for social security disability benefits was denied at the administrative level pursued through hearing denied there followed the requisite appeals and we ended up in district court in montana where the magistrate reviewed and affirmed the commissioner's decision we are here seeking the court's review of the basis for the denial now the so security decisions are factually based hinson facts and what happens in the case with kevin loader is he presents he has two different types of issues one is physically he's got a predated his disability date became worse continued treatment through the v a both in terms of chiropractors am indeed dr meyer and various nurse practitioners beginning in december of twenty twelve rather than give us a factual narrative maybe just zero in on what you think they did wrong with respect to the back pain well what he did was he said been refrigerators or washing machine  lifted a washing machine if he the said move the washing machine i'd have to be present with a completely different argument but basically what he did was he said that back is not as limiting as what kevin said i don't blame i don't believe the doctor meyer said your limits are and if i remember your client did you never said he lifted it he said he may tried to move it and in the process i guess pretty seriously injured his back yes and even the moving part aggravated the back second thing that the  did to discount dr myers opinion and the and the magistrate affirmed that evaluation was he said that he went to california took the long flight which is way too long to get to california clearly has  dr myers limitations and so it's we can speculate i guess i get to because the l j did nothing to evaluate that picked it out of the medical record and said ok now i'm not going to believe you because that there he didn't ask him if he flew delta which would dump him in salt lake for three four hours before you continue on to california there are a legion flight direct from great falls to to california two hours and that fits in the limit but i guess tell me if i'm wrong on this i guess i didn't think that was that significant because somebody could certainly endure you know quite a bit of pain to get from point a to point b but that doesn't necessarily mean they can then you know sit or stand or whatever for eight hours a day you know forty hours a week i would agree with that so that some of those are i remember those as being the two things in terms of your clients i guess testimony about his other activities that they held every light on is there anything more than  there's two other things that one is before is data disability hemo to long in august of twelve he had motile on and he had reported to the doctor that he had a tough time pushing a shopping cart but he had three months four months before his data disability ok well that seems like a conflict so what's well it's not a conflict to the extent that before disability symptoms can wax and wane in other words when you get disability date you've got to estab twelve months of continuous disability and so whoever decided december of two thousand and twelve was a disability date determined as of that date the symptoms have now become at least permanent enough to be twelve months just the time in between when he supposed he was in the lawn and when he said he couldn't push the shopping cart what's the gap they're both i think in august of two thousand and twelve ok i see but that's four months before the disability date jay also noted that dr meyer at some point had encouraged mr lowder to do some job retraining that's that is not true that note is not in the free client kevin loader is into my ears and says i can't do my old job and doc says yes you can't do your old job and he says you know i'm thinking of looking at retraining and the doctor says i think that's a good idea well if the doctor had said i don't think you're able to work at all so don't waste your time on job retraining you might have a point but if the doctors encourag to do some job retraining what's where's the error in the old days citing that is one of the factors that is not totally disable it it's the opposite analysis it's absolutely that the doc doesn't come in and and see someone who the doc thinks this guy needs for whatever reason mental improvement physical improvement improvement to society this guy needs to go back out and get a job that's not what happened the doctor did not a valu here's somebody that could still go out there and get in the trenches and do some work that's what the judge found that's what the a l j found the doctor determined he should seek retraining the whole different thing happened when you c to support the conclusion that the claimant is not completely disabled from any work at all what we don't have because the judge didn't seek any information from the doctor and he didn't seek any information in questioning kevin loader to say now what kind of retraining are we talking about in fact did you ever do it did you ever go out and apply through the local job service for any retraining did you go to easter seals did you do anything what were you thinking about in terms of retraining you know are you looking at the greater job at wal mart what was the retraining that was considered t he was represented you represented him at the hearing yes ok so i guess at what point does the l j have the duty to further develop the record as compared to the burden on the claimant to show that he saw job retraining but there wasn't anything he was able to do because of his condition but the problem we have is when you're sitting at the hearing you have no idea what the l j is going to latch on to in terms of reference in a record this is this is a reference on a medical record where my client goes in and says you know i'm thinking about retraining and the doc says yeah i think you should consider that i have no idea that's innocuous to me i haven't got the ability i'm just not that smart to be able to predict the judge is going to jump on this and say that establishes d my opinions should be given no weight because there was not a question posed by the l g a at the hearing to even give a hint that he was going to latch on to these things counsel i'm interested in the depression issue to what extent are you relying on the finding that depression is a medically determinable impairment step to well i think to what extent i think independently there's a basis to when on the physical component i think independently there's a basis to win on the depression and what happens is the depression is found by the treating dr myers he's medicated for depression he is treated by v a nurse practitioner there's no there's no question that the found that there was depression so you don't have to defend it but my question is was that brought to the attention of the expert at step five know and to what extent is that concern it's not brought up at all and the reason is the ael j relied upon an independent expert at the time of the hearing who came in and said i've looked over the relevant medical records whatever those are and i think the limitations are mild and therefore the l j said i'm not going to include any of those limitations because they're only mild according to  they're only mild so i don't need to incorporate those to the vocational consult so there were not a motional component limitations incorporated into jobs just to be p know if it was presented it was presented as no more than mild limitations and by that i think what he did the vocational p s operators of the expert was aware of that condition the expert isn't told that there's depression the experts told i want you to assume there's a claimant whose ability to concentrate is old only mildly in impaired in their ability to focus is only mildly impacted in so the expert doesn't take depression and fact they they take the limits that ail jay provide doesn't the listing require that it be severe yes and severe only requires an impact more than a minimal impact in other words if  it has at least your your your argument is a mild is equivalent to severe no i think mild is equivalent to severe i think it is the problem is when you say mild if you say the limits on concentration persistence and pace or only mild you don't incorporate what the medical treating physicians found were the limitations which were moderate dr myers found that he had moderate difficulties and so the judge only presented mild difficulties in terms of depression is that make sense i think so i have to say every time i think i understand a five step grid i conclude after argument that maybe one of one of the one of the panels decisions that's come out has said the discussion needs to be made in the decisions as to each step as to what's considered and i it's it's a great opinion and i'm going to start arguing that to my district courts to hopefully get that up there because it's so hard when you focus on an issue at step two arguing it wasn't included when really the impact is at step five and so the judge has all  but i understood the grids to mean by identifying the diagnoses at step two that produce severe limitations that the social security grid grids are the wrong or the step in sales of the vin requires that those severe limitations be included in the residual functional capacity determination and that's accurate that's absolutely accurate and what i face in arguments from counsel when i come up and say they didn't include limitations under present at step by step two because the judge said a depression isn't even severe then they'll come in and say there's so the yale j concluded whatever the depression was it was not severe correct and then presumably would not be relevant to the r f c stage except what i will usually face from opponents when we argue is that there is no air in leaving it out at step two because the judge considered it at step five and the problem is it's like that is not asking the questions if you're going to tell us that step two it's not severe there's no evaluation on the impact in other words in this case what should i have and is there such a bend in the valuation where the male j said the depression has an impact on it and here's what i think it is i think  said it's mild and i'm going to adopt mild as its limits and that means he's going to don't put him in a room with more than five employees and and keep him from too many people coming and going with him as opposed to  doctor myers that i'm not going to believe who says his limits are moderate so when you get to step five they can evaluate ok here's what i gave to the vocational consultant and he's testified even with those moderate limitations from the treating physician he can still work which is why i think there's an independent basis to reverse on on the physical through assay and there's an independent basis to  good morning your honour's my name is michael howard representing the commissioner of social security mr lowder injured his back in two thousand and six during a military training exercise and i caused a compression fracture in his mid back he kept working for several years repairing hot tubs and painting houses and the question for the l g in this case was whether he became completely disabled under the social security act beginning beginning in december two thousand and twelve from that same back injury can i ask the poorer ones that we it was just not a very well done not a very thorough decision i'm frankly not inclined to uphold it but i want to hear what you have to say about that but i just wanted to get a sense is it because the l j just said look i've already listened to all of your complaints about especially the back pain you pick this arbitrary onset date that just happens to correspond i think with the earlier decision basically so i just don't was that the attitude i just don't need to give that serious consideration to what's happened since because i've really done a thorough job already really against you and you didn't bother i don't think you bother to appeal that or well your honor i would disagree as a overall matter and hopefully i'm answering your question  think the l j of course there's different lengths avails the decisions and different levels of detail but what if we really look at the l g does it decision in this case and we compare that to the underlying record we see of the l d is really giving a fair summary of what's going on the treatment notes for instance the other health care providers like the nurse practitioners and such that mr loaders saying work nord were actually referred to in cited garzon and he white not really i mean there was almost no discussion of a pretty wide array actually of non and d type for i mean most of there was very little discussion of their their views and they were all consistent with what dr meyer the only as i understand dr myers the treating physician there was no there wasn't even another examining physician that they'll jay was able to file right that's correct your honor there was no examining so i mean i guess our cases say that when the treating physician if you're going to discount entirely the treating physicians  views and this wasn't even just a treating physician who you know saw the person on a one off basis this was a sustained relationship you've got to be pretty thorough in documenting why you think that that doctor doctor's opinions are not to be believed right and that's why i guess i'm saying inconsistent with what dr meyer found that we would just discount entirely his opinions your honour's raised a few good points but i would like to try to address as many as i could really i think going straight to the issue of dr i think the real issue is and the l g a noted this and was aware of it that dr myers was describing someone who's basically bedridden i could only sit stand or walk for a few hours a day could not even live ten pounds in a work setting and was confined to bed and given some of these other inconsistencies in the consistencies in the record and what we really see is that mr lowder will get injured doing different physical activities and then he'll go to the doctor later because he overexerted himself so some of these like i believe the period as well and the elder did point to some things occurring later like the washing machine and as far as the washing machine goes the l g did use the term move on the same page and lived on the same page so these two different terms and i move because it definitely was not with the result of trying to move the washing machine was that didn't did he end up to go to the hospital or something i mean it was he i mean i get the impression if you just tell me if my big picture view of this is wrong i get the impression of somebody who actually does want to work he did actually try to camera what do you try to couple different things and you just couldn't do it physically he wants to try to have in harmony life but every time he does even little things he's just put into excruciating pain and has to be flat on his back for for days or ice pack or whatever but i don't get the sense at all that this is somebody who is just making this up and that he really just wants to sit around and collect disability check he wants to try to be active but he can't because his back prevents him from doing that maybe another view of the evidence your honor again we do have the substantial evidence standard or you though i don't think the l g ever suggested that he was into making things up as a being facetious or completely exaggerating the as he did limit him to a range of  light work with some limitations and sitting and standing and walking beyond the normal light work range but you have a doctor who agree with you that the dr myers limitations are pretty extreme i was a little bit surprised by just how limited the doctor thought he was but but nonetheless that person that i'm i'm not my as they all day neither are any of us right but so it did seem that dr myers opinions were heavily influence obviously by the subjective reporting of pain from from m lowder and so i then said well it seems to me that the main issue is whether the old days adverse credibility determination is supported and i just don't see how it is because the there was the mis statement really of the lifting versus moving and this thing about the the briefing from mr loaders council what the cited was exhibit b two f slash two which is page four hundred eighty eight of the excerpts of record and that's where mr lowder is talking to one of his health care providers and he said he had more pain after quote doing a lot of walking on vacation in california and quote and that that seems to depart from what he was saying to the l j at the at the hearing which was i was basically living on my family members couch for a few months i didn't do anything else other than what i normally do so this is an example that the elders point to is that while mr loaders said he was highly limited at the hearing and needed a cane and could only go to the store a couple times a month that's certainly a very severe picture there were these other inconsistency in the record where he was doing more were saying that he was doing more to health care providers so i would suggest this case is like thomas said he among many other of the court's past cases cited in the briefing where we have these claims of severe limitations from back pain but then the l g is tasked with looking at these claims in light of all these different inconsistency in the record so even i'm sorry what's the inconsistency though in terms of just daily activities not a one time thing because traveling i could you know if i had severe back pain if i really needed to get to california i could do it and maybe when i got there i'd be laid up for a couple of days trying to recover but that doesn't mean that if i'm put in a work setting where i have to do something for eight hours a day forty hours a week that i can do that and still function right so that's why i guess i grieved if he was able to point to daily things that the man was able to do that's different but the one time thing for the travel i just don't see how that undermines dr myers opinion certainly on our well the l g did i believe in the decision referred to him walking his dog but i would like to say that even if your honor does not find the daily activities finding that persuasive there are other very significant factors in this case about why i feel to question his very extreme claims about his back pain the objective evidence was quite benign with a mild imaging with rask spine the claims that he needed a cane and he would fall over an injured myself i lost my balance dr meyer himself said he cannot explain give a medical explanation for that so there are there are real questions here about the objective evidence and as far as the effectiveness of treatment whether whether it was effective certainly he did continue to complain of severe pain at times but there are records where he says that he had an overall improvement since starting treatment with these conservative measures and that surgery with surgery was never recommend d counsel if i could move to the colloquy i had with your opposing counsel about the issue of depression tell me first what's your interpretation of what the l yes your honor from the commissioner's perspective this is a fairly straightforward matter the l g found that while he had a medically determinable impairment of depression it was diagnosed by a doctor as is required to it did not rise to the the level described in the regulations where it has to and the regulations use a language of causing a significant limitation on the ability to perform basic work activities and then basic work activities are described in other parts regulations so that finding if we look at the actual evidence in this case was actually very well supported and the able to discuss that evidence so we have the different treatment records including from the nurse practitioners that plaintiff says working toward like  white where even though mr low are saying i'm i'm feeling depressed i'm feeling irritable when they are doing their observations and the mental status examinations he's not showing real limitations on his mental functioning coming from this depression and then the l g even went so far as call medical expert on on this issue so maybe there wasn't an examining source on this issue but there was an testifying medical expert who looked at the records and said this individual doesn't have more than a mild limitation  the credible supported limitations caused by all impairment severe and not severe so the fact the matter was in this case what the l j found in the treatment notes and the medical expert testimony was there wasn't any significant limitation it you know i minimus limitation below that regulatory standard simply would not factor and what did did he simply ignore the depression element or did he say what you just  five your honor i was looking through the disk in here i don't know if the l j referred to depression again under the r c heading but i i believe it's the terry case which says that the g does not have to make findings under certain headings of the decision so the what we really have here is the old discusses the depression is you pretty clearly it page fifteen of the record and that and that we can see that continuing on given how the regulatory framework fifteen is that while he's looking at two that's that's up to your honor ok and then at five you're telling me that it never comes up at five or does and the honor i'm i'm looking again at the r c discussion i'm not seeing a specific reference to depression but i wouldn't i would not concede any error because of that the l g adequately discussed it on the theory that whatever the depression was it was not so significant as beacons as needed to be considered for exactly your honor and i think a crucial point here too is that mr loaders talking about depression and talking about dr meier and these extreme claims but even when we look at the moderate limitations of mental limitations dr meyer described those were not he did not refer to depression when he was describing those limitations he only refers to these complaints of pain in his in his in his explanations for those check boxes i gave so that really tends to undermine the claim that he has some sort of very severe depression that somehow overlooked it's a little bit of tooth but the only thing i could find them referring to your sixteen of the old days decision is that at the residual functional capacity step five he does say in the following paragraph in making this finding the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be expected is consistent with objective medical evidence and insights to a bunch of social rulings and so on and then goes on further below that to talk about mental impairments generally is something that has to be considered along with the physical limitations but i didn't find anything that expressly addresses judge those gammons question i would agree your honor from my reading of the l j decision today but this this this division and how the l j addressed it addressing oppression at sept two would reflect the understanding of the regulatory process and that once something is found to be not severe and there aren't any significant limitations it sort of becomes a non issue if there aren't if no medical sources saying you have a significant limitation such as a limitation to only simple routine tasks or working away from the general public one of the vocational expert say you have an indication that he testified that similar mental impairment such as they were would have changed his determination about the availability of gainful employment is do you recall that you honor from my recollection the locational expert was talking about dr myers limitations which were again reflective of pain and the l j address and then rejected dr myers  opinion because it described a very severe degree of limitation that was not supported by the  evidence that be up to the expert to decide the expert is sort of presented with or it hears the profile and this person find work and if the mental depression issue is not then a five then is not considered by the expert you know if i understand your honor correctly yes that the l j is the one tasked with presenting what we call the hypothetical individual right to the to the vocational expert and so the l g is determining what are the credible impairments and the oldies will typically pose two or three of these with various scenarios of different limitations and well ultimately will pick the one after the hearing that they find most supported by the record so if depression is not included in that because there's no valid real limitations coming from the individual's depression there is no  only take one ok in terms of responding and focus i think is banner finished up there on the depression issues one of the issues that happens whether it's step two or step five but all to muttley when you pose the vocational consult with hypotheticals and they'll pick one that you can do cartwheels in the cirque du soleil that person can work and you get to the end if you can do nothing they can't work and then the ale j will go back and pick depending on what facts they  look at the facts that didn't get presented the facts that are ignored are the limitations mentally i'm going to focus just on the mental ones from dr meyer april of fourteen he found based upon pain and the medications that kevin was going to have problems moderate limitations in understanding remembering complex instructions carrying out at those instructions moderate limitations interacting with the public supervisors and coworkers within the general range of depression is that your argument know whether those come from depression of those or from social anxiety disorder it doesn't matter what what the what the mental issue is those are limitations if if they're supported by objective basis those are limitations that need to be submitted to the vocational consultant was warned but were not and if they are incorporated into the vocational consultant then they fit within his testimony that a person can't work if they're not able to react with the public for the specific eight hour period thank you very much thank you counsel the case just argued is submitted the last case on the calendar energy investments versus greedy companies submitted on the briefs and we stand a