may please the court my name is jason scott rodman i represent the appellant in this case michael g cole this is a step five case at the administrative law level it is an appeal from a social security disability ruling that was also denied at the federal court level the two big issues in this case concerns first the role of the consultation examiner dr for the social security administration and second the role of unemployment insurance in credibility of assessment of the claimant at the social security level regarding the first this court has a case on point it's  is stablish is that to reject or discount a consultative examiner a position the l j must provide quote good explanation in this case the social security administration l j seems to provide other snippets from other doctor up pinions many of them preceding  up position opinion in this case and now a lot of this is on the record and you can read about it in the briefs but i want to talk about today a couple of issues that reinforce the arguments in the brief but  factual issues that line up with them as well specifically circulatory and shortness of breath issues it's one factor in dr barber's assessment of mr cole and dr chrisman in two thousand and twelve as well his a primary care physician for him pointed out part irregularities and that's on a  r three sixty one dr pass pointed out chest pain and shortness of breath also that same month that's a r four one two  second i want to talk about gastrointestinal fissures mr cole faced challenges during this time period both in the upper part of the gastrointestinal tract in the lower part of the cat gastrointestinal tract and so he was coughing up blood dr chrisman again at the air three fifty nine documented that was that diagnose it the diagnosis for some documented i think the short answer is yes your honor so what is it eight eight gastrointestinal illness that he has been diagnosed with has included all source it's also what what is the disease that he's been knows with let's call it there has been dispute among doctors as to what it is but they have definitely documented some of those what one of the alternatives the one that's been most talked about in the one word that's right and it's it's it's basically an infection of the lymph nodes and so they were he had a lot of pain in his left flank he also had pain in in lymph nodes in his underneath his shoulder but like i said do those play a role in dr berbers one must assume they did as i understand it treat what do you mean well first off i believe the focus here was primarily orthopedic issues not to my knowledge i believe the orthopedic issues are at issue in the case however it's it's an unfortunate record in that we don't have a lot of the orthopedic records  the case the injuries could be most worth the current the injuries that pushed him over the edge to keep him from being able to keep going back to work after he got injured which is something he did for years and years and years and years was when he was working in a trailer factory and he was up on a ladder fixing something and an end up camper with some sort of fa backup camera backed into him he crashed he landed on on his right arm which was his good arm his left arm is majorly problems as well and on his he usually you catch your fall when you land on your right arm with your wrist and when you cut your fall with the wrist that prevents a lot of injury he didn't do that i don't know why exactly i don't think that record makes it clear but so he had very long and drawn out issues with recovering from that they tried multiple different procedures they tried and on to a human t it's it's some sort of nerve transposition they weren't necessarily sure that was going to work and then it kind of didn't then they tried another procedure similarly somewhat experimental it also didn't work but yes what was the basis for dr berbers opinion the basis for doctors barber's opinion was his specialty at the visit so he did all kinds of measurements he did all kinds of tests and assessments based on his internal medicine specialty well can you hold the telephone dial dial a number well mr mr barber dr barber's opinion would suggest that the problem with a telephone operator would be that he has to sit for at least six eight hours a day and he dr barbara does not see him as able to do that and neither does dr get a rush to another conflict complicated examiner who said he could sit for thirty minutes   different things among others dr barber did say that his right arm pain was severe enough and it actually affected his whole body but what does that have to do is sit i think that with the way the language dr barber used was time to deal with his pain but also at issue in this case is the limpid you know pappy and his other related issues doctor but my understanding is that mr dr barber dr cashed up the other doctors who had concern for his of his functional abilities would have been concerned that he had pain sitting down because his lymph nodes were in i think that that's a good medical question i could i could look into it and document cases of how that's worked if if you would look like you're on a little late  ok i think that that's a standing question then but i would leave personally i'd leave that to the physicians in the record to to discuss i think this brings me to it to the second point well garnered point as to what you not necessarily entitled to huge weight but they outright disk discarded this examiner's or the other eric thank you your honor is that she please the court i'm eric truth on behalf of the commissioner we don't have to speculate about the basis of dr barber's opinion because if you look at the opinion form that he completed which begins on page three ninety nine of the administrative records there's actually space on the form to indicate the basis for the applying to limitations and and the explanation that dark dr parker provided for these limitations was either pain in the arm or pain in the brain and that's why the those were the issues that were reached in the case now these other impairments that he's referring to those weren't really at issue during the district court proceedings nor through my one paid in the growing of sitting in the growing does affect sitting and the a l j is main finding with respect to the growing pain was that it was short lived if you look at the medical evidence before and after  barber's august two thousand and twelve examination there wasn't the same kind of evidence of brain pain that there was on that particular day so if you look through the chronology of events there's actually a treating source opinion from october two thousand and eleven that says that he has absolutely no difficulty sitting standing and walking then in two thousand and twelve there was a done that noticed some abnormalities in his lymph nodes and they did a biopsy they did the biopsy and there was some swelling associated with the biopsy and around that time that was the biopsy i believe was two months before dr barb him then by the time he goes to his his ordinary doctor again in november of that same year he's telling his doctor that he occasionally has pain in the in intermittently swell and then he tells another doctor in december that same year that the pain from his growing impairments is well controlled with medication so it step to the algae found that this impairment was not severe for a continuous twelve month period because it appears to  receiving unemployment benefits it was a combination of factors it wasn't just unemployment insurance it was also the fact that he was not receiving any treatment for his arm impairments during that time as well so that's a separate point that she made she she seemed to think that the fact that he had that seemed to be a major element in her analysis the fact that he had been out on employment  inference from unemployment insurance is that you have to certify that you're ready and able and willing to work and i typically have to document your job search efforts during the course of collecting unemployment insurance so that's that's the logical basis i don't understand is it seems if i could follow up on judge posner's question it's troubling here because the ale jay seems to have adopted a logic punishes people for who are in the border areas and trying hard to find work in this case mr cole was not well educated he was an industrial worker was in the elkhart area i'm not i'm not industry very very hard but he's got a long work history he's trying to get back to work he says he's looking for work but eventually those benefits run out he hasn't been able to find another job and he's not our doesn't to discourage those i think what the outfit was saying is that if he was really unable to work and was trying very hard to go back to work it's unlikely that you would see no medical treatment during that time because if   chronology both of his the end of his worker's compensation settlement the lack of treatment as well as the timing of his application for disability benefits she did she ever ask him why he didn't seek treatment d months they all j did not ask such scary ruling ninety six seven piece as if there is a reason evident in the record then they l j should consider that explanation but he's never provided an explanation for the lack of treatment was the issue even raised in hearing i mean it's raised in and every hearing because the regulations make clear that we need ministry with you know i don't believe there was a specific we're talking here about this of the worst economic crisis  years i'm doing the math roughly correctly in the fellow who at the time is on unemployment compensation i'm not sure what she means by saying he had sufficient income while he's only employed at this time examination i believe they all share saying we have two doctors that say you're released to go back to what you collect unemployment insurance you're not getting any medical treatment there is no evidence that these problems no way  that reference to unemployment that bothers me which she said the hail to the timing of his filing for disability benefits summer two thousand and ten appears to coincide with when his unemployment benefits were running out the timing of his application suggested was economic need not disabling medical conditions that prompted the claimant to seek disability benefits understand that he's receiving unemployment benefits please so if he's receiving these unemployment better since he was getting seven thousand you know in the fourth quarter of two thousand and nine and so on got that for four quarters that's almost thirty thousand that's more than you know i think you get social security disability so why why wouldn't it be perfectly sensible for him if he's doing better with unemployment benefits to wait till a run out before he asks for social security well to collect unemployment benefits you're supposed to be able to work whereas to collect disability benefits you're supposed to be unable not only to do the m act in the right but the act in the regulations say that the available actual availability of work is not what's relevant to disability what's relevant to disability is your medical ability to lead that's true but if you're trying to evaluate somebody credibility yeah you've got to look at the realities that they're facing and you know he's not so obviously disabled that he can't try to get to find work  he's in the gray area it's important to note that the vocational expert identified sedentary jobs i wonder about those jobs once a rental car itself rental consultant have you ever seen the company for example i rent a center it's seven hundred  what is a bakery production worker bakery production  worker i don't have that printout from the dictionary missional titles i'm sorry i don't have the specific description that job but there are several jobs here both at the light and sedentary exertional levels that that were never challenge like to point out that he had his own vocational expert christopher young he was certainly capable of offering counter expert testimony and getting back to judge hamilton for example you found that this was was a relative the inference that the main point remains that you have two doctors deciding his worker's compensation case that are saying as of may two thousand and nine he's able to work there no medical evidence for almost two years and then you have this late developing growing and growing impairment so even if we give the claimant the benefit of the doubt in this case there's still substantial evidence in support of the decision you have the medical there's evidence that can support it my question is about the logic no i understand i think there's you know i think it's assume that there's a basic inconsistency even though it's understandable from an individual perspective from running a program perspective you don't want to claim at representing to one agency that they're able to work and then representing to your agency that they're on equal to work thank you very well thank you it's good you're moving for the thank you ours first briefly regarding unemployment insurance might have seen it's all all that applying for unemployment insurance means by mr cole he's not a position is that he wants to work he he desires to work secondly regarding the good explanation needed for rejecting or discarding a consultative examiner physician holding of that case is that if you've got a condition for which surgery has been required and pain meds are required it doesn't mean that it's it's not a substantial condition it means that is a substantial  are you familiar with our cases in which we have upheld disability benefits for people who in fact are working i guess there are cases there are cases that is there are people who are totally disabled but because of desperation they will force themselves to work and there are cases going the other way as well yeah i know but the fact that the that he's getting unemployment benefits which is you say you think it's very important that he actually have been seeking work he could be seriously disabled but seeking work is the same issue we have when the l j is talking about the applicants doing work at home cooking taking care of kids there's no alternative for these when there's no alternative they will do things that are very bad for their health and how do we know that isn't the situation with with coal that he was getting unemployment benefits in the hope that he'd be able to find a job which he was unable to do and that is why i referred to the medical opinions right at that time to doctors releasing him for full work and also the lack of any medical treatment during that to be clear period if he was bending over backwards to do as much as he could stands to reason he would suffer some sort of pain need some sort of treatment to bravely go forward and that's why at the beginning of this discussion i thought it was important to consider all these factors in combination as opposed to splitting them apart because each factor standing on its own could be persuasive in an individual case but if you look at all of the factors combine the medical opinion evidence the objective medical evidence the lack of treatment during the record relevant time and the unemployment insurance all of those things combined together  are more persuasive than any individual factor considered in isolation ok niles thank you so thank you to both counsel moved