good morning your honour's eric slopping on behalf of michael kelly i'm going to attempt to reserve two and a half minutes for rebuttal in this also security matter we asked that the decision of the ministry to bludge be remained it as it is now free of legal ever the l j rejected treating physician opinion and other evidence of disability for reasons that are not supported by substantial evidence for example she rejected evidence writing that kelly i did not reveal significant central canal stenosis and then concluded that pain complaints lack believability but the l g didn't adequately cite us to that m r i and that the decision interpret the significance of those findings the issue that we have here and specifically to address your concerns educated she referenced the part of the  she does not reference those other parts those abnormalities the abnormalities the treatments based on in that the pain complaints are caused by so the relies on a number of different issues one is that the objective medical imaging indicated disabling impairment and so i wasn't sure that there was anything that stated that the m r i images did indicate disabling impairment i didn't see anything to add effect in the well so let's talk about those objective findings because that's what the administrative law judge mess and to my reply brief i put in a diagram that actually shows where mr kelly's problem is and what the judge focused on so there's a difference between central stenosis in lateral stenosis what mr kelly has is lateral stenosis but we're not as judges are not going to be able to evaluate medical data  to to review this medical evidence and ascertain whether the objective findings could reasonably cause the reported symptoms which she says they do now she questions the degree because there's no fracture but you don't need a fracture to individual has lateral stenosis he's got mass effect on a nerve root but i find that his symptoms don't correlate to this big cost and there is their evidence whereas their doctor making the statements that you're making to us right now what what the radiology report is the doctor that that says that it's able impairment i mean that it's other words it describes what what was seen in the m r i doesn't make the conclusion as to mr kelly well went on to assess functional capacity based on the objective data that he reviewed not based upon the claimant's complaints and he specifically states that in his report that these assessment limitations or consistent with the objective data and take a look at the treatment notes not only those objective findings but what did they do for him he failed injections he failed the tens unit they're working them up for a pain pump i mean they  their direction and they find drugs in his urine that he took outside of the clinic and was not taking the drugs that they had prescribed so that's why they discharged him and and  and which is the same conclusion that the pain is out of proportion to the objective evidence so dr paige in his evaluation noted that mr kelly's pain was so severe that he was running out of his pain medications early because in the records show he was taking his pain medications every four hours they didn't give him more he didn't abuse the medications and then it also showed that he used medical marijuana he it was a medical marijuana and so when he got discharged and he started treatment with dr radcliffe he was continuously tested for marijuana after that and he stopped using it because the doctors told him to and if you look at the consult examination report at that time he was using two to three times a month now you have an individual with a mass effect on a nerve with ridiculous apathy which is pain that travels down his leg and none of good morning may please the court my name is martha bowden and i'm appearing today on behalf of the acting commissioner of social security first i want to respond to a couple of things that counsel talk to you about it is true that that dr radcliff treated mr mr kelly for a couple of years at leading up to the ale j's decision and what he found was after giving him more and more narcotics he made a decision right just before that hearing  and you refer to it i think that he he felt that the pain complaints that mr kelly was reporting were out of proportion to the objective findings including in the name of the m r i report in a c t scan he felt that that didn't explain his pain the back issue and what he thought was probably causing it he wanted to change strategies and what he wanted to do was to send mr kelley for a psych examination because he thought maybe the mental health issues played a role in the level of pain he was having and he told him that i will discharge you from this clinic one because you have had inconsistent drug screens and he repeatedly warned him about that he also said you were referring you for site counseling and you must go or i will discharge you from this clinic because i think and the other thing he wanted to do was taper down the pain medications and at that time at the time the hearing came around mr kelly was on the equivalent of about nine hundred milligrams of morphine predict a which was double what  radcliff thought was appropriate and so he really recommended a detoxification program and that was in the plan right as the hearing happened and we don't have any updated record since then so yes mr kelly was discharged from the first pain clinic and it wasn't just that he ran out of his medications early it was that he was testing positive for things that he wasn't supposed to be taking and he was testing negative for things he'd been prescribed for whatever reason and so that's where he got to dr radcliff but see also the whole idea that the ale j interpreted the medical evidence in inform of the m r i as if she were a doctor really is not persuasive in fact she said the same thing that dr radcliff said so she pretty much accepted dr radcliffe's assessment that the m r i did not explain the back pain that this gentleman was reporting it that was his medical opinion and that's pretty much what the a l j said as well i'm not an expert in the difference between for a for a minimal narrowing insta gnosis and i don't have an m d but i think what the ail j did was she fulfilled her role to review the evidence to consider everything she had in front of her and two side how to  gave several clear and convincing reasons for discounting mr kelly's credibility she agreed with the reviewing doctors that she was unable to give him full credibility because he the medical records did not support the extent of the limitations that he reported she plays a lot of almost excessive weight on that on those records she looked at a lot of things she looked at the she looked at the objective evidence in the form of the m r i and also some of the physical examination was there he found that there was a reducible hernia otherwise there were no objective findings of any orthopedic issues at all there was no loss of range of motion no tenderness to palpation of mr kelly's back so these are some things you was really not able to do any activities of daily living thing for supposed well the just decided it wasn't she discounted that testimony she said that it would not supported by the evidence and also that she was not change that's my recollection she also found that there were multiple physical examinations showed no nor logical science she also discounted dr reckless opinion was that the basis for dr reckless opinion supported by objective findings or anything in the record that shows that he relied upon the neurological no you know there's no he doesn't discuss that he does he does diagnose really ridiculous but he doesn't he doesn't no why would the why would be proper for the rely on that as a basis for discrediting dr reckless opinion oh well she she said this was in the context of having his opinion not be supported by the evidence and so she was chronicling the evidence she thought was inconsistent with someone who was in such bad pain from low back pain relief in what should have been there should have been some signs of a neurological that would have made his opinion more persuasive she also talked about how mr kelly reported on numerous occasions that his back pain improved with medication and so she thought that undermined dr radcliffe's opinion that he was totally unable to sustain full time work and she also she also noted that she agreed with reviewing doctors who found that there were no significant functional limitations in the medical records did not support what his what his testimony was those were all the things she evaluated when she was looking at dr radcliffe's opinion is credited as entitle to benefit no minus one of the things that dr radcliff found was that there was evidence of substance abuse there was things like amphetamines and c in a system that they told him they didn't prescribe for him and they told him not to be using that and so now we have a case where even if it turns even if you decide that he is disabled and that the erred in you credit evidence is true that's consistent with disability the case has to go back again because we now have to make a finding about whether drugs were material to that disability step six or were yeah step five point two part two  thank you so counsel indicates that the administrative law judge relied on the opinion of the consultative examiner in rejecting reported symptoms but i do want to point out the consultative examiner found that there were no severe limitations no medical impairments that met the severity description under the regulations and when the administrative law judge looked at that page twenty two twenty three she writes it's inconsistent with the record i'm unable to assign d briggs opinion any significant way the ministry of war judge rejected and then what's really peculiar in this case is that there was an opinion from a now entreating on examining physician who said exactly the same thing is  he said there was no severe impairment there were no medical limitations at all so the administrative law judge says sent out the briggs well that's inconsistent with the m r i pain complaints treatment i can't give it anyway and then she turns around and gives the other opinion significant way you cannot reconcile those two fine and then if we look at the case law it tells us that the opinion of the treating physicians generally entitle to the greatest weight than a consulting examining physician which he rejected and then lastly the non treating non examining physician opinions which for reasons you can a figure out from this record she gives significant weight to and so when we look at this record and look what mr kelly did ok he was making forty to fifty to seventy thousand dollars a year he was in pain he was having these surgeries for his bladder his hernia is his abdominal wall and so he decided he was going to try to start a staffing business on his own where he could control his hours he can control his duties and that in work and so then we submitted to the administrative law judge the bills that have been piling up he's got medical bills that he's unable to me he's got taxes that he's unable to me and he goes on to lose his house this is not an individual who just sat back and said i'm going to collect a disability benefit this is an individual who despite all of those financial hardships that are documented in this record continued to try to treat his and we've learned think pain if you want to address the dread issue yes so the drugs is marijuana and he had a medical marijuana so there were no other drugs because opposing counsel is an engineer amphetamines and other it was prescription drugs and medical marijuana