definition of germane relevant and appropriate to produce objective standard it is a pretty subjective standard yes so we we would argue that in order to be germane to be relevant the activities that benefit would have to demonstrate some actual inconsistency with the opinion and there are a couple of cases that this court has recently decided that i included in my twenty eight jail letter submitted yesterday which would be determined to not be inconsistent with the opinions that were offered by the treating sources in those cases so the court said these limited activities are entirely consistent with the medical opinion interview  between those being was the one of the identified activities inconsistent at all whether that reaches a domain standard or a specific and legitimate standard so let me ask you this i thought vanity when i read her report and when i damocles opinion is it vision's a person who could be worse so she notes that ms adams has marked limitations in concentration persistence and pace but she did not check the box that said extreme so there is some room for growth in her in her deterioration so she's not unable to do anything at all if ms danica is opinion had said she is unable to interact with any individual ever and unable to engage in any activities out of her room and the judge is able to point to some activities outside of her room and with other individuals then that would have been inconsistent with she said she would struggle in work that was who her bottom markets the question was would she be able to sustain these abilities over a forty hour workweek on an ongoing basis and that was the question that she was asked you know in terms of being able to sustain concentration to be able to interact with coworkers in the workplace and she checked a number of boxes and this is on page one thirty two of the excerpt of records where that those check boxes appear and so i would argue that the minimal activities that were identified throughout the record are not inconsistent with her opinion that miss adams is not able to maintain a forty hour work week so she do some of the hours during the day i think the record is very what does the record show the record shows very little about that there was testimony at the hearing that ms adams said she picks up cans not every day she said some days she says each week she's picking up cans to redeem for nickels but the record is very limited about how often she was actually doing this there was another the other the other  activity odd jobs odd jobs yeah and the other records show about jobs it again shows very little her testimony at the hearing was that she would occasionally do dishes or throw away dishes for one of her neighbors in exchange for either money or marijuana and that is about all that the record demonstrates is in terms of what she was doing so we would submit that this is insufficient evidence to meet the the substantial evidence standard and think well how does it clarify the way in which this standard should be applied then yes i think it clarifies that there has to be some sort of actual inconsistency that they are going to look at what is in the opinion what are the activities are those inconsistent with each other i think that clarifies it but i don't think that that changes that standard at all that there has to be if there is if you're going to use an inconsistency there has to be some actual inconsistency your main reasons right and he did it down to five the activities of attending church and shopping so i think that it was specific enough but i don't think that there was a specific enough identification of how that was in con explanation right do you think that they did that here i do not i think that i mean the very limited statement that they gave was that the opinion was inconsistent with daily activities and gave the example of doing odd jobs i think we can all agree that giving an example does indicate including but not limited to and he did make references to other activities throughout whole undercurrent of her use of drugs marijuana other such as to what extent is the in play here i think that it's not in play at all in the rejection of miss accuse opinion because it is not something that the l j relied on in a way that the commissioner has defended i think that upon remain and because we are just asking that the case be reminded for further proceedings i think on remain and her substance abuse will be considered in terms of whether she meets the commissioner standard of disability but i don't think it has anything to do with the rejection morning may it please the court jeff staples on behalf of the commissioner we talked a little bit about the germane standard and whatever pope i did to clarify that the germane standard remains the lowest standard that this court has imposed on a nail j s reason giving there's clear and convincing reasons and then below that there's pacific and legitimate and finally the lowest standard is germane and that applies to the court's review of the  g s reasons not to give any reason i'm sorry what you know jay can give any reason and say oh that's a german reason and now i don't have to i don't have to consider is that what you're saying if the  reason that's right you're right it doesn't popa say that he has to explain why he's what he's doing and he has to explain why he's giving less weight to another source opinion and they all jay did that here they l j gave fo out three that's right but it is the only we're down to the one while your honor it's worth pointing out that this court's review is de novo i understand the court's not bound by that district court's reasoning so my understanding with the commissioner didn't seem to be too impressed with  the other three reasons the commissioner admitted that some of the reasons were not good but i think it's worth pointing out that the failure to challenge even challenge all of the reasons is problematic so when they'll jay says something like anneke is not an acceptable medical source and then they're going to give us more weight to a doctor who was an acceptable medical source dr gosnell that under the commissioner's social security ruling zero six zero three p that's that's a valid reason to give less weight to another source over an acceptable medical source so i'm just pointing out that this court is not bound by the district court determination on the validity of the other reasons so turning though focus is seems to be on what the rejection of danica that's correct and visa v the daily activities living and she notes that in her in her assessment how does that factor into all of this so miss danica he says quote ms adams is able to do her a d l with little activity there's no explanation some other things like doing odd jobs for instance we're talking about picking up cans that was a question from earlier and explain to me why they're so inconsistent i don't quite get it because i'd read through the wreckage forget what she was doing to pick up cans i mean you can pick up cans walking down your block right and you pick up a few cans you cannot make good what you can go all over the neighborhood you see my neighborhood we see these guys with shopping carts they go house to house to house they have different back three different bottles they have cans they have other things yes your honor in the red oh we don't we don't have any then this record we don't know anything that's a respectfully i disagree that we don't know what do we know or honor we know that she said she picks up on average fifteen dollars a day in cans which translates to three hundred cans every day and she said she wasn't doing it every single day but on an average that is not just walking down the street and picking up a few cans that you happen to come across that is a concerted effort over many hours to accomplish that task on a daily basis so when mr nique says she can't concentrate she has difficulty following through with tasks this kind of activity of picking up three g found that she could be recycled or so when they is considering these things and they l j i think brought that up at the ministry of hearing look this vocational expert said that you could be a recycler what do you think about that and of course miss adams did not think that she should but the point is that the l j is entitle to draw inferences from the fact that miss adams admitted at the hearing that she was picking up fifteen dollars of cans a day in his decision and so when the l j says no i give less weight to this opinion that you can't concentrate at all you lose focus almost immediately you can't follow through on tasks i don't agree with that i think you're can picking up and some other odd jobs and other activities shows that you can do at least simple one to two step tasks at the lowest reasoning level in the dictionary of occupational titles so although the i agree with you your honor the record is not as developed as it possibly could be but it contains enough information the fifteen dollars a day in cannes that is enough information for the l j to draw a reasonable inference and provide a reason that certainly satisfies the lowest germane standard of reason in as you were pointing out the l g has to explain something and so here the ale jay did explain the algae explained that this opinion is inconsistent with the activities and when the algae goes into what this substance of that opinion the is talking about misogyny says that ms adams has problems following through with tasks very poor concentration market limitations and concentration and so it's reasonable to contrast those opinions with some of these odd jobs and other activities that show at least somewhat more abilities in terms of concentration and persistence so whether clarified elucidated meets that standard and so because the activities are actually inconsistent that i think that i think that was what my colleague was driving at the activities have to be actually inconsistent under pope under any of the other cases when the standard is germane because the activities here are actually inconsistent those those activities that can picking up that she was performing there's no way to do that in a manner that's consistent with mr nice opinion and because that's the case the elders decision is supported by substantial evidence or him and we would ask the court to affirm the district court's judgment ok thank you thank you so just to address the the can picking up i disagree that there is no way that she could do that and still be consistent with miss damocles opinion her opinion addresses and ability to maintain work over a forty hour work week there is no evidence about what was involved with ms adams picking up her cans this is not done on a schedule that is imposed by anyone done on her own it's unclear how much she really was doing each day so i think that that does not create any inconsistency the other the other point would be that they did not route his opinion in her picking up cans he never mentioned it in his decision it was not mentioned in the first decision or the second decision and i think the chain or you would really be vital here including the language that the court cannot be expected to chisel what must