jesse she was sixty two years old she's now sixty eight and that's important in terms of this is obviously a so security disability case and the reason i say that is jessie would be forty two or fifty two i would have told her to refile it rather than go all the way up to the court of appeals and then we would try to reopen a previous application or when at the second application but she doesn't have that luxury in this case this is it period of time correct from sixty two until i would believe a sixty five at that time and i know they've been talking about moving it to sixty seven and later but i think that once you get to sixty five you're on so security what's your what's your birth year fifty it was nine twenty six fifty i think it's sixty six but go ahead if you're off the point she had a sixth grade education she did go on to get a g and the administrative law judge judge ferguson pointed out she did have an impeccable work history and i was also noted by a magistrate who had the case first and they gave a recommended disposition to the federal court judge judge baker that that this is a lady that worked hard all our life and just got to the point of having problems to where she could work now at the administrative hearing before judge ferguson they went nash testified how out of a five day work week she she could not guarantee four days her brother willie kelly testified at the hearing how he would help her out help her go to the bathroom and that as a brother he would not even consider hiring her based on the problems that she had then the judge asked the vocational expert mr elmore assume she's going to miss three days a month if she can she work and the answer that question was no which is why we believed she should have won at the at that hearing but she did so we pressed on now when i first started doing these cases many years ago some of the questions that would be asked by the judge would would be assume she's going to miss at when i first are due and it be assumed she's going to miss three to five days a month we're now gotten down to because of the unemployment being so low assume she's going to miss one to two days a month and if and if she can if she's going to miss those days and she's going to be considered disabled based on what the vocational expert will say so going on to the recommended disposition that the magistrate had given to the federal judge it was noted there were a couple of things as in the record does not contain any opinion from a medical provider out frequently to prop lott out frequently or prop her feet up yet and one of the first visit she went to which is in the record sort of five record at two o nine and this is important because it was one of the things that the ministry of drop law judge had brought up was that her date of onset was one thirty one twelve yet she was unable to go to a doctor which was she was sent to a doctor by social security on october twenty first two thousand and twelve but and the and the recommended disposition they noted that there was no opinion that from a medical provider that mrs nash needed to lie down for a gauntlet or proper feed of however in the diagnosis you was to eighty five to eighty five and the conclusion even though there is a diagnosis a blower back pain in the conclusion there's nothing that the doctor says and you all can look at it that there's nothing that the doctor says that this lady need to lose weight which would have been obvious and that to eighty five and five six with a diagnosis of low back pain and her testimony and her brother's testimony that yes she was going to need to lie down and she had to lie down that again this goes to her ability to abstain substantial gainful employment five days a week week in week out but i think you i think you're talking are arguing credibility issue hearing is and in federal court to go beyond the administrative record if you don't sign any cases where we've allowed that and i can remember one i agree on that although i do i do i have cited a couple cases where based on in your brief chair that's we almost almost never and my in my experience never order admit an evidentiary hearing in a district court because the law says the supreme court says you do it on the administrative record if the administrative record is inadequate than the rape the proper remedy is to remand to the agency and so you're not lame of error in the district court for refusing to call a hearing without a citation as it's just not without merit but it was gone with the as you correctly pointed out there were things that the court had put in their disposition that we had is just as just not federal procedure and social security cases well if the if the if the record is factually inadequate it goes back to the agency if the record is factually adequate then you argue about what finding should be made the a l j should have made whether there is substantial evidence for the jays finding on the administrative record and i believe i did argue that at the at the federal court and you raised it on appeal but but don't talk about the hearing that's just not always all right that issue is that is that's a non issue and in my in my view well the only reason i was raising it was because i was recommended disposition and it was in the recommended disposition of the magistrate and i'm pointing out some inaccuracies in what they're what they're basing it on and as an example they said that they and the magistrates disposition said there was no record of diagnosis or treatment for the bladder issue that she had that required frequent brite i agree with that i went through that i went through the record quite carefully and that at two forty one she reported urinary incontinence and your port there is no no note of a further complaint and so the only thing unless you have other things on the record on incontinence joining this record supports is it was being medicated successfully  being medicated but that it was still there a lot i don't know it would be like no medical evidence it was still there as they did as they potentially disabling condition and i think the ail j was eminently sound it in reading those two reports that the fact there were many over for it's a present verb of the over fifty but it's not disabling right and but with her it was the need for frequent bathroom breaks which was noted in the record earlier i mean her testimony and so but but so that's not that's not a medical evidence is inadequate to support the j's finding it's in the tack on his discounting of her subjective complaints then i would go back to the first issue raised which was she was going to miss time for more and we had a vocational expert that backed that up that said if she's going to miss three days these but what was the evident she was going to miss three days from working she had no more insurance so the first time she went to see a doctor social security sent her to a doctor which was october twenty first two thousand and twelve and in that record the diagnosis by the social security doctor was lower back pain complaint by the patients which then can be explored medically by bovary idea of tests that we see in all of these cases that's true but he did put restrictions on r g p didn't just say ok then you have low back pain so you're free to go and they were not they were please the court my name is jim sides and i represent the affably the acting commissioner of the social security administration nancy berryhill this case really examines the jurisdiction of the district court nash reporter bladder problems to record is devoid of any diagnosis or treatment for such an issue that's wrong right that would be correct that you agree that's wrong yet as judge logan pointed out that was a diagnosis based on a self report that you know for the first time she came into the doctor and reported that she had you're an airy intoxicants so we got a diagnosis and there's also treatment because there's a pill that is correct  does the record reflect how often the pill was prescribed and given and reap prescribed all that it it does she went to this doctor two weeks before her a o j here  that you know that's over two years after she alleged that she get the sable that's actually even though she alleges that she had incontinence back in january of two thousand and twelve had all of these various impairments while she was working for them all this time she didn't receive any treatment just two weeks before she has the l g hearing she goes into a doctor reports urinary incontinence gets the treatment for it and then drop it does not appear in the subsequent two medical reports are those by non examining state doctors no it was not treating doctors or something yes the first examination she referred for examination of the problems then after that in june of two thousand and fourteen she went back to dr johnson for examination and neither dr shocks nor dr johnson's second t there's only one ok i know there's refilled that's what i'm driving at i believe that the first prescription was for thirty days and so since it was only two weeks between the first examination  examination i've would assume that she's under the same percent you're pretty confident just thirty days of pills i believe that there was thirty seconds of pills that was given the right to refill but since it was only two weeks we evidence says he as he came up with his determination of limitations so he could formulate his hypothetical question the ale jay said that there was not had medical evidence to support any type of bladder ok so so isn't that a problem with this that there's no discussion of it whatever it was whatever the medical is with respect to this issue does doesn't the you have an obligation to discuss it let the reader lead a review or understand that it was actually considered what the l j did is he looked at the entirety of the evidence and he that she denied it there is i would infer the fact that she does not report the need to lie down to profit her feet or that dr dooley does not report that she said that that also that was not a limitation that is for the well answered either isn't there some testimony about propping up feet though yes there is testimony and by you could help us who's who's the testimony by yes the testimony is mrs nash well how about the was it a brother the brother indicated that he helped her to get to go to the restaurant and he did not say that he lives with her but sometimes he discounts over so if she's living independently obviously she's doing this on her own because she's not just sitting on the couch so willing yourself and just the fact that she is has the opportunity right now to lie down and prop up or doesn't mean that that's a work limitation there has to be more than simply the claimant subjective complaints saying that these are this case that would indicate the limitations of a need to lie down need to prop up the feed need to frequently use the restroom that alle j only has to include the limitations that are supported by the record in the hypothetical question to the vocational expert in this case he did the vocational expert testified that the past relevant work of telework  problem with this that the we have to know that they are considered the medical evidence whatever it was and that it's really unfair to make a credibility determination in written decision without making reference to the medical evidence that might whatever it is that might support the subjective comply of the of the client isn't that just a big problem here now that the l g a is required to consider all the evidence is not required to discuss all of the evidence and even though there is a mere diagnosis of incontinen mere diagnosis of loan cannot form the basis of the limitations there has to be some evidence in the record supporting these limitations the prescription the per script sion is a medication that was being prescribed and well as evidence you said some evidence that a doctor gives a prescription for something that some evidence sometimes there yes we're not denying that the doctor diagnosed based upon herself reports of incompetence and it would be obviously reasonable for a doctor to be treating the symptoms that are reported so we're not contesting that there was medication that was prescribed but there still has to be evidence of functional limitations resulting from the impairments all that we can find in this evidence is a diagnosis for incontinence based upon the court a perception for medication that apparently  successful but to me you're missing you're missing a bottle point here we're reviewing the ariel j s written decision we're not just doing some kind of a dyno review of all the evidence and making our own car we're reviewing that what the  j went through here and we have cases that say it's a problem where they l j has ignored appears to have ignored or admitted or forgotten about or overlooked  medical evidence that would tend to support a subjective complying and it seems to me that you've got you've got that problem here what do you think about that the l j while he did not specifically state that dr johnson diagnosed incontinence he did make a finding that incontinence was not a impairment that was well describing the initial allegations and then do you live or die on the sentence there is no persuasive evidence of bladder problems and no medical sources have identified or documented disabling limitations period is that the only mentions of bladder yes those two talk would be  d which is about as many times as it's mentioned in this record by a doctor although he did not specifically address dr johnson's diagnosis it did address the bladder issues  wasn't something that he just forgot about how do you know because he specifically stated that there was not a medical opinion supporting disability after he mentioned discussion of the bladder issues well you know medical opinions don't determine disability there was no security purposes that would be correct it is how do you know he didn't just forget overlook that she had been to the doctor and he had to have treated her for this because they failed a specifically in that decision says that he consider all of the evidence on the record and we should not assume that they did something other than what he said that he did the ail j in every single this is an incredibly short record the fact that he didn't specifically to this doctor's report makes it highly unlikely that he just overlooked the contents he specifically raised it or addressed the latter issues and said that there weren't any limitations resulting from it he does not have to include limitations from bladder issues in the hypothetical question of the record does not support our weak conflating here the severe impairment inquiry with the subjective complaints of of disabling impairment in korea i mean the first the first question is there's a is in incontinence or bladder problem is that is a severe impairment right off that would be what do you what do you need what do you need in the record for that he obviously did not considered a severe impairment that is correct and there the absence of any medical opinion or evidence of medical treatment is almost conclusive and that is not quote diagnosis and prescribes and the second it is not listed in in her systems or issues that in the way jack joseph breaks it up it's not severe impairment there has to pretty clearly yes yes there have been out now what's the relevance when that's not a severe impairment what's the relevance in the in the fourth and fifth step analysis of disability yes if it's a not so bear impairment that entails that it does not involve a significant degree of limitation although it can still contribute to an overall disability correct going back on the hypothetical of somebody being off for three to five days is now down to one to two days and one of the reasons why i wanted to go into what the magistrate dealt with in terms of the back and the bladder is that now when i first started doing these cases that was mainly the hypothetical besides the usual ones the last type of thought that it would be assumed this person is going to miss three to five days now we have hypotheticals th judges do pretty much across the board assume this lady is going to be off task twenty five percent of the time and the answer that the vocational expert will give to that pretty much every time is like the assume she's going to be all for one to two days and that is she's disabled if anybody's going to be off task twenty five percent of the time then no they're not no employer's going to enjoy that and so when going with the back in the bladder it there's not going to be too many employers going to want her having to lie down during the day or take frequent bathroom breaks as she did point out at the beginning in terms of she had an employer that was receptive and and kind of carried her along that way and so if you that is not  medical the impact of the medication was is is there there's no evidence of that because the prior employer was was tolerating her need to go to the bathroom an inordinate amount of time before she was medicated that's correct ok now then the question is since since successful medication defeats claims of disability the question is how successful was this medication and i don't know i don't seeing in the record that three work attempts after the alleged onset date but he said they were not substantial game again flimsy dr because she was only trying and it wasn't successful she was trying now is the read does the records reflect whether the reason she was unsuccessful was incontinence no i don't think so i mean not that there's not that you don't mean you can really help but it was the back pain that was that was the problem and i go back that's that's that's a good point because again this is a lady that was sixty two years old and had an impeccable work history she didn't want to stop she's had to borrow money from her family and so this was not the route she wanted to go she wanted to keep working and that's why she didn't stop she kept going now the question would be based on what the vocational expert said that if she's going to miss a day a week which was in testimony then there are no jobs and i guarantee you there's not many employers for full time work they're going to want their employee to be out four out of you know only work four out of five days of the week but yes she wanted to keep going because this was not the route she wanted to go and one at one other point is that's what i wanted her to be able to do with the magistrate and the federal district court judge was to sit in this room and listen to what is bothering the court about her case because she can't come the st louis and we asked twice for hearing so that she could have understood  zit incontinence is it the back what's bothering the court we didn't have that opportunity just going to ask you one question just to clarify to make sure i'm remembering correctly did she testify at the hearing that she takes medication for an overactive bladder but that even with the medication she's always going back and forth to the yes restaurant yes and in fact that the problem was and i didn't realize until i saw the the oxy butin or whatever whatever the drug she's taking was inaudible but if you read it it was on page they was twenty eight where she had she had described what it is that she was taking i believe based on again based on what the one hypothetical that the administrative law judge did do with mr elmore it was proven that she was disabled because she would miss time from work