i don't know where it's going but we've had this equipment we're going to test it out and so that the court will be adopting some rule on use of video arguments  for the court i don't think it's going to be for the lawyers and it may be under certain circumstances for the court when this is are made a test to see how it works and judge bright has volunteered to prepare and  present for this case as a very active member on the court so that's what we're doing today and we thank you for being part of it so that mr wallace were ready to hear from you  next important event for people like myself who have trouble in our older age traveling and so this is an opportunity for me to purchase made in the corner or over having your travel st louis and i am very happy to be here and on with the show as they say thank you get judged right for more volunteer and be part of this ok professor la may proceed may it please the court my name is greg wallace and i represent candy kline in this social security disability appeal mr klein is a forty four year old woman who is unable to work due to and degenerative arthritis now the ael jay found that miss klein can perform the full range of light work and he found her not disabled on the ground that she with that r f c can return to her past relevant work b l j s r f c finding here is inconsistent with the opinion of this klein's treating doctor dr allan so the issue is whether the l j properly discounted dr allen's opinion that dr allen treated miss klein from november of two thousand and eight through march of two thousand and ten in march two thousand and ten he completed a medical source statement in which he stated that miss klein could lift up to only ten pounds can sit for a total of three hours a day and can stand and walk for a total of three hours a day when miss klein's attorney presented  to call that included these limitations found by dr allen the ve testified that there would be no jobs in the economy that a person so restricted could perform  are her his observation and his report on the other hand you have this other doctor who was hired by ministration never sees the patient and  from never seen a patient that she is fully capable of doing such things as lifting for example up to fifty pounds and that's a problem in this case correct yes or that is the problem because the ail jay really has no other evidence in this case that supports his opinion that his finding that this klein can perform light work to other doctors who seven he upon that miss klein can only stand and walk two hours a day which is one hour less than than what dr allen said and of course such a limitation on standing and walking would preclude the performance quite work because light work requires the person to be able to be on their feet for at least six to eight hours in a normal workday dr macneill knew who also treated who treated klein in two thousand and nine other doctors other treating doctors in the record they didn't comment on miss klein's work related restrictions but nothing that they have in their reports or treatment notes is inconsistent with dr allen's at the bar you'll have a situation where she was turned down for her application so we're not in two thousand and seven we're now on two thousand and ten and ready up to date one of the notes there really is is not a lot there of course these doctors when they treat patients as this court has recognized don't fill out their treatment notes anticipating social security disability at my notes here talked about the two on remarkable m r i they've occurred one a few months after and one maybe a year later from a positive c t scan which found a slider or small bolds but the m r i were were unremarkable and then talked about that there was no restriction on the range of motion or mobility any limitations any muscle weakness no muscle atrophy absence of the dr imposed restrictions conservative treatment and and deceptive behavior by the plane he knows where all the items that threw up there so what what is your response to those items well first of all it's not clear that fibro would not be shown on a c t scan or an m r i those deal with with foolproof and if something if they come back negative on a remarkable that doesn't necessarily mean that nothing is there on the other hand if a c t scan does show something that is there then then that in two thousand and eleven and no no disease no joint disease no he actually diagnosed her as suffering from back pain typical of fibro mildura based on two separate occasions in which he found the trigger points in this court has said that fibro is kind of a tricky disease it doesn't have a lot of objective manifestations can't see it on an x ray or a c t scan and but the presence of the trigger points is something that is her body and those locations are typical are consistent with with other person suffering from the the same type of disease and the doctors have a den of fide i think as many as twenty and i think they have to have a certain number fifteen or sixteen out of the twenty to be for it to be diagnostic of fibro miles and dr dr roberts found that she had these while dr allen's notes don't necessarily record some of those things i think those gaps are filled in by the treatment notes of the other other doctors that treated her for example dr not did find a limited range of motion contrary to the noted tenderness and and multiple areas of tenderness and spasm here as to conservative treatment i think the government suggested that you can't really be disabled by back pain unless you have back surgery but but ten times over a year and as i get it he relies on that there's no treatment and no stone are consistent but don't say anything special and he also goes back to i think way back to some psychologist in two thousand and seven on one occasion said she he doctor klein was exaggerating but that was just an opinion so what you have here seems to be is him pinioned by a non treating doctor an expert looking over the records who says this woman can do psych certain things without any testing case law and under the regulations is to be accorded great deference here in the in the ail jay didn't really evaluate the treating doctor's opinion here is under the the factors that the regulation set out and typically when you have the opinion of a of a non examining doctor that does not is not to be given precedence over the opinion of a of a treating doctor unless there's very good reason for doing so and here you have two other doctors in the record that would agree with dr alan about about miss klein's restrictions you have three other doctors who treated her who have it in if i had nothing that was inconsistent and the fact that she hasn't undergone back surgery i don't think this is of any  account because back surgery is not something that's that's the appropriate remedy for fibro mild japan let me ask you this you know as well as anybody the standard of review in the standard review is substantial evidence which is probably what is less than a preponderance of evidence or just that has to be some evidence that supports a here and you've got to poke holes in that it what you're doing but  why is there not substantial evidence here maybe maybe it's less than fifty fifty maybe it's twenty five percent but why is that not enough in this case the proper standard review a substantial evidence on the record as a whole and the record as a whole here supports dr allen's opinion there may sure there may be a state agency doctor that disagrees but the record as a whole when you consider dr allen when you consider d mcnew when you consider the other treating doctors cagle campbell roberts all of these doctors either have said things that support dr allen's opinion or have have made findings that are not inconsistent with his opinion and and so the evidence that the l j has to rely on here is is terribly three thin to support the conclusion that she can perform light work l j take into account a patient's non compliance with physicians direction yes if that noncompliance would restore her ability to work what's the evidence in this case relative to patient compliance and its impact i don't think there's a lot of evidence here about noncompliance i mean i mean she may not take her medication error now and then i take about ten pills myself a day and sometimes i don't take them because i've run out and i hadn't gotten to the drugstore and things like this but i don't think that there is any sort of blatant history here of noncompliance with finding that she was not credible not totally credible how does that enter into this well i think her credibility finding i see my time's exp question thank you i think the credibility finding here depends a lot on the medical evidence and dr allen's opinion as part of that is part of that medical evidence now her daily activities that we didn't raise the credibility issue thousand and ten opinion and they all j in this case articulated two specific and valid reasons for forty little pain a little way to this opinion the first reason is that dr allen you note do not support the and well i read every one of those forms and every one of those forms has the notation of the assessment is back page and then all the other notes literally  other factors but the back pain is consistent and ten reports now i'm trying to figure out why they l j said that his opinion important to point out this point that not as this court has stated not every diagnosis of warrants a finding of disability rather the issue is not a particular diagnosis but what limitations if any come from a result from discussed the limitations from from this as well as other severe impairment and found that klein was limited to a to a full range of light work no words he he credited her and he realized that she had some impairments that limited her and he reduced the amount of work that she was able to do finding that for affording little weight to dr opinion is that the medical record on the whole is not consistent or rather that dr allen's opinion is inconsistent with the radical record on the whole as has been pointed out there lift twenty pounds occasionally ten pounds frequently not consistent with a finding that klein could perform light work twenty seven she had another claim that was rejected no and no found in june two thousand and ten that klein was independently ambulatory and she had a full full strength in her lower extremities and now after looking at a another m r i in two thousand and ten which showed only minimal facet joint fusions a d like an lumbar spine with no tenderness and she had a full range of motion in her neck her hips and her shoulder and that was she was a neurological intact with no weakness now we contend that these findings serve as the substantial evidence they not doing x y or z or engaging in certain activities his his notes are silent actually show very minimal findings other than mention of back pain the second reason is that the articulated to reject or afford to afford little weight to dr allen's opinion is that the longitudinal evidence does not port or rather again that dr allen's opinion is inconsistent with the logic to no evidence so in some the a did find substantial evidence to support weighing doctor's opinions and consistent the regulations and this court's precedent be able jayson titled and is not read to to afford weight specific weight to physicians opinion depending on a many factors and again we submit that these please the court just two quick points on rebuttal first with respect to dr meant news recommended recommendation that she exercise this court brosnahan versus bar hearts as the next sizes and taken as therapy are not necessarily an indication of what a person can would submit that that's exactly the reason why the treating doctor is in a unique position to know why you know how this disease limits the extent to which this disease limits