may please the court my name is a time castle ya niche i'm representing kerry underhill in this appeal underhill is a disabled veteran he served in the army as a tank crew man commander for four years he worked as a police officer for eight years and he then served in the u s navy for sixteen years as a security officer the v a found him unemployable since february of two thousand and four due to due to the combined effects of his service connected impairments i'd like now focus on like the biggest errors by the l g here first of all as part of the v a evaluation process mr underhill was evaluated by a doctor dr reza vonnie who in his report listed significant clinical findings including a positive straight leg raise test and other things so how are you prejudiced by dr resigned he's not being treated expressly right here is the difference i see between those two opinions dr is vonnie was evaluating his spine he was  any basic work activity so finding it's a severe impairment doesn't tell us how severe doesn't tell us how to what extent it affects him and it doesn't address the fact that d some findings were very significant a positive straight leg raise test is a very significant neurological finding and so those were you can't it doesn't seem right you keep an able to can't lower it doesn't seem right to me either i'm trying to figure out where the prejudice was if if in fact the o j eventually found that your client had him very impairments that doctor is vonnie described well first of all dr sophos based his opinion he didn't examine he did not examine his back and so he based his opinion on the the other stuff and then it was a couple months later that dr response examined his backs out limbs seems a little in congress to for the a l j to rely on an opinion that was made by someone who didn't examine his back and that it did it before never looked at the examination the results from doctor is vonnie is examination and then once this information was reviewed by the v the v a concluded that he was unemployable as a result of that right now it's a separate issue that is a separate issue so for an l g to not mention once again there's you know where in the l g s decision does he treating physician discusses a person's discuss his clinical findings and they allocate can't just completely not mention any of them and then if in less if this decision incorporated all of the clinical findings i think that would be harmless error but when mail what it but if an l j doesn't mention any of the clinical findings and doesn't incorporate the effect of those clinical findings that is harmful or in this case the clinical findings we're talking about were not from the treating physician they were from an examining physician but i think the same theory would apply when there's very significant clinical findings in l j is silent that's not analysis that's nothing we don't we can't scare us here how did the a way that evidence because he didn't there's no evidence that he weighed that evidence at all there's not one word in his entire decision that mentions any of the findings that mention sector a doctor is vonnie it's like he didn't exist so i think that that's problematic on that issue i would like and you had a question by response doctor as funny because i would like to turn to the other issue what i think's very important is there were two treating our m p s ms bennett and moves tell mrs bennett first treated him still when he was at the when he was still in the military and then she went off into private practice and then he ended up going to her again miss tel was throughout the entire times in the in the military system both of them were asked to complete questionnaires in which were to describe what they thought his limitations were ms tell said that he she thought he would miss one day of work per month and he was limited to sedentary work ms b that she thought he would miss the four days of work per month and that he was limited to less than sedentary work ok well look at each of them separately first of all will go back to miss tell it was less limitation but it was a limitation to sedentary work at his age that limitation is sufficient to require a finding of disability but the l g rejected her opinion now i have to say they all just wasn't completely off on that because he pointed to the fact that there were a lot of clinical findings supporting this tells opinion there are no i couldn't find them but she was part of a treatment team at the v a so she had access to all of the had a different opinion i guess why wasn't and the o j said i'd i reject there because it's inconsistent with with other evidence in the record why is not a sufficient basis for rejection of the nurse practitioners because d not he was a one time examiner who did not know anything about the back examination that took place after he examined and evaluated the social security x arcane hierarchy  his reason may be wrong but we don't we don't review that we just review to see whether he gave a germane reason he did not give any opinion on the limitations caused by under hills back impairment none and so they did give opinions on how he was limited by back impairment could you i don't want to tick you off a topic you would talk about but i'm interested in hearing your argument about the treatment of the v disability finding which you could you direct some time ok well what's interesting it kind of circles back because the bigger error there isn't just because the v a find somebody unemployable doesn't mean that an l g has to adopt that but he does have to give persuasive reasons for not accepting it and what reasons it is a ok give he basically said it's a different program they have different rules well of course it's a different program and they have different rules that's not a persuasive reason but the other twenty some he that and the claimant as i recall and i'm not looking at it now but he said it's a different program and many of the items listed by the v a and were not discussed by the claimant and are are found that problematic because all of those things were in the medical records even though they weren't discussed in testimony but i did view that as a separate i know i can't tell you that he did and i'm recalling i think he did i think you mention him in his disability reports but the main thing that you do he provided them with the v a you know the v a evaluation which showed that these were the these were the reason he was found disabled by the v a was based on a b c d e f g he's the no the the l g a was certainly on notice of the fact that those were all contributing  the extent the a l j looked at these multiple items in the v a report he held it was entitled to do that is is that right that is correct they can independently evaluate them but he didn't give he didn't really independently evaluate them in fact he chose not to he didn't ask any questions about these impairments and then after he didn't ask any questions he said they weren't even severe he said they didn't even cause a minimal  person the audiologist the licensed audiologist who did the testing said that the results he was getting were wrong it was it was exaggerated use the word exaggeration or somebody used a word that was it wasn't right and then he instructed him that he wasn't cooperating is the word he used then he had to begin and how the testing worked and then all the testing went through normally went through correctly and that was the final conclusion but the able to latched onto that one word that said at first he wasn't being cooperative because he didn't apparently he didn't understand the testing protocol and the thing about that i'm sorry the l g a also said that there wasn't a medical diagnosis of tonight is that right that's right but as i as i point will be required to discuss the underlying medical evidence that goes into the v a decision so if we sent this out there once again this is nothing that's not in effect for this case none of that yes governor i was just going to ask if we if this case went back to the agency would those rules be in effect no they would not necessarily apply to cases filed after spiled after now i should make one other thing here is that what we're looking at is disability prior to that march of two thousand and eight he has to prove that or he's not eligible for title two benefits and we have opinions from ms tell from ms bennett and the evidence from dr is vonnie that all show that and the v a decision that shows he's unplayable that all would support a finding of disability prior to that doctor witch doctor as one he was not using examining but we'll set that aside a treating doctor who had treatment notes and the elderly did not discuss those treatment notes but was crucial in the marsh case was that in those treatment notes th doctor said the person is and i'm paraphrasing this person is not functional and is disabled by these limitations so that is a crucial medical pinion and it was in treatment notes had to discuss it what we have in this case however is simply clinical findings to put under stand that but why isn't the a o j we since the clinical findings go to the claim of disability why isn't the l g required at least to acknowledge them and explain why he doesn't find them where she doesn't find him i forget in this case persuasive well your honor that's i might unpack my answer to that question a bit  the term marsh cases really talk about if the doctor is giving opinion about someone's work limitations in the ill she has to discuss it right but it doesn't say the doctor doesn't have to discuss mere clinical findings so march is a marsh is a worse case for the commissioner i understand that but i'm getting back to the facts of this case you have a physician and it makes findings quite relevant to the r f c determination and they're never discussed  why why is that consistent with the obligations of the l j i would have a few responses your honor first maybe the first thing i would address is this idea that plaintiff brought up today that dr sue fist allegedly did not examine same conclusions his doctor was on he didn't shouldn't he have a look at the two those and determine which one he credits no your honor the l g isn't tasked with crediting specific line item clinical findings in a doctor's examination report such as whether the person had a positive straight leg raise test on on one occasion out of a six year period it would be it would be going far beyond the case law like turner cited in our brief in the marsh case cited addressed doctors on his findings at all yes you're right so is that and this is a doctor who examined this person and made some clinical findings that are relevant i think to the ultimate determination of r f c you may not credit to me may not that there is it ok for the l j just not to say anything about yes your honor it is these are only clinical findings the turner marsh cases among others are very clear that when the doctor does not give work related limitations there isn't a requirement for the l g to discuss those those statements so the l t isn't required to go through these the specific clinical findings and when and compare them thirdly the l g could but isn't required to in every instance the a l j completely misunderstood the system for v a ratings for example he makes the statement that there was only seventy percent compensation and that's incorrect as a factual matter there was one hundred percent compensation which stems from the weird way that the v a now operates that the seventy percent disability rating equated to one hundred percent compensation so it seems that's one example but it seems like a actually didn't even understand how the v a worked and yes it's different but to the extent that he was discounting it because it was different it seemed like he didn't get it and the other thing that bothered me about it was that the other reason given was there wasn't a discussion of these other items yet they were all in the medical records at the l j was charged with reviewing so why are those sufficient grounds for completely discounting the v a s finding of inability to work because of his educational level and he is disability is just a service connected disability alone this individual was unemployable that's what the v a said and i guess i'm concerned about the sort of lack coming to grips with that on the part of the sort your honor's question raises a number of points and i'll try to make sure i hit all of them the i don't believe the l that point and regardless i would argue that the the difference between seventy percent disabled under the scheme and then rated and then a finding of unemployed ability with that is is not materially different from one hundred percent narrow and all these other items that are listed in the v a s determination are found somewhere in the medical records including dr sue francis notes as i recall so even though there was a testimony specifically about each one all that information was in front of the a l j was one that is correct on her but that information showed that these conditions weren't causing significant limitations the what information showed they weren't causing and what you're saying is that the the when klayman testified he didn't mention what other information showed that these conditions identified by the v a weren't causing limitations certainly on or for tonight aside because i i frankly find it tonight is thing a sideshow in this one with respect to the you know the the physical limitations back its head are a pain what part of the record showed that those were not  imitations the first key point of evidence i would point to your honor would be dr super says examination report who performed a very thorough examination of all these conditions including points back at the neurological findings and other things yeah but that's a different question than the one i asked was the one i meant to ask i understand that the j at least for present purposes might have said i've considered the v a report and everything else in it but i find it inconsistent with dr surfaces surfaces conclusions and therefore i i find you know i credit him more than them but he didn't do that he just said it's a different rating system and you're not complaining about that stuff more or less yes the first is wrong as a matter of law and the second one is is persuasive because the l d was discussing other evidence in the record showing that these conditions weren't significantly limits not what he actually wrote down your reading that into it but that's not what he said and writing yes yes your honor he did not say that at that point in the that is correct your honor but i think in this case when the elders saying he did not raise ease as issues actually limited his ability work we have to look at that finding in the context of the whole record i don't think some tell me that what he said that he didn't provide an explanation at the hearing as being in error is that a harmless error in the context of this case and if so why i'm not certain i follow so he says his reason for not relying on the v a listing is that he didn't make mention of specific impairments during the hearing which doesn't seem like it's required or even necessarily relevant since the insured date ends in two thousand and eight and the hearing was sometime thereafter so that that seems to be an error as to why that case i would while not conceding it was error your honor i would i would argue if it was error would would have been harmless v l t is discussing these other conditions and we look at the medical evidence concerning concerning some of these other conditions that were comprising parts of the v a rating that resulted in building up that rating to seventy or even one hundred percent and the evidence was showing that these conditions were not significantly limiting him and to the extent that there were conditions like the hip ue of whether the l j actually considered the use of the older age category because the claimant was just i think two if i recall correctly two months before his fifty fifth birthday and the l j was certainly made aware of this in the conversation but i don't see any indication that the ala j actually sigurd whether it would be more appropriate to use the older age category which might have made a difference to the ultimate determination your honor might i would i would argue that the lockwood case cited in our brief answers this question directly and in lockwood the court held that it was enough for the elderly to simply cite the individual's date of birth and then the controlling regulation on the issue which i believe in la quinta was something or also a vocational expert called so that there was some basis for looking at more than a mechanical application of the age categories there was your honor but and there wasn't and i says that is that is that is very much i would what jobs can this person perform and the whole point of this issue of age is whether it's going to be a mechanical application of the griots which is what happened here versus an individualized conversation about the person and so just the fact that that was done in law shows that there was that individualized conversation about the person whether or not they spoke about age specifically and i guess i'm concerned that we don't have anything similar here of that demonstrates that kind of into either a conscious decision not to do that in an explanation of why or that kind of individualized  consideration you know your honor the lockwood case agreed with the agency's interpretation of this regulation which essentially did not require the l t to give a specific explanation of fire line and sit aeration consider an issue without explicitly discussing it in the decision and that's that is what lockwood recognizes so we should just assume that in every case them that it's considered whether it's ever mentioned or there's any discussion ira your have is is there a difference and it seems to me you're arguing there was not a difference between raising an issue right a party and the a l j actually considering that issue and meaning processing the information and making a determination one way or the other and clearly as i said at the outset there was this was raised but i guess what i'm having difficulty seeing is whether there's even an inferential possibility in the actual decision that this was considered your honor i would rest my answer on just simply reading of lockwood that the key holding block would page on honor i would argue that it is by citing the individual's date of birth and then the controlling regulation on the borderline age situation and nothing further would be required the the language of lock would use  category isn't that paragraph and we're reading the same language slightly different interpretation which is one you satisfy the requirement simply by mentioning the age and citing the reg but the court has to be also satisfied that it wasn't applied mechanically and not case the court was because he had heard the testimony of occasional expert and nonetheless reached a decision so it's not the citation issue that troubles me here it's the mechanical application of it you know if i may one is you've you've met your surface requirements by citing the age in the reg and now we worry about whether or not you mechanically applied it and the answer is we sure you didn't because you heard testimony about it and hear that it's that mechanical application part that i'm the record doesn't help me you certainly honor my again my reading of lockwood would disagree with that thank you counsel we took you over your time but we appreciate your responding to our questions  i want to start by saying one way to avoid the lockwood issue is to accept dr is vonnie is really an contradicted clinical findings that were not discussed because his clinical findings such as underhill was walking with the right sided limb positive straight leg raising pain reading in the right leg he had pain weakness fatigue in coordination and lack of insurance effect and range of motion of the lumbar spine all of those findings not of which were mentioned by the l j contradict the l g's finding that he could do light work they contradict the l g s finding that he could be honest he for six hours in an eight hour day if he couldn't be on his feet for six hours in an eight hour days limited to sedentary work is limited s work under the medical vocational rules he's disabled so that's why doctors why is having you so important here and the reason it's important why the l g has to mention has to discuss clinical findings like that if dr responds clinical findings were consistent with the l j is residual functional capacity assessment able to say i think you know it would be it would be harmless error for him not to mention it because his his of his r f c already accounts for all of those findings but here question about the a v a with that error be harmful if we assume that that was not an except that was an error in failing to in rejecting the v a opinion because of him feeling testify about all those different impairments it would be harmful error because what we have would have then is there are only two reasons stated that reason would be no good the other reason was there are different programs with different rules well that's not that's doesn't tell us anything either which meant he would have stated no valid reason for rejecting the v a s persuasive opinion he had to give a persuasive reason he gave no reason at all no valid reason no persuasive reason so then you if you accept the v a s finding of unemployability since two thousand and four february two thousand and four sounds like he would have been limited to  sedentary work prior to two thousand and eight so that's why it's it is harmful area affects the outcome of the case and think that's everything the over there one of the thing is for us to l j not well look this it is one hundred percent since two thousand and ten the l g didn't seem to realize that the unemployability dated back to february two thousand and four so that was one additional element of confusion i think