good morning may it please the court my name a time kathleen on it i'm representing gail craig in this appeal let me jump right to the reversible errors here the biggest error by the a l j involved her treatment reasons for doing so the as he stated for reasons for rejecting dr wheeler's opinion none of the reasons are legitimate one of them in particular her statement that  his her conclusions were based predominantly on the claimant subjective complaint while he was attempting to qualify for state benefits there is no evidence when you review her evaluation its entirety she noted his subjective complaints but she listed a lot of clinical findings and observations that support her opinion and it's very significant here that the l j disregarded those clinical findings as objective findings and observations the same is true if dr krueger's evaluation which was about one year later they'll jay gave two reasons for rejecting dr krueger's opinion and one of the reasons was that it was based mostly on the claim it's subjective complaints as indicated by few mental health treatment records in the evidence he never got mental health treatment he was living in an isolated rural area almost never leaving his home avoiding society he was not getting mental health treatment that fact alone is not illegitimate basis for discrediting dr krueger's opinion and also  krueger's opinion dr cooper like dr wheeler described clinical objective findings observations of what he saw i don't understand what you're arguing but given the conflict in the well she could have decided that if she stated legitimate reasons for rejecting dr krueger's opinion in dr wheeler's opinion she gave four reasons with ocular not of which were legitimate two reasons  krueger neither of which was legitimate one of the aside go ahead and let you finish then just want to clarify for myself that off of these foreign doctors three of them were examining doctors and one was really function with in a workplace environment dealing with coworkers and supervisor have taken some time to develop that ability but in any event it's not enough the dr brooks opinion contradicts those other two opinions can't just say i'm giving him more weight because it's contradicted yet he's got to give a reason for why she's discrediting dr wheeler's and dr krueger's opinions and all for none of her reasons were legitimate  back on the fourth psychology that was dr robinson he was a non examiner and in this case there's not even any evidence that he it appears that the entire evaluation that he signed off on was actually completed by a non psychologist and non physician somebody named ryan erp known with no known medical qualifications signed it at the end and then there's there's a rubber stamp signature after that so in light of that and the fact that the evaluation by mr signed by dr robinson does not mention dr wheeler's evaluation or clinical findings and it was done before dr krueger's the very little wait if it's not supply not consistent with the medical evidence it doesn't scuff the other medical evidence i don't it's based on dr brooks report by itself but it's it's the least and there was a non examiner who didn't understand that that was going to be happening in the future and he thought all he could he could stand six hours and walk six hours he's got very live very few limitations that's obviously off base he needed to hip replacements it is a fact that after the several places he did you better he did start to get more quite a bit more physically active but that didn't last and he got worse over time however the mental limitations here by themselves are the reason that that he should be should be found disabled or should have been found disabled and and he should find error in else's vision based on her failure to credit those evaluations by dr weil or dr cooper without giving any legitimate reason for discrediting them finally i want to address the credibility there's an issue in this case regarding work activity described had been done perhaps eight or ten years ago there's no evidence or less at least one notation where somebody said he's back to work now and you i mean you just say well that was a mistake but you have no evidence that it was thing on a piece of paper and i'm in and the whole and on one level the whole enterprise is peculiar because here you don't have the actual one instance you just have a piece of paper but it is there on the piece of paper that he said this and there's no basis for thinking he didn't say it so there's some evidence that he said it's on a piece of paper i can hear some evidence that he that that so i can't explain that my best explanation that i've up with from talking to to craig is that he was he never said that he was back to like doing stuff he was back to moving his life i'm sorry by that i never said or i'm not i can't tell you for sure if he testified th he never said that effect came up in that in that respect but he i mean certainly what you're saying is perfectly possible it could have been in the saying all kinds of things show up on on record and i do have to add that once again that says nothing about the mental the mental health problems it and i and that's the best explanation i have is that it was a misunderstanding he was back to doing that and he was physio he went and played six goal holes of golf he was doing a lot better but i don't know why i have no idea why a physician assistant wrote his back to work as he wasn't working i'd like to reserve the rest of my morning that please the court jeff staples on behalf of the commissioner who asks that you affirm the district court's judgment because the l g s decision was supported by substantial evidence and free of legal air turning first to the issue of craig's work after he alleged that he was unable to work as your honor pointed out the question is not can the court come up with an explanation that would undermine the l g s finding under substantial evidence the question is was the l g a reasonable in looking at these treatment records showing that it might break always someone right no there was another one before his hip surgery where he said he had been working for the two years leading up to the surgery and then following the surgery a few months later in two thousand and twenty one that right at page three sixty eight he said he had been having pain over the last two years he had worked in the lumber industry for some of that time but by march of two thousand and nine he was unable to continue that so he got to have surgery then a few months later he went back to work the l g a was entitled to rely on this evidence in finding that craig was not credible to about the extent of his limitations can you talk about the mental health limitations certainly i think it's also true that craig's work activity varies on his physical and mental limitations so the fact that he was able to work both before and after his hip surgery the the fact is that it was his hip surgery that took him out of the workforce not mental limitations moreover back in two thousand when he originally alleged disability it was the fact that he lost his commercial driver's license that led to the end of his work not any mental or physical limitations so i think those facts all do speak to his mental limitations whatever they may wheeler and dr krueger or to favor dr burke and dr robert from over dr wheeler and dr krueger whether that really is supported yes your honor and i think it's important to recognize that this is a case in which there's so examining and not examining opinions that supported they'll chase findings and some that the l g rejected so the a l j is tasked with resolving these conflicts and did so reasonably in this case the a l j found that the opinions of doctors wheeler and krueger were not supported by the objective testing that they had conducted i'm having trouble understanding that because it seems like it was same objective testing that the other doctors and i think and the are law that he has to give specific and legitimate reasons and i'm not sure that that's a specific and legitimate reason when that what he said in support robert r obert robinson equally applies to the other two doctors while the difference your honor was that doctors wheeler and krueger while they also conducted mental status examinations the results of those were largely normal and so that did not support i'm not sure that that's true dr wheeler who was an examining her finding was major depression severe and mark limitations and there was a says this is the worst case you know in terms of major depression that she'd seen in a long time i think it was the exact you know something like that yeah that's pretty  significant statement when you look at her exam and you look at dr krueger rules also in examining physician he also identified major depression with mark limitations you have the drug problems with i think dr robinson's in that he really wasn't the examining person apparently he handed off that part to somebody else that's correct dr robinson was not an examining isn't correct that he didn't actually all the records of the examiners well here that he did his opinion i can't recall exactly when his opinion was but it was not from the end of the period so there were certainly records from the yes i agree however in this case dr robinson's opinion was supported by dr burke's opinion as an examining physician and under this court's precedent when a excuse me psychologist went to but status report essential the same thing i did some confidence testing in the course of a day just scribe what he looks like and how he talked and so on so it is true objective evidence did not support the market limitations that doctors wheeler and krueger assessed that was the difference i think what he said was that they didn't they they didn't do objective i mean  understand the objective evidence was very specific reports of how he looked and how he talked and and yet whether he looked at them and whether he was rigid and whether  language was and things that purports to be a report as to something about his men know situation as well as this whole document that was filled out which was the same document so the question is what is more or less objective or subjective of these two doctors and october so the l j and i'm on page twenty four here the l g did discuss all of the objective findings that dr wheeler made so it's not like the a l j was simply unaware that dr wheeler and dr krueger had conducted mental status examinations what the l j found was that the results of those examinations did not support the extreme limitations that they assessed but it did support the relatively mild limitations that dr burke assessed so that was why they all j found that their market limitations were based on the claim and subjective complaints that that's i guess that's true but there seems to be a couple issues there one because i'm not sure that dr wheeler's examination didn't support the severe limitations based on what dr wrote down that mr craig had the blood african dysphoric mood and noted several objective observations regarding mr craig's appearance and such but then this additional statement that in based on her observation and her testing he was one of the most were given the little way based on the similar nature of those examinations then those of burke and robinson when those were given significant weight i'm having trouble squaring that ok so let's say doctors wheeler krueger and burke all conduct as essentially similar mental status examinations there the objective findings are essentially the same let's say that i'm just trying to answer your question here so but but two of the doctors find that that same objective evidence shows market limitations whereas one says that it shows only mild limitations and the  looked at that and said well i find that these same findings do not support the market limitations and so those market limitations came from the claimants own subjective reports not from the objective findings is that better and i'm not yet but i'm not sure that's what the l g said i know that's a possibility but i'm not sure dr wheeler's findings were not just market that were severe and market limitations well there's a difference between dr wheeler's findings and dr wheeler s if i could distinguish between dr wheeler's findings that being the mental status examination and her assessment of limitations so the objective evidence was the mental status examination and that was consistent but what differed was opinion can we draw from this exactly and so the ail jay found that the those objective findings and he says that it that it did not support the limitations that they assessed it didn't that objective evidence didn't take couldn't take the they opinion all the way to the extreme market i'm sorry can't you know i have a question that i have a question about if do you have the page two sixty two in front of you which is part of dr waters it's pretty much two of the psychological evaluation from dr wheeler and what i'm trying to understand is whether and the same is true with page two sixty three and the reason i'm asking you is if this is part of the object in fortune there are severe limitations that are me here on both of these pages and so i'm trying to understand your position as to whether those are objectively or whether that's the subjective portion i see my time is up and i just answer your question so i'm sorry if i'm muddying things but the those pages that your honor is referring to that is the opinion the that's dr wheeler opinion about what the objective evidence suggests as far as the limitations go so these mild moderate marketed severe that is dr wheeler's assessment of how the objective evidence could be translated into functional limitations so the object of evidence is several pages later at the mental status examination and the l g a reasonably concluded based on these conflicting reports that the relatively mild object of evidence that being the mental status examination did not support the assessment that dr wheeler made and activities of daily living where almost any activity of daily living is a mark in peril do you consider that part of the objective no your honor i apologize i was looking at the top of the page the activities of daily living this is only what craig reported to dr wheeler there's no way for dr wheeler to know any of this objectively this is just what he told her may be other than hygiene and grooming which she could observe but things like can't walk enough to go into a store she's not with him at a store that's not an objective finding that's just what he's telling her can't walk far it's difficult to take the bus these are things that dr wheeler could only have ascertained from craig's own statements about the effect of his limitations and so looking at all of this evidence it was reasonable for the l g to conclude that dr wheeler's assessment of assessing depression other than the sort of thing what else do do you well that's a fair point and the fact that  it with her own eyes she saw those things with her own eyes and then the question becomes was did those mere observations sufficient to support the market an extreme limitation out about the other doctors to i mean you could say that about the other doctors that you know those are your observations because you're not focusing on any of the i guess i don't know what you would consider the objective findings versus the subject everything you've said here subject based on subjective findings well that's not to say that she didn't make objective findings that's just to say that the limitations she assessed were in excess of what those limitations what those findings supported but i think your honor is really on to something here that you know the one doctor concluded one thing based on these findings and one doctor concluded something else and so this court is tasked with conducting a substantial evidence review of the l g s decision and when the evidence can support either outcome certainly but except for when you reject a doctor you have to give subject subjective and legitimate reasons here you have a couple of examining physicians versus one kind of examining physician versus a non examining physicians who basically did the same test but came out with pretty different findings and i'm not sure that the l j reasons were reasonable in rejecting a couple over the the functional the scope of the summary conclusions and opinion but it's the comments the handwritten comments that flesh that out and the handwritten comments are mostly you can tell by reading them some of them are his reports but most of them here are objective observations or her findings those are the clinical findings that that support her opinion and once again the problem is that the a l j didn't explain why this inconsistency there where she said it wasn't supported by evidence but she didn't mention all these findings if you support it with regard to the question of did we address the work activity we didn't i didn't catch it i should have i did this hearing but he had he testified that he had never worked he had not worked for kids prior to his hip replacements and even that comment i was cited by from d in saying that your reasons john stand up but nonetheless he's faced with two got people saying one thing another person saying another thing but also of all of them seem to have been basically the same thing although at different times one possible explanation is said that she that the other two didn't do objective study studies and he they said all seem to have done the same thing right so now he has three people who all seem to have done the same essential thing which is talk to the guys make observations about what he has he looks a next to this man a status report and they all had they do his same reports about what he said about self he said he was very depressed he said he was very sad a great he was very sad he of a lousy life he was miserable about it they all agreed to that and they came out with a somewhat different bottom line what is the l g a supposed to do what's a good reason i guess my question suppose you if you suppose to choose between between them what would be a good reason for choosing between well an l j as required by regulation to weigh whether or not medical opinions are consistent with clinical objective findings i know once again that's the that's the at some difficulty at least in the beginning that is the job of the trier of fact in the trier of fact here didn't didn't fulfill her duty to actually fully weigh it and explain the basis of her decision she didn't explain why she if you can give it a reasonable through jim if explanation for why she was rejecting these two and giving more weight to the third one it just doesn't add up ok all right thank you very much