we move to our th of six cases for today so the new parties come in and i'm going to quote that the claimant statements covering the intensity persistence and limiting effects of the auditorium who said nations are found to be not entirely consistent with the medical evidence and their evidence in the record and quote is this of finding by the a supposedly your honor and then the problem i have with that is the same problem i have with the state agency findings and with all of the findings made in the decision itself because the ail changed entire assessment of the s medications were working better and then the the consultant examination of dr reid from january of twenty eight he he never assessed the rest of the records so the finding there is the same problem with the finding of the rest of us which is he doesn't go into the fact that mr ricci has had repeated episodes of the compensation where they've had changes medications on multiple occasions he has had suicidal we then go on to the fact that he relies on the state agency psychologists and i would point out the supplemental material from the commissioner indicates that the l j can alliance agency assessments and then deed  fitzpatrick the state agency creates what's called the disability determination explanation or d d e which is an in the a section of the record that is supposed to be a set of findings that are made both by the examiner as well as by the medical professionals were guarding the claimant's condition in their they outline what records they considered and in this particular case we look at the  mr duncan why don't you just rewind about thirty seconds to make your point i know your own vomit unplug your video which is fine but we want to make sure we get the point you're making so can you repeat  it i don't know what happened when the video your honor yeah the court the clerk's office personnel in the courtroom just stopped the video to increase your bandwidth on the audio so it's nothing you did on your end so we have we still have the benefit of course of you being with us but we want to make sure we got your  point so the only finding the dr fitzpatrick made that was different from the initial evaluation was done by dr donahue was one find and it's  at page five ninety one dollars even that record indicated auditory hallucinations reported so even that one finding she made and that's the basis for her entire finding more or less is that it is inconsistent with the f record there is no indication that she considered the on this rd record where he's talking about hurting his girlfriend sharp objects that is known he's hearing voices and on a seventeen he also gives way to dr marie now the problem i have with dr reed is this and thankfully she put this in because it's almost never seen a and some of or there's five hundred some pages of mental health records and yet dr have any idea and yet we look at this she doesn't put anything in there except she notes temblor seventy worsening whole loosen ations and sleep and that's the only revenants we have it's on page one thousand and twenty of the record have detailed assessments or anything the judge can go through and a show in his decision how they're consistent with the record he can also if the state agency doctors didn't cite to them individual courtroom we're having a hard time hearing you derek is there anything we can do to improve that connection ok let's just hold on one second given weight with treating physicians report based upon this record i would be probably summarily deny by this court yet somehow or another we have this idea that the state agency doctors lines the basic criteria for performance on skill were mr duncan maintaining attention for two hours yes can you hear me ok it i have a quick i have a question for you about a statement you make in your in your opening brief and i'm asking the question because i want to try to understand what's in front of us on appeal on page two of your brief in a in a footnote footnote to you rob serve that there was a nd issue that was raised before the district court but is abandoned on appeal at well here's what here's why i'm asking the question both here's what in the work that we did to prepare for the case it looked to me like the nd issue that you raised in the district court was one challenging the way the l j weighed the evidence and if you're telling us that that is now at a point that you want to waive on appeal i want to be clear about that because it seems like the lion's share of your argument is all about challenging how the l j weight the evidence so in other words i'm a i'm a bit confused and i know our connection is not great here maybe you could submit a letter to the court or after the argument just to you know clarifying the point you're making there because i want to make sure that we understand the scope of appeal include any limitations regarding concentration persistence and aids because he relied on the state agency doctors who did not a particularly anything other than these particular limitations so his reliance on the state agency that is where he up with the limitations of that were contained in the r f c and to that extent the failure to provide any real limitations on concentration persistence and his is directly related to his reliance on the state agency doctors ok why don't we hear from a scot free and we'll come back to you for a couple of minutes we'll give you and ran through your time but i'm going to give you a couple minutes we've had a bad connection here some a scot free why don't you go ahead and make your your comments and here are gene godfrey on behalf of the commissioner social security i want to start out by noti stated that he as commander auditory hallucinations telling him pure earth itself telling him to hurt others i mean this seems to be a very big elephant in the room that oh might not have been did not warrant any additional limitations he acknowledged that although mr h never courted difficulty concentrating all of the objective medical evidence demonstrated that he had intact attention and concentration  he went underwent neuro psychological evaluation and december two thousand and fourteen which revealed that only slightly below average overall attention intact memory and no difficulty following tasks direction he received treatment with a therapist and a psychiatrist and the treatment records consistently documented intact attention and concentration no evidence of delusions and paranoia and although they did document reports of waxing and waning obvious choice hallucinations the treatment providers consistently found no behavior suggesting a response to internal stimuli and the findings of the january reid and dr fitzpatrick also support that finding what it broke down read who only weeks twenty nine pages of a six hundred and ninety seven page record what if i'd only read four gone through arms and mental status examination of mr h which he fails to acknowledge anywhere in his briefs and so regardless of the records that she did or did not consider her own examination finding support her opinion she found that mr h i had no limitation in his ability to carry out simple instructions and only mild limitation in his ability to make simple work related decision soley based on his subjective or courts of hallucinations and there is no objective evidence or medical opinion of events that support that allegation and just social security act explains that a claim and own subjective symptoms are insufficient alone to establish just the ability and so here we have his reports that loose nations rendered him to stabled but there is nothing else to support that the objective medical evidence simply does not support the subjective allegations and he did not challenge the subjective symptom analysis and partly he also fails to identify it as not challenge are you talking about on appeal or you talking about him for the l j i just i want to make sure i'm not confused with this waiver point that's made in the brief well he didn't raise a subject at some time challenge at the district court or before this c what did did the agency did you come into this appeal this morning thinking that anything has been waived yet ok and what is that something that's been waived well m understand how you can come in to the th circuit and say i'm not waiving or i'm waving everything having to do with the weighing of medical evidence and then write a thirty or forty page brief challenging the wain of the medical evidence i don't i don't so i'm not i'm not sure as i sit here right now what's before us and what's not before us well i agree but waiver aside the arguments that he raises are without merit and ok very well miss scott free thank you mr duncan can you hear us by telephone yes your honor i can can you mind starting with that question that i that i'm stuck on i don't understand what you were intending to convey to the court with your waiver footnote and if you made a mistake you made a mistake but what is it that you think is in front of us on appeal what i believe your honor is before the court is the specific r f c finding the a l j and the support or what he used in order to support that and in this particular case and is outlined i believe in what i was able to catch from ms godfrey there saying that the l g a could rely on the state agency doctor's opinions because they said the only limitation none of the evidence in this case supports those findings the judge should have continued on and went into the martin our assessment and still examined all four concentration then persistence then pace we're talking about in on the visual there would not have you have you waived anything on appeal in your mind as far as i know i have not waived anything that's pertaining to the specific findings outlined and i just wanted to ok now to hold on hold on do you withdraw footnote number two in your brief yes  i have no idea of what you have waves to what you think you have swayze what you have dropped out it's the case i had no idea  mix i apologize for honors i guess what i'm saying is where is the language in the footnote was an articulate i am pleased to did not to raise it as a separate issue but it was supposed to be all one big issue so that it was clear that i was not what you were dropping i just didn't want to have a separate articulation issue regarding the overall weight of the should have been in there in retrospect because in looking at the brief there really wasn't a separate issue that was proceeding waived so i guess that i would withdraw that it was that it should have been there i guess i didn't brief in my lobby trying to answer telephones at that particular time i thought i had made sure everything was correct because we were on shutdown when the brief was being written  apologize i don't think i was really trying to wave anything it was more an argument or a point of trying to steer the court and understanding that it was one argument not multiple arguments that was the same i didn't  arguments the way i did in the district court a thanks to both counsel we will will take the case under advisement from where we're at here and if we need to issue an order we will but the court is going to have to discuss that to talk about whether we need any further clarification so thanks to both counsel will move to our