the honorable the judges of the united states court of appeals for the th circuit oh yea oh yea oh yea all persons having any manner or form of business before the honorable the united states court of appeals for the th circuit are admonished to give their attention for the court is now sitting god save the united states and this honorable court good afternoon everybody welcome to the four circuit we have four cases on the with weights and cycling i don't know how do that that is exactly what part of the prescribed treatment is for my fibromyalgia you're supposed to exercise your supposed to do those things to try and minimize some of th and to increase some of your strength so doesn't that that keith able to do those things that he can still eat it isn't that some indication that he may not be the bearly impaired to the point of being a valuation play and i don't believe that it factors in here i thought the test was whether or not the impairment significantly limits his or her physical or mental ability to do basic work activities and why wouldn't the ability to  really go to r f c can she do sedentary work and you do or past work other work those are really relevant but as the commissioners rulings point out you do strictly a medical determination and it wasn't i want to point out it was not just d or what it was whatever because they both indicated that it was severe ninety has i'm sorry i'm sorry i didn't mean to cut you off but i think right there the states doctors both said it was severe are there other cases i mean is this happening frequently is this the st time you've seen this where fibro my allergy is deemed not severe at step two is this unusual or they don't have a feel for this i would not say it's unusual i would not say it's frequent you and i know that's not very helpful but i have seen cases in that and i think we cited ultimately get to the residual functional capacity and make a finding that she could do the work to she had done previously with some limitations he did not run or he does mention in what i consider sort of an addict opinion it know he must have assumed that in order to get to the step or evaluation with respect to residual functional capacity now maybe it may be that the argument is that his opinion or her opinion of who was a woman hale j was colored by the fact that she didn't perceive the impairment to be severe maybe that's maybe that's a response but she did didn't she get to the issue of whether or not she could do work with certain limitations she mentioned in the last paragraph one of the last she does discuss that problem is that the rulings and regulations are very clear before you get to step five you have to go through stuff for me for you get before you have to go through three you can't go from it's not a severe impairment to plus she can work because it's to just stop right there in the nothing more that's what the ruling say i think eight thousand five hundred and twenty eight specifically says you go through the steps in order and at any point you stop now there are i'm certainly there are occasions where that might be appropriate somebody had stepped aside said well maybe they can do some of their old work but i'm going to go ahead and stress these other jobs i certainly understand that but to go from not severe meaning to minimalists no significant limitations the she can do her past work with nothing and no discussion of the other steps in between is just not the way to the analysis goes especially when the state agency doctors agreed with the treating doctor that she signal significant you think that and i grew to that it appears that the l j made a mistake with respect to the opinions of the state doctors but let's assume that she had accepted all those opinions as fact that they had all come to a conclusion that in their minds that this was a severe pyramid but the o j could have i suppose none the less this counted those opinions in light of the record evidence that suggested this she could do a lot of the things that would appear to be inconsistent with the finding of a severe impairment like going to the gym like you know going to music park i think she went to disney world and did some other things that they could could have done that right the judge could have considered those i think quite honestly that this had to be a step to denial because if you look at the medical opinions of the various doctors and any others that that step for step five it would have been a ed the only way to really provide benefits for somebody of her age is to say her impairments aren't severe because if it's not the ability to do something on a short five minute one day one week basis it is the ability to do them on a  hour day five day but we based and that's where the judge was having problems because the treating physician west bank she's going to have base where she's going to miss work because of of her problems and the consultants were saying she's going to have problems getting it through certainly can do more than six minutes to six hours of standing of sitting and two hours of standing and walking so there were significant limitations and her means and depending on what the judge then when properly evaluating the evidence i think this judge would it would have been likely to have upro thousand and seventeen he's now gone through the sleep apnea he's gone through all of the other studies and reached the point where he can say i think this is what's going on and it is for those reasons she the physical therapy that didn't work she had the top tests to rule out other diagnoses and she had injections she tried different medications in short she did everything i think she could have  done and i think that if if this was truly a monster veer impairment i don't think we would see a record oh for this much referrals out consultative examinations and specialist roughly until july of two thousand and fifteen live two thousand and fifteen of the record states that she had tried the medication ultracet and that it helped in that she would continue to use it and as judge that her pointed out in well the the a l j the the treating physician rule applies and less the energy finds and of course the finding has to be supported by substantial evidence that the opinion of the treating physician is contradicted is inconsistent with other record fall where she injured herself and was being treated for pain from that fall out after the aug two thousand and fifteen ceasing of the rheumatologist visits there are no complaints with respect to fiber my alger after that point opinion she had seen a rheumatologist at that point for over a year in the last time she saw a rheumatologist which of course was specific to treating the five for my algebra she reported that she had improved symptoms at that point and so so i will i will tell you one of my many concerns about this case is that as your colleague was saying at step two this is a medical assessment and there are three doctors only three doctors but three doctors in agreement that this is severe that this needs to step to medical criteria the ael j mis understood that the l j thought that the doctors were split two to one and that she was agreeing with two of them that it was non severe over the objections of the treating physician which is a more kind of standard set up so i can see that probably seems sort of familiar but that's up co what's the error to make and i am left without much confidence that it would not have infected the rest of the way the a o j was looking at this record that she misunderstood that there was actually unanimous medical testimony on the medical question of whether her impairment is severe in the ale jane understand that i  made an error in saying that the state agency physicians found non non severe but the elderly then went the next step and said listen even if i agreed with that and found  impairment to be said i nonetheless would find that this trip was not the same so that's right but my concern is that that wouldn't exist the treating physician doesn't agree that she can do this or  if she the sedentary accommodations are made and so my concern is that her misunderstanding of how the doctors aligned on this question would have affected her decision to discount the treating physicians opinion i don't see how we can separate them out so cleanly your honor i think that the on this record combined with the decision you can get some comfort that it did in fact the rest of the  but i did have some concerns about the jays analysis of the longitudinal record and i would have expected that for an ala jay finding that a condition is well controlled with medication but there would have been some discussion of all the side effects from the medication and the degree to which those side effects sort of and paired her ability to use the medications to control her symptoms to the point where she ended up in the hospital with side effects from the medication and the l g doesn't mention any of that so i actually  which was in december of two thousand and seventeen i believe that she had experienced side effects from tramadol which was the medication she was on however she was on tramadol for more than a year and there is no record of any allergic reactions to it within a year  fact as as i said earlier the she was feeling better from using it and showed some positive influence on her symptoms so there is a record instance of every actions you want of the medications but the record clarified that you can't rely on things like a normal range of motion like the fact that the treatment was sort of routine kind of conservative treatment all of that is stuff you're not supposed to look at at all i'm assuming your response to that would be well it doesn't matter like we can take that stuff out it is just another kind of heartless error she should have looked at that she did but there's no reason to think it affected there's no reason to think any of these mistakes affected her analysis was not receiving report found the climate was not receiving routine treatment she had seen a rheumatologist for twenty years that tried various types of medications that can refer different specialists and receive injections and so on and so forth  and in this case we have something that's fundamentally different mistreatment was referred to a specialist was treated by that specialist reported symptom control and then stop seeing that specialist and after that only saw her primary care physician for profess that i'm not an expert in the perspective that i know that it afflicts a great number of people and it's unique in the sense that there's no tests for it it's largely subjective but that's sort of a bit of a conundrum right when it comes to disability claims because if it is subjective then in some cases you know that subjective analysis or evaluation of pain may you have maybe less than truthful or less than full and folsom and so wherever barred from considering that of evidence in the face of a claim by a claimant that she he or she is him subjective pain right that you accept that obviously but then use you look to the record and see if in fact that subject of pain is consistent with the daily activities and all the other stuff that appears to be in this record i mean is that a seven fer yes i think that is fair i think that iraq does have five of my own it's the next there is that is one of the symptoms from bad diagnosis are they controlled by medication treatment and in making that finding part of what the energy relied on news trip was responding to not working and taking medication i think helps support her claim and it draws me back to the part of the judge's decision where he gave the state agency opinions little routine treatment not require specialized treatment rehab or expensive in fact the records show that shows just the opposite that in fact she was getting all the appropriate treatment all managed t her treating physician it is it is a subjective impairment and i would simply point out that not only both doctors for the state say it was a severe impediment they both noted that  yes her symptoms are real they're consistent with the diagnosis and they're substantiated now we have three doctors all three doctors point her symptoms are substantiated by the objective medical evidence alone and that's the last word in the question alone based on the medical that is and it is difficult i spent a lot of time in preparation for this trying to diss distinguish between what is the medical evidence the symptoms are consistent citizens who are supportive of the diagnosis and that they are that her complaints are consistent with the record of the parent can i best question you you made an argument that you said something to  why they can be the only conclusion that it based on this record so maybe you can explain that to me sure i believe i believe that because the nature of the diagnoses in the record and references to the doctors of problems with which are all parts of fiber my algebra the absences from work i think that those things all combine to leave a an administrative law judge in a difficult position for example if he has this ng s that impairs her ability to wa be live in richmond but nonetheless thank you for your arguments and we would normally step down from the bench obviously we can't do that to shake your hands but to know that we are grateful to you both for your presentations here this afternoon and pray that you will