excuse me into two thousand and twelve he left his job for medical reasons huge i don't know your time is going quickly so i'd like to tell you what's bothering me about this record the the the claimant here told the l j that he could not be up for more than about thirty minutes at a time that he couldn't lift more than a gallon of milk which would weigh between two and three pounds to go away and there doesn't seem to be any corroboration for that for for  the severely of the symptoms he described in any of the medical records his own doctor certainly the state's examining examining doctors they're just there just doesn't seem to be anybody who could confirm the severity of that  they put him on flexibility tests they put him they walked him watched him as he walked everybody acknowledges he's had back surgery we would expect there to be some consequences from that we understand he had problems with his ankles we understand he's being treated for depression all of that is acknowledged but not to the that the claimant has and so the mail j who heard the testimony from the claimant about what he could do and then read reviewed the medical records that i don't think you're credible i think you are over i think you have overstated what i'm looking at page i'm looking for example dr up holes report on page two sixty two of the record he says the symptoms the patient systems with respect to the lumbar spine not bad enough to warrant c t scan at this time then his treatment plan number four says i told the patient about removing the thought to sixty six he says i'm i'm taking i'm off work he says he's having a lot of stress j provided for rejecting dan argument is because it's an issue reserved to the commissioner well that's it that's at the all that's just simply an ultimate and ultimate question but he says i do recommend to be put on temporary disability page two seventy three and again at page two seventy six yes he says he acknowledged the doctor says i do not feel he can go back to any heavy work which he l j completely agreed with the doctor counsel could i ask where where that insight about the fundamental aspect of your case fits within the four issues that you presented in your brief because we can't we're not the but if you find someone some legal basis for saying that what the che did lacked substantial evidence where does that the four points here right district court abused its discretion by declining to remain you're not talking about three man right now are you know i'm not the number one is the rationale for discounting his allegations are conclusory you're not talking about that right now one point two of your brief is not what you're talking about right now that's which which part of which part of your brief are you talking about when you say that the whole issue here has to do with the hardware because they had when it was a question that your brief is what i'm asking you where were your brief to make that argument the climate is the reason that he was having a lot about problems and also he didn't address the ankle problem they have for they cannot rely on that examination by the state agency doubt in determining whether or not  examination is correct because i see that address that ok and we cannot rely on it thank you i didn't mean to do to take you out of your argument i just want to identify where you were thank you kalki you're down to just a few seconds would you like to reserve some time for for a bottle yes i did three minutes well you're down you're down you have six seconds left of your total time oh but i'm going to give you i'm going to give you some time for rebuttal ok ok when we reserve a time thank you thank you let's hear from the government good morning your honor some may have please the court daniel talbert on behalf of the apple enunciate berryhill this is a case where six different doctors gave opinions indicating that the claimant mr miller had non disabling impairments and limitations i want to get right to the points that my friend on the other side was discussing with the panel during his argument specifically the issues with dr paul's opinion and the issue with the claim in soft surgical hardware from his lumbar fusion in two thousand and ten the first point i want to make there is that the claimant has taken the position that the reason he stopped working in early two thousand and twelve was because his condition had deteriorated but as i think we know in the brief the record here shows that at the time the claimant stopped working in february to march two thousand and twelve objective imaging showed that the claimants lower back the fusion the hardware in there and everything was unchanged from december of two thousand and ten so the assertion that he stopped working in february late february early march two thousand and twelve was because of some deterioration in that condition the record actually undermines that and it shows instead on page up to forty seven i think of the administrative record that the claimant stopped working because he was being harassed and virtually abused and mistreated by some of his coworkers and was stressed out at work because of that to them the situation was a rather deplorable situation i think anyone looking at the record in looking at what was happening with his coworkers would agree that most people probably would want to stop working if they were in that situation so i just want to make that point and point out that that's what the record shows there with respect to and eleven the claimant declined and said well my symptoms aren't severe enough to warrant it but he seems to be arguing that the ale j doesn't address this that seems to be your opponent's main argument so the i would say the l t does address this actually and this on i know the elegy mentions i'm having a little bit of difficulty finding it right now unfortunately but the l g mentions the claimant declined to reseed with aggressive treatment declined to proceed with the surgery and that is that is certainly indicative of a finding of and the finding of claimants allegations of disabling pain were not consistent with the record i'll try to find that exact reference page fourteen of the administrative record where that's where the notes that the claimant declined to have the surgery yes it's on the bottom of page fourteen moreover although the record shows that the claimants treating physician recommended that he undergo hardware move a surgery the claimant reported that he does not wish to undergo this at the that dr paul's opinions throughout the record they don't state well because of the surgical hardware because of this whatever's going on there this claimant has disabling pain he can't do any work can't do anything at all he said that the claimant couldn't go back to heavy findings are actually fairly consistent with that of other doctors it just doesn't support mr miller's claims of as to how disabled he is everybody agrees he's probably and probably in some pain you don't undergo back surgery and and have problems with your ankles like he's got and nobody ought to dispute the the reality of depression but it's just the question is you know can only really lift can he really only lift two to three pounds and does he have to lie down all day that's right your honor we agree entirely with that mean the the disagreed with dr paul only to the extent the doctor will paula saying well he's disabled or he should be on temporary disability and the algae said well that's not that's an issue that's reserved to the commissioner and that's not consistent with what the record shows for really as as your honor sorry that  that seems like sort of a technical quibble with what dr paul does because i don't really see him as sort of usurping the the commissioner's prerogatives here so much as just saying yeah i recommend that that maybe shouldn't you should go back to be back to work full time or he needs to have lighter work than what he's he's currently got sure and again that's consistent with what the l g a concluded in his decision issue the only other issue i want to talk about the last panel has questions is the credibility or symptom of valuation on the climate to me the argument about how is that that was his main focus what he wanted specifically to focus on and at the just didn't consider the claimant allegations our position is the l j certainly did and gave a number of good reasons and reasons that were clearly supported by substantial evidence supported by this court's case law and by the regulations your honor noted the claimants rather extreme allegations of what limitations he had and how they're just inconsistent with whatever the doctor said i'd also like to point out the findings of some of the magnification from consultation examiner dr we're gana with his opinion the fact that the claimants the claimant generally had did have fairly conservative treatment during the relevant period and that treatment was fairly effective in resolving and keeping his pain out rather low levels what about the new evidence related to his includes the surface to after the o j ruled  first primary reason the district court addressed was that it related to a later period it wasn't applicable to the period under review by the ala jay but on what i'm sorry just let me on that point there but the claima definitely had the lumps or whatever it was in his ankle at the time of the hearing radio actually showed showed i think to the o j isn't that the same condition for which he was for which he later got the surgery so that looks it looks like a it was likely the same condition there's no indication before in the record before the l j that anyone recommended surgery so to the extent that the condition worsened after the algaes decision to require surgery again that that wouldn't be a material and wouldn't work wouldn't remain for new material evidence but also point out that even when the claimant had surgery after the algaes decision for his ankle as we know it in the brief the surgery seemed to be successful the only residual effect was that he had some numbness and the doctors told him well you should go to physical therapy which is a conservative measure and you shouldn't walk barefoot he should wear soft padded shoes so if the surgery if if even if you have this condition that would have warranted surgery during the relevant period the fact that the surgery was effective and that there was no workplace limitations or functional restrictions imposed on him other than wearing comfortable shoes and not walking barefoot indicates that that's there just that later evidence even if the understanding is that it is but i can't represent that with absolute certainty that's not in the record but absolutely what he should have done was file a new application and the agency would consider that and consider whether his condition worsened and he had other symptoms other