case is a violation of the treating physician regulation which is twenty c f r for zero four point fifteen twenty seven now in our reply brief i neglected to do a citation regarding their citation to camille which is a summary order case and that is local rule thirty two point one point one says summary workers are not precedent they are allowed to be cited and then we look to the cases that are in the cited in somewhat what is it you're relying on well in my reply brief i went through the various cases they cited i don't think that that's all we need to know yes but there's no case where a non examining physician that i found  that there pinion comes in and amounts to substantial evidence other than camille over requiring a ok to explain why he or she is rejecting the treating physician and brief they say there's three types of evidence that show that the administrative law judge properly evaluated the medical evidence one flintstone treating providers notes to testimony from the medical expert rug yano in th e plans own range of activities now regarding those i want to give an example which see here page eleven of my brief where dr edelstein the treating psychiatry did a mental status exam and there was found to be no grossly depressed state but there was some it was the date of that particular  the date of the exam to quicksand you're referring to i believe it was in two thousand and ten i don't have the exact date there was mild anxiety but it was not grossly depressed now throughout the defendant's brief they  to mental status exams and some of them are positive in terms of finding abnormal findings and some are not but in this particular no there had been a suicide gesture that mr flynn reported earlier in the week his assessment dr edelstein said that there was he was in an episode of emotional dysregulation with a suicide gesture earlier that week so the point being they have to be careful in terms of substituting judgement for u opinion during the period when your client has worked he reported to dr adelstein that he was handling the stress position the stress condition but that then there were other problems and ultimately be a ok gk lutes that the kind of work your client form is a low stress job with minimal coworker and little public con tack so that's how he views the limitations identified here tell us why that's not support not supported here not not supported by even his treating physician yes well the treating physician opined that mr flynn met the listing requirements he does not have to meet the listing requirement to be found to say he can be found disabled a step in the l j gave dr  little way now under the treating physician regulation treating physicians are given generally more weight than examining physicians and examining physicians are given more weight than an exam and that and so  zero but he he explained why he didn't think that was more to do in this case and you have to tell us what was wrong with that i mean for instance found that your client worked from april two thousand and eleven to november two thousand twelve and believe that would be a hurdle for your client clear now as i understand it he he ceased work in what wound up being a suicidal episode but there were high stress and public contact circumstances that contributed to all of well the main stress was that he was working i mean there's different time periods involved there's the period before but yes above the substantial gainful to the level not full time necessarily that work during that period has the primary probative weight of that is for that time period and if mr flynn had been found sable during a period of twelve continuous months or more before then that would have been a trial work period if he said stable after that that would also be another time period so while we could not argue that that was an unsuccessful work attempt because those are ones under six months it's salute jumped disorder was a mood disorder which he found to be bipolar but he said the exact diagnosis was not important what was exporting was the functional limitations which we actually agree with but i do think it's important to remember it's a mood disorder because  explains some some of the things such as the anger and it's also important to remember that the dail jay found bipolar disorder because that involves not just depressed episodes but the other end of the spectrum  i'm representing the commissioner of social security the commissioner's regulations and second circuit case law clearly provide that the opinion of a non examining medical expert can override the opinion the plan worked for a period of over a year and if you read the the notes of dr edelstein during that time flynn was doing well at that job he enjoyed it at the end of the year attempted suicide and suffered electro convulsive shock yes and the like to i'd like to address both of those issues first unfortunately mr flynn did attempt suicide however if you look at his notes and his testimony he went from a job where he was subordinate for lack of a better word and at what his boss went on medical leave at which point he took over a job because he had that experience the record is reserved for cases where medication has not been successful and the physicians at the hospital where he was treated used it for the same reason it was only used about one time it was successful to the point that he was released and in fact the hospital physicians who treated him agreed that he could go back to work a couple weeks after that so under those circumstances i submit that mr flynn suicide attempt and his men are not sufficient to show that he's disabled under the commission's regulations now missed that's because temporarily he was simple unskilled work with no i believe no contact with the general public at all only superficial brief contact with coworkers and supervisors that's not the high stress restaurant work that he was doing that caused him to keep the compensate so i think those two things together are why that episode is not sufficient to show that mr flynn is disabled now elder properly evaluated dr edelstein's opinions he had a very long analysis of the treatment notes he drew his own conclusions from the doctor's treatment well foote he did not he did however to speak to your point about interpret in the medical evidence he is a physician who interpreted the medical evidence and the properly relied on his opinion the  also noted flynn's activities of daily living over the course of the ten year period issue flynn served as a stay at home father to his wife's three children who were school age during most of that time he also worked in a workshop and helped and worked in his large garden these activities show that the l j has the ability it's excuse age his education and an r c i'm sorry he's held in the past and the jobs he's held in the past determined that he could not in fact with that r f c perform the jobs he's held in the past like being a cook which was what he was doing very many went to the area and all their jobs in the economy that there is to full and could hold according to the vocational expert he could hold the jobs of propriety smarter or laundry classifier or a janitor so he  be identified three jobs which exist in significant numbers in the national economy which is required to meet the test of not having to deal with coworkers that was part of the that the l g gave to the v so yes i'm not sure how can you do that read those jobs again one is a price marker the other is a laundry classifier and the third is a janitor only has to identify one job the janitor is essentially someone who cleans an office or home or what have you just work supervision as i understand the job the r f c does not require that he be unsupervised it's simply that his interactions with his supervisors be brief and superficial so not i would imagine not an ongoing or a daily  you one of the issues that the flynn is raising is brief is the materiality of alcohol use and that is something that the l g addressed now materiality of alcohol use is not an issue in this case because there was no finding that  disabled because of alcohol use however the record does show periodically abuse of alcohol by flann and self medicating with alcohol is not a fair comment that's not for me to interpret the the l j is the fact finder in this scenario and it is for the him to in fact or provide the facts with all due respect here it was reasonable for the l g a to look at this look at the opinions that were given to him or provided in support of one's application and note that the training providers who were in fact very familiar with flynn's history of drinking did not in fact fully address flynn's drinking it was only one of the reasons that the gave but it was a reasonable reason especially when added to the analysis of the treatment notes the activities of daily living and the opinions as a whole i'd like to yes really address some of the points that were made it was stated that the e c t was used because medication was not successful that is true but it was also true the duggar dr robi trust testified that doctors use it when the cases are severe and intractable whether they should was a separate question but the point was that would be their intent but what do we do with the determination by the doctors post the treatment that he could return to work i don't really think or for that they weren't the treating docs i think what they were saying is more than the converse that he should not return for the two weeks i would assume that they would defer to the treating providers at that point and then the next point they made was made was that the work that flynn was doing during the state teen months was greater in terms of functional aspects than what the ale limited him to that may be true but he had worked for twenty years as a cook and that was really his comfort zone and he was not working full time at the first job was in the system all assisted living facility and he tried it out he kind of dipped a foot in the water and then ended up working for eighteen months so i don't really find that persuasive now as far as again also did limit mr flynn in moderate ways in the same two functional areas to a moderate degree i should say in the same two functional areas as d which was the social and then the persistence aspects so i know they limited him that is dr edelstein and ms lewis to markedly which is the next category so to say that you should go from controlling weight being given to the treating physicians opinion to little weight which is where the l j ended up i'm not sure that's allowed under the regulations in the case law the next point she made was  he was stayed home dad but the notes in the of the treating providers show that this was his comfort zone he was easily emotionally dysregulation and so we don't know to what extent his activities were successful he testified at the hearings that you know he would start a project and then give up his twenty year history of work gives him a factor of credibility under the case law and therefore we should tend to believe him regarding the last point self medication i agree with that point the doctors did comment on that dr edelstein and miss they ignored it they were in a position he's in the room with them they can make that determination as to whether al called factor and they decided it was the underlying disorder he's probably trying to cope with the stressful situation date be moved forward somewhat given that he worked for a year and a half but i think the work of that quite a bit of a later time period so it's hard to say that it's just seems curious that he would be receiving benefits for a period when he worked so i'm just wondering if we were to agree with you and i'm not saying we will but if we were to agree with you that you establish disability is there a question here about the correct on there because of the long time period involved it is complicated normally if he'd been found disabled that during that period and the subsequent period the trial work period for you get nine months and five years and then you have an eight he has a three year period of extend the eligibility what you could find is he was disabled at the earlier date in the late later day and then it could be remitted to sort out periods of disability correct but the longer the treatment went on the stronger the opinion becomes of the treating psychiatrist thank you thank thank you both well reserved decision the last