all right our final case for this morning is mark against commissioner s folks that's what we are if i could have one minute to talk i think i can bring more clarity to this what seems like all morning we've been involved in a morass of rescue  claim preclusion issue preclusion and we're going to go there again but with a little different flavor it occurred to me of all times last night as i was reading my  four or five g gives the district court the ability to affirm modify or reverse a social security decision with or without and what we're sensually saying is that in the very st district court decision what they did was they are modified the decision with three m essentially they if you read the decision and understand what the district court did the whole decision is ok except that there was omission of concentration persistence or pace limitations but by the time the case moves from there once it comes down from district court it goes the appeals council appeals council issues a new decision no sign or stand your position today that what the district court did is to put its stamp of approval i'll put it that way right on everything that the st sale jay had done except the concentration persistence and pace said go back take the rest as a given and whether it's exertional whether it's something else and now build concentration persistent some pace back in and that your complaint is what happened instead is that the nd a l j thought that there was more room for variation that he could take a fresh look had lots of things because the district court's opinion hadn't in some checklist fashion said and this is answer depend upon the precise phrasing of the original district court judgment no i think just the district court as well as ale days are sometimes they move to quickly and so you don't always see an ordering paragraph you have to read it can textually will get or yeah the problem wait i have my research i'm a vid by both brief be i don't know but if i could back up to the facts a little bit here i know you've been doing so a lot of social security work for many years have you seen any other case where the residual functional capacity went from sedentary a limited range of sedentary work to no physical restriction i don't recall that there have been that there's been such if they look at the s t a issue again it's probably because there are is new evidence that relates to the time period under consideration as opposed to evidence created after as opposed to just looking more closely at an issue the didn't seem all that decisive the st time around i suppose that they could have made a mistake on the math that situation would rarely happen it would think that at least from my background i would say at best sometimes maybe never one but taking this record there's no new evidence that would show that she had a miraculous recovery and now instead of being limited to sedentary she can live up to fifty pounds all day bomb what i think they say the only additional evidence is that non  examining consultant opinion by mr s gone and which is not actually new treatment evidence it's it's an additional expert here mr forbes let me let me ask you this is a way  of putting this into the dialogue that we're having here one of the things that confused me a touch was after after your client lost the st time around in front of the l j right she filed a new application for title two benefits and altogether new one that new application went in front of the nd e mail j one of the things the nd not quite right ok there was a  st application that was denied that that was not appealed then then she applied to get in and it went in front of the st dale day ok now but then she filed an a and so what i was wondering about is does this new ale j with a new application steel j free to consider whether the individual has a severe physical impairment kind of a new problem not do is they they consolidate the subsequent application with the application that's coming back down on remember the district court  that's practically right why wouldn't miss martin in what she filed in february of two thousand and fourteen especially given the st male j opinion drive why wouldn't she real ledge be for the severe physical yeah i i don't know the answer to that i might do and what's the meaning when you look at pearson opinion st paragraph he's talking about these two titian's he says this and the previous claim  essentially means that the one that was axed stant is treated as the one that is being decided and the subsequent one is it is almost as if it's not an existence this case is good fusing because this was in a time period where you could file a subsequent application right after the l j decision whereas now we're in the era where you would have to wait until after the at what the would be so called grids have kicked him to right render her disabled as long as e r c is sedentary or life and has an unskilled component in it she grew rigid age fifty five and she was age fifty seven at the alleged onset day and age sixty two at the date less and sure and quite frankly even though we have a fallback position case if the r f c is like your sedentary is a limitation it indicates unskilled and the routine and simple work limitation put in at district court could go through the old r f c and just have a bullet list you know of all the things that had in it and right the end of it this is being affirmed this is being farmed this is being affirmed reading what happened before it looks like the only problem the district court has with it is the concentration persistence and pace and the logical inference would be that there's nothing else reversible yes your honor i understand your  and i think what's important is that the district court henri man specifically said that r c failed to accommodate ms martin mental input and it also expressed lee said that it was declining to reach other argument and so we did not put a stamp of approval as you asked earlier on the physical are see it simply just said it was not going to reach that issue but the government was not armed surely not arguing  c was true generous to the point of physically no your honor and and what's important to think about is that in our it's the determination of the most that a claim a can do so in this  to explain this very counterintuitive jump from sedentary exertional criteria her ability all the way up to slogging around one hundred pound pallets no exertional limitations if you read the social security guidance that's that's a lot of exertion you know it's a lot of weight they're compact functional capacity to perform a full range of work at all exertional levels and there's not a word of explanation for why that and so i'm not just inferring that he found that she no longer had any severe physical impairment and within that discussion do you know what a difference physicians opinions he noted that there were state agency physicians who previously found that ms martin was limited dr wriggles the one who examined her yale j seems to have overlooked that fact and found six very extensive limitations on range of motion basically head to toe on her spine medical impairment but only related it rick reiterated her complaints that's incorrect right because he examined her and he found these extensive limitations to the range of i believe that he did not make a diagnosis doesn't matter it it is something that they can consider and i think that that went into the entire package of the entire record i guess where we can see that sedentary to very healthy and what worries me is i mean nothing scouring this opinion sitting here because i don't remember any place where so much for the goose sauce for the gander i mean it is quite easy to test somebody for their lifting ability you know you can document that you can't just sort of eyeball somebody and say oh i think she can lift one hundred pounds all the time you know or somebody else flips forty two pound bags of kitty litter a lot so she can do anything just test and why the commissioner sort of sume that because maybe her disks aren't compressed as badly as she thought they were the cheap can do heavy exertional work there's there's no really between those two observations there's no discussion of why she can get above to precise for what mr forbes is talking about above the light exertional level for a page or a paragraph that you're relying on because just obviously you know it's all js assessment that we're reviewing it's not council's position ye so where your honor under that to where they are where you're saying step two and i'm flipping around you know page seven page eight where in this opinion so we're talking about head shaking w about asperger's talk about yes so starting on page five hundred and twenty one your honor and continuing up to about page five all right and that's what i just finished looking at and i couldn't see anything about her ability to handle heavy weights or to run or to crawl underneath things you know all of these things that the commissioner's regulations about the hi pages examinations where martin had a normal gait and we see they all day discussing the fact that she did not complain of neck or back pain but people with normal gates are sometimes limited to light levels because having the ability to walk normally doesn't necessarily mean that you can lift very heavy weights so yes your honor i think another part of this issue is  just as we've discussed previously with the fact that ms martin would not alleging physical impairment in either application and to go along explain that with the so i don't know why that is a complete mystery to me in the  application after in a andrea has already found so if your physical impairment she falls a new application alleges no physical impairment your honor i can explain her choice and her application but i think it evidence along with the rest of the record in the fact that she wasn't seeking treatment for physical conditions she wasn't complaining of pain and she was primarily treating with over the counter medication that's what happens to people who can't work don't have treatment but she wasn't seeking treatment purposes so i think it is important to note that she didn't apply for disability benefits alleging that you rickly impaired she also said that she did not stop working because of physical impairment record that says that the person in front of me listed twenty pounds well we have an entire record of several different treatment notes and examinations where physicians are making observations about how someone functions physically and so we do consider things like skates we consider the treatment of someone and in this case i think the record recorded they are great decision not to include any