may have please the court my name's still a time castle aeonic i'm representing steve edgecomb in this appeal edgecombe has been unable to work since june of two thousand and twelve when he was fifty two years old he's currently fifty eight under the current rules ever since two thousand and thirteen you couldn't even file a new application under well now you can't file a new application for benefits until after the appeals council has ruled in your case at the time when he his case was denied by the ale j you didn't have to wait until the appeals council denied it so this is the claim that he filed shortly after the a l j turned him down that's one thing then you you also i'm sorry of last year exact question well i didn't really put that much of a question i'm just trying to get it straight so the title to claim went forward oh yes get back to that and our court has already a firm  once on the first the first application ended up going all the way up to the ninth circuit and it was affirmed but there was new evidence that came out right around when he filed his new application that was never considered by the previous sale jay so that's decision the l g didn't know the two neurosurgeons thought he needed surgery but it ended up the appeals council knew that but the appeals council declined review and when the appeals council the kleins review it's not a decision it just ends it where the ale they decided it now i want to jump back to what you were saying about why is this title sixteen not title to his title to eligibility had expired however he worked in for a couple of years he went back for part time then a little bit of full time work and then he reached a point couldn't do it anymore so he had worked and the l j in this case didn't look at his current earnings record to realize hey what do you know he's eligible for title t in addition which when he applied for benefits and s s i application is an application for everything s s i title to anything medicare anything you happen to be eligible for you can't apply for s s i and say i'm not going to apply for title to illegals you have to apply because the it's a poverty programs a program of last resort and so if you can get title to benefits you gotta apply for it and go for it anyway here when he applied for benefits they didn't know that he'd had this recent work history they didn't know he who is eligible for title two they didn't take a formal separate title to application just the one s s i application by the time the hearing it rolled around his current earnings record his shed had it was it was in the record and it showed that he had additional quarters of coverage and he was eligible and so i asked his ale j would you please consider this as an application for title two benefits she ignored it  it is now you cannot apply for anything until the appeals council rules but that wasn't in effect when he applied they took it as actually he was able to if it's tied if you have a title to deny all you can do it's title sixteen application but they won't process your title to application intil the appeals council has denied it but once they do deny it they will escalate it though escalate the title to a dull considerate because the title sixteen application is a title to application basically social security didn't really think through there were rulings on this because it's got this illogic to it you require an s s i application is an application for title two but we won't process it that's last case this strikes me as one in which the jury had plenty to rely on and finding your client not credible in terms of the limitations that he claimed he was experiencing and i'm thinking in particular of those two with a physical therapist who gave him th battery of tests and have to read those physical therapists reports carefully because there's the the under ryan versus commissioner that decision and now i think there's other decisions that have followed this reasoning as well  it's not it's not proper for a l j to reject a physicians opinion if the physician based on this believing the claimants subjective complaints if the physicians himself didn't disbelieve the they had some tests that were able to control for that and in light of whatever he did on these other tests we don't think he was we think he was actually quite capable doing more he intentionally wasn't and i can't remember if it was as though the people who observed him walking to the car or something that was totally he saw a different day he had a different gate walking to the car that he had when they were testing his gait but they didn't describe in what way it was different the other thing they didn't do which they could have done which they would have done if they'd just believed if they thought that he was faking his gait faking it didn't have any problems and faking all of his efforts they wouldn't have limited him to sedentary delayed activity they wouldn't have said he has to change positions frequently they wouldn't see the physical therapists are provided they have to be provided with the m r i reports that show what's wrong with this person they got to know and referral letter from  after all was said and done they came to their conclusions of what his limitations are yeah assuming that what he was claiming was true but then they themselves said and we have serious reason to doubt that everything that he's saying about his limitations should be credited right that's how i read the report read again that's not how i read the report and that's the real problem is that once again and i've seen these reports if a person goes to a physical therapist and doesn't have things you know they're faking everything in sight and they've got ways to detect this the physical therapist doesn't conclude our conclusion is he needs to able to change positions frequently your conclusion will be we can't say anything he's got verisign we can tell is nothing wrong with a guy well that's not what happened here is a strict liability standard for exaggeration people and maybe they do do it sometimes maybe they have some mental health component well in a male health components maybe they're afraid maybe they're worried about sleeping in a car too many nights and they maybe they make mistakes and exaggerate but that doesn't mean that they're always lying and we need to discount everything in the record that relates to subjective you know complaints or objective things that could be faked right right well the issue here too it's consistent everyone who examined him the neurosurgeons and the physical therapists and nurse armstrong they all found that he had significant range of motion limitations and l j didn't entirely dress these range of motion limitation but that's objective testing that showed it was all consistent and when you have two neurosurgeons that say you need another next year you don't remember this guy had actual hatice had cervical spine surgery and it worked for a while but it failed and he had a second time where he like had this horrible experience where they basically sort of fell off the table when they were trying to work on him and and it was just a nightmare experience that he couldn't use his arm for about a year and that recovered sort of but you got you know the neurosurgeons aren't making up that they think he needs he needs cervical spine surgery and if that doesn't support that the limitations that he describes of needing to change positions and what the physical therapist describe nothing does i mean that's very strong objective evidence now it's important and i met not objective evidence he can't work that's where i disagree with you it's objective evidence that there could be a basis for his claiming the limitations that he has and that's why he goes and gets the toss and review the report again but i just my recollection of it was they said we ran through these tests and there's reason to doubt that he's actually as disabled as he's claiming and that's what they all jay bases the first credibility term nation on and then on the basis of that discounts the medical evidence and i don't know in contrast the last case it seems to me that's there's much more here the theology had to rest that conclusion you not comment on that just the follow ups could be a two part question i tend to agree with my colleague and i wonder if it's just not a case where arguably there might be remained issues because the ale jay did not consider for example is there any indication that the a l j actually considered the opinions of doctors and menaced and helprin for help and i know it's the l j summarize some of the orthopedic surgeons findings but never said how much  and legitimate reasons that are supported by substantial evidence in the record yes and short the you know i i still think that the the level of peeing that he's been experiencing for so long i mean he's been on on on morphine for i want to say ten years but it's been a very he's been on heavy medications for a very long time he's lost everything he's ever had he's living in his truck and he's he's struggling to survive and he goes to this this therapist and some things that he does hurts them it hurts him to do things and he doesn't do it he shies away from doing them and they notice that i just don't see that their conclusions actually show once again it's if they shouldn't be concluding that he has to frequently change positions if it's only based on he says he has to frequently i mean they just don't do that five and a half hours of testing they don't just parrot back what he said about his problems they did lots of testing and determine the guy needs a free decisions and that's consistent with everything you know about his his history with having had a cervical spine surgery and needing it again  resources to handle the increase in the number of initial disability claims that we have seen in light of the economic downturn so this is for an administrator with that purpose but also point out that it's not a rule where you can't file a subsequent claim on the same title two with the same issues because you can if there's new evidence that's allowed so it's not a blanket denial where you have to choose to go forward with your prior case or not here  they chose that they chose not to the title sixteen complaint was filed and the agency did treat it as a joint application of more than one and in the first initial determination letter when that received it talks about the title sixteen and then it says you have no other benefits that you're eligible for and the accompanying documentation specifically notes prior to sit title to still before the appeals council in the redetermination letter same thing this  limited to s s i title sixteen also supported by that same comment and in the accompanying documentation so he was on notice that this was not a title to claim and it went to hearing as a title sixteen claim and nothing was said about there being a title two at the hearing about ten days after the hearing the letter was submitted it was quite begged we want you to consider title two but didn't say from what are you talking about the period that's already been addressed or are you talking about since june first what period it was that just a blanket request but it's not he had already waived his right to the title to at this stage he needed to reapply and he and he's right we would entitled to benefits that would bring him back to the actual date we were arguing about i mean before june first or before june sixth two thousand and twelve so to simply have filed the claim at that time would result all of this but it didn't happen  so there was no claim before the commissioner they had the opportunity they didn't appeal it when we told him you have no other plans before us and they didn't file refile when they had the opportunity so i believe it's quite to turner where it says or a physicians report does not assign any specific limitations or opinion in relation to the ability to work the l j does not need to provide any reasons for rejecting the report because the elevated not reject any of the report conclusions we have no limitations no functional limitations in either of those two reports there was nothing for the day to reject or accept and i would argue she accepted it because it just reinforces the degenerative disc disease wh why not because dr bruce concerns evidence that was submitted to the people's counsel and the appeals council made part of the certified transcript therefore when the court reviews they can say didn't  have before him but and in the court can't review the appeals council's decision but they do need to review the court should review the entire record including that evidence because it's part of the certified and sort of record and that's what the statute apply it's was submitted with it is submitted with the excerpts of record and i think it's attached to a letter by counsel and so it's there for review so it's quite legitimate to review it under certain sic standard because it understood and six if it was evidence that was not before the l j then the court can review it to see to determine whether it should be sex which requires materiality and good cause and i would argue neither of those are met with with dr i'm not sure how to pronounce his name doctor crash and letter because it talks about two thousand and six and two thousand  in my medical opinion he's likely to care i'm going treatment and be unable to resume gainful employment ok you can say why he can't he's saying he can't work and that's an issue reserve the commissioner it's clear within the statute and with her regulations a finding of just your disabled is not something i understand that if the matter was remanded would dr rashan be able to supplement his letter with more detailed that's unknown what we have i mean as a matter of law could he do that not whether he it would turn out that way oh yes under title sixteen yes i'm just going back to this issue concerning doctors and you can help and help and  i was a little unclear on what you're saying were you saying that because those doctors did not issue or make findings concerning functional limitations that indicating a severe impairment but there was nothing in those opinions in those reports anywhere that talked about a degree of limitation limited range of motion is the closest you get to it but it's what's limited range of motion that there's no development of that and these are the only two documents we have from these two doctors they were submitted to the appeals council after the decision in the previous cases the it did the ail jay give any indication about how much weight if any she gave to those opinions or don't she so we don't know whether she considered them or not we know you consider them because she talks about them but she doesn't say how much weight she gave those rights all refer you back to turner which says  limitations there's nothing there and that which is there if those opinions relate or may relate to bolstering the opinion of another health professional in that hypothetical yes that could make a difference i don't think we have that fact those facts here we have of a small window we're looking at june sixth two thousand and twelve through september thirteenth two thousand and thirteen there's very little medical evidence from there the majority of medical evidence that is contested before this court has been adjudicated by eight different adjudicators counting ill days this court and the district courts they all found the same way that these opinions do not support a finding of disability hence he's not disabled up through may thirty first two thousand and twelve these opinions incidentally except from an eastern help and these opinions all predate that and they're talking about for example nurse armstrong talking about how limited he is but he's been found not disabled and it's been affirmed all the way to here so i don't know how that opinion now often can change especially when it predates the period we're looking at i think she was november december tw may i ask is there something i am at a loss as to what issue you think may not have been supported by the other because i think well i did i'm just asking a general question that yeah definitely that that hypothetical shirt it's the same with d two thousand and seven and as if it was continuing all the way through but we have this whole period before where it's been affirmed everywhere that it's not disabled up through may thirty first two thousand and twelve so i don't know how dr creation's opinion then is going to be probative and i don't know what other evidence he's going to supply to support it when this is the first time we see him in this record is twenty fifteen so he doesn't appear to have any kind of experience treating with the claimant back to two thousand and six years a look at some records i disagree that it was all eight years of harvard records but if there's a look at some records and come to a conclusion that's fine but it doesn't give a basis for why he following fines edgecombe can't work at all and as to the limitations on the severity i can't remember the exact question that was asked to who edgecombe but of course he has severe impairments and it's the hard cases that reach this point where it's very close but that's why the l j gave him i think was less than lights or light exertional level limitation with other limitations accounting for the back pain and even want an extra step even though there was no evidence of a seizure and was not found to be severe impairment added protections in there so he wouldn't be around moving machinery or cars anything that might be a problem if he had a seizure no evidence of seizures in the record at all or any diagnosis of such so overwhelming and for example the moving boxes driving long distances and working on his knees when he says he can't do those things or he can only sit for five to thirty minutes but the and i don't mean to take up too much time but working on his knees if he can't do that he worked on his knees and then he sought medical care immediately after that so isn't that unfair to characterize he could do these things without also adding but yes then he needed medical care for significant pain i would say it's not unfair because that's not what the l g did with the noted and she specifically noted she's not saying that he can't do these things i find the fact that he ventured forth to do these things shows a mindset that he does not consider himself as limited as he's alleging so it's not that she didn't hold him how's that logical with someone who does this thing and  requires significant medical attention that he's been alleging severe back problems for years and years i don't understand why they all didn't either why he thought he could start moving all the box i think it's a reasonable interpretation of the evidence which is what the l j entitled to do that with the deference when it's a reasonable interpretation and well maybe you could interpret it other ways the fact that the mindset of somebody who says i can't stand for more than five minutes or ten minutes now is moving boxes and working on his knees that you can't bend or crawl it reliably doesn't that i don't understand if that if the guy tries to do something and he suffers severe pain and you know requires medical attention does that prove anything in terms of anything and if so what it doesn't prove limitations by his choice to engage in these activities that he then hurt himself doing that's not the not so he did these activities so that he would hurt himself and therefore have a better argument that he was it's subjective how do i measure this and one of the things there were other reasons she looked at as well this was just one and so i'd also argue that if this one reason was not acceptable the other the others are and that sufficient to support the credibility funny but that is just the nature of the beast analysis and it's when the l c a does not fully explain her analysis and it's not clear to the court which she was considering that's where we get into problems but here she was very clear and she was to for different reasons for why his credibility is the doesn't give an opinion about functional limitations then their findings don't matter and that's contrary to ninth circuit law it's contrary to social security regulations in this case neither of them gave an opinion about what they thought edge comes limitations were however dr helping found that he had reduced strength in his right deltoid and in his biceps and triceps bilaterally and he had  sensation in his left hand babson given that's undisputed that is an objective evidence from the treating neurosurgeon and the able to say didn't discuss that and she didn't include in her residual functional capacity assessment any limitation in the use of his left hand that would correlate with the level because that's when he talks about how he had trouble using his hands well that's well documented because of his fine  possibly due to fear of pain desire to have the evaluator fully appreciate one's level of perceived dysfunction and or habitual display of reduced abilities related to one's chronic pain cycle is peeing was not like this it was like this is really the two sentences that preceded that which is what i have focused on i don't like those and i know you know but i'm just saying that this is at the conclusion of the report and it's under the heading conclusion of findings for physical effort assessment and basically they say look we've done our best to give you our assessment but we don't we don't we don't have any confidence that this represents is maximum abilities because you know from our take they couldn't tell from their valuation and that's what i was saying to you when you're up here bright and i think what i would then focus back to is it's after that that he goes to two neurosurgeons and they both say hey you need surgery hey you've got weak muscles hey you've you've got reduced sensation