at trial that he did he wasn't precluded from filling out the application that wasn't a problem they just didn't get it so i would say you know he filled it out he's not saying he couldn't so he could have gone back to work with an employer but he didn't send it in so there was the you know but he didn't say he couldn't do it because he couldn't figure it out and he said he went to almost as explanation why didn't you oh he said he did it and he cement we'll take a short break thank you