complicated cases we know that twenty percent of the population lives in the ninth district and twenty five percent circuit circuit and twenty five percent of cases federal cases  pretty obvious the first issue is whether an l g can make a medical determination of the roles of dale jr to weigh the evidence and not stand in for a doctor social security has clear and weigh the evidence in this case they are not weigh the evidence i'll bring it down very specifically but let me just tell you the other two issues the other side issue is that monica had the right to have all the evidence that was used by the l g a before and we've had to defend this case without the whole record on the third one is that the commissioner uses the dictionary of occupational titles that's their choice it's research by the department of labor and the minimum requirement for a job is that you have basic risk magick skills basic mathematical skills and basically which schools that's a commission  the commission has the burden of showing the jobs that the claimant meets this now i'm going to go specifically through this monica pelligrini is a someone who's worked her whole life she has cognitive physical and psychological disability there's no argument about that she graduated from seventh grade she's worked for her brother in law helping with an apartment complex and she developed  and she has severe depression she has fibromyalgia she has a number of severe impairment but what happened in this case was that her condition kept getting worse so she applied for disability in two thousand and thirteen and she was denied she reapplied two weeks after the case was was denying she got a new application because her she had these severe migraines and headaches that were becoming more and more debilitating and her psychological state was getting really bad she didn't want to leave the house she had a queer phobia she had she couldn't stand in line she had panic attacks and depression so her because she had physical mental and cognitive problems together it's a very very convoluted and everyone got very confused when they made this decision so what happened was right before the hearing four months before the second  hearing she had she couldn't see out the out of her eyes except for a tiny tunnel she went to her doctor and her doctor took her to quickly had they had m r i s and they realized that she had a pituitary tumor pituitary issue i think that she has the burden of showing that this condition would sustain itself for least twelve months right well she does have the burden of it but then she has this extra issue that it has to have lasted or will last a year and a half so if we take the time if we use the microphones which we don't have a medical expert to say that that tumor caused it but since it's resting on the optic nerve and  we have when the social security center to doctor i tell doctor tells a psychologist she gave her complete full evaluation and found that because of her cognitive problems she has a very she can basically read or write at a i found the kind of unusual you don't usually see that type of thing i would think so since social security paid for doctor i tell young to do an evaluation and there's no other psychologist or in the record that she was the only one period after the initial sentence but that's not true in fact she was taking medication right she was taking medication and it was and she said it wasn't it was helpful but not all that helpful she's doing her very best and she also had no insurance she  insurance and she moved from texas to arizona so there was a whole lot of issue about why didn't she submit more evidence she didn't have any insurance so she couldn't submit psychologist you statements that monica me but you psychologist can't make an evaluation without talking to the client that would be an impossibility because it is a mental situation and a psychologist  their part of their role is to document what their findings are they can't go in and say well you're schizophrenia i just know it they have to say well you said this and said that and said this and then it also shows that so it's  part of their job so to say that because monica pilgrim made statements to the psychologist and that's why it's not valid that's that's not not credible so i think that's the agency agency will talk to you about it but  to have a basis for doesn't change for just counting what you tell them right right so the basis seems to be the notion that she wasn't getting treatment but she was getting treatment she was getting treatment right right i mean speaking to the choir public and so on when she's afraid to leave the house because of her physical problems because she's afraid she and so we have the basic problem that that's on the record she stated that there's no reason not to believe that doctor i tell supported it no one said they saw her out you know doing a job full time that's something that needed to be addressed and was not and is required by so he following pill greene retains the ability to understand and carry out support instructions and tasks why is that not correct ok so that's part of the mental health listings a and b so if you i personally feel this is not a mental determination even if you don't meet the listing because you know you can do some things but you can't you have to show they all she has to show that she could do it consistently for six hours a day that she could if you wash your clothes you'd have to wash your clothes six hours a day or if you went out and you know rode your bicycle you'd have to write it six hours a day so this court's stated that repeatedly that just because someone is able to live and function at home in a protective environment that doesn't carry over to a job and they all g s responsibility is discussing why and that wasn't done i mean there were no limitations provided to the vocational expert so we have this kind of case i'm left not her due process rights with out a full hearing i don't know what was taken out and but then i wasn't given the full case and i asked for this the district court and they denied me the right to it so my client's right and so we have that and then we have a problem with the dictionary of occupational titles she can't read and write at a level she can't do basic math and the issue is well they're saying well you know she can count by twos but so she can't count by three but basic arithmetic you need to use to use in threes and the dictionary  even requires you to multiply and divide it a basic well so we have mental illness the problem with the duration and her vision and we don't have a record addressed and we don't have a we don't have a proper record i don't have the full record i think she was not given her rights were were abused so i like to stop if possible asking questions thank you very much morning your honour's may please the court joseph lang camera on behalf of the commissioner like to start with the court's line of questioning where we left off with dr idol's opinion the question judge will i believe you asked what is the standard that this court applies to examining physicians such as dr idle the standard here is the other has to provide specific and legitimate reasons and the reason that's bad is the standard is because we do actually have medical consultants on behalf of the state agency that have provided but you have not examining physicians are you think if i read this correctly that the ale j relied upon the county and the psychologists consulting examinations conclusion which says the following she cannot sustain concentration and persist in work related activity at a reasonable she cannot maintain effective social interaction on a consistent and independent basis the supervisors coworkers and the public will deal with normal pressures in a competitive world setting why is that not correct and why should that not carry the day so the so the l j and the reason that's not correct is because the l g provided specific and legitimate reasons for what county that weren't so on page twenty nine of the supplemental record which is page twelve of the o'jays decision the l g a goes through dr idol's opinions and acknowledges that he's giving partial weight to the portion of dr idol's opinion that states that she's essentially limited to simple routine work and that that is reflected in the r f c in this case but then with respect to judge block with respect to your question about the limitations that were discounted this is what the o j says and i'm reading from the top of that page where dr idles limitation about being unable to  the examination itself dr idle reported that she could report for words right after hearing them could remember her address and social security number she could repeat three digits forwards and four digits backwards without errors the  refers to that in that paragraph there the the l g gives another reason where about in the middle of that paragraph he states that the treating record does not support claimant statements to dr idle that she quote unquote walks around twenty four seven thinking i'm stupid believe was below normal she was able to identify simple the similarities but not complex similarities cannot interpret common proverbs so looks like he can she conducted a full medical examination why should you not discounting that the conclusions that dr idol ultimately drew anyone to this of the internal in her assessment that count the made that conclusion and that's what you carry the day so to speak i would point the court to two points that the o j was making number one as judge block as you pointed out yes there was an internal inconsistency for example she said that this bill greene cannot concentrate but there are findings within that report that aren't that are at tension with that and that's with respect to some of the mental testing that the i g points out here under this court's bayless decision that is a valid reason for discounting and examining source opinion i would draw the court's attention also to the treatment records which the l g pointed out do not support all of dr idol's conclusions as well  medications she was john a psychiatric medication she did report so aside ideation at different times the fact that she didn't report them sometimes she didn't doesn't prove that she didn't have them now  consistently as with the past but more and she didn't have health insurance which she never mentions as to why she didn't have psychotherapy that was and she was asked that and i believe that's what she said i don't have any health insurance  o and i know we have case law saying that that can't be held against somebody so it isn't true that she didn't have mental health treatment she was taking whatever kinds of medication and she said didn't do it january twenty seventh two thousand and fifteen through the date of the decision what were her mental impairment what were the functional limitations because a lot of there's a lot of citation in this case to which was not in the old record is supported by past records i mean i think if there hadn't been an earlier application we certainly would have considered those records and so why don't we consider them now because when you because it's because it's a prior adjudicated period that is final and as of as it went but so what those same records were in this record as i understand it and he doctor and the i am i did go through them and you can't this count them as being relevant whether it's doctor i chose opinions were supported by the record they were certainly supported by the fact that you know in a not very distant past she did have psychotherapy and she  have reports suicidal and ation and she had to prescribe all these different kinds of medication so why why are we just counting those things at least to the degree that they support doctor i tell because so here's a map on page one hundred and again this is from the old decision this is about a prior educated period but it says that she that there was a mental status examination that miss that somebody miss smith conducted  the findings that some of the finds that the algae is making there the only actually found again this is the decision that she had major depressive disorder and the o j looks at all of her allegations from twenty thirteen through cited them all he did recite them for context correct right so that's a question for context in terms of whether they support dr i tell i mean are we it's not pertinent that these records  at least you know indicate that she did have psychotherapy and she was treated for mental health illnesses because the i mean where i get stuck is when he says that she wasn't getting mental health treatment i don't understand timeframe in this case so in early january twenty fifth team this is right before the relevant time frame in this case she added she at she was alert conversational normal memory appropriate effect she said she was doing well on medication that's on page six forty nine feb twenty fifteen she had a normal mood that's on page seven zero six december two thousand and fifteen this is right before the elders decision she reported quote unquote mild anxiety and depression that is that is out of line with what dr idle found earlier in the year with respect to how she can concentrate she can be around people if she has mild anxiety at that point regardless of whether or not she was seeking regular treatment regardless of what medication she was on it the l g s decision on this point was supported by substantial evidence that was a specific and legitimate reason that the ira flatow so cool if i could before you complete i'd like to take you back to the legal standard for when one could credit a consulting agency doctor over consulting agency doctor over and examining doctor when the first person didn't examine the patient that there had to be court's cases case law on this is clear if there if there is a contradictory or if if an examining doctor like dr idle in this case if there are current if there are contrary medical opinions that call that opinion and to question those that it can be a non examining state agency doctor to that triggers that specific and legitimate standard which is lower than the clear you are necessarily relying in part on subjective complaints and it's true that is exactly what doc says but buck is distinguishable on its facts and the reason is because of this in buck the ale jay found that the doctor partially relied on subjective complaints and those were the facts and buck the facts in this case with the o j found was that it seemed that that doctor ita largely relied if not soley on  evaluation and holds them separately but an evaluation is a complete statement what's underlying this whole situation is that the commissioner argues that the case was race judicata but the own rules say that a case where there's a new impairment or worsening of impairment for a whole year a case can be reopened the l j used the records discussed the situation and now could be discounted because there was some internal inconsistency in her report and i think that's what he's arguing what you say about i'm saying you can't pick apart a record and that because someone can count backwards does not mean that their evaluation is inconsistent a psychologist has to report everything and there's you know a different mental conditions can produce  nonetheless a conclusion was that she was really not able to function yes yes i definitely think that you don't have to never be able to count anything and still be depressed i don't i don't personally see this is in can distant but the fact this whole fact of reopening and not reopening the case because a client wanted to get benefits faster and quickly went and reapplied i think this court would be really helpful if you would remain on this case for immediate benefits because this type of situation needs to get cleared up if the question what do you mean ok so i don't understand a time question ok so the commissioner says in the regulations that any time within a year a claimant for good cause the case can be reopened if your condition gets worse because that's a nuke new situation and then the whole case is reviewed again and that's commonly done the commissioner made that stand because of this otherwise we would have no one would be able to have medical records they would only have to be have all their medical records from that date on it's not it's not logical a person's condition often doesn't get discovered  maybe immediately what difference does it make if it's three on this case it makes a big difference because the commissioners whole argument is based on the fact that those medical records you can't look at them because they're part of the preview but they all show you just look at  and i'd say that what i mean i don't understand why i had understood that reopening the old one meant that you would go back to the earlier filing jane but you with even without reopening that doesn't tell you let you just take the records that are in the record and through as if they're reintroducing the record in just throw him out i didn't do that either he didn't throw them out he may have misused them but he didn't throw him out i agree with you but commissioner argues throughout his brief