pace the ale chain must ask the ve how this would affect the ability to work and restricting the hypo to simple routine tasks or unskilled work is not sufficient but that is what the judge did on in the record and that's what the judge did in her opinion the ability to perform simple tasks is different from the ability to stay on the claimant had a consultative valuation with a doctor burlingham psychologist and doctor burrowing i'm sorry burlingame part of me found that calculations were also the minister who are judge found that she could return to that she could not return to her prior work as a sales associate yet the v found that she could be a sales assistant on to the the findings of that she's on able to be able to do math calculations she testified at her if you're going to have someone to give her some change she could count but that if someone gave her a ten dollars bill she would need help evaluating if she was giving her getting the correct change  j i was actually the tourney of record one of the a j and it was a very interesting thing that occurred and in reviewing the transcript it just intensifies but i was asking questions of locational expert and i was asking questions about sedentary work at each fifty and the judge actually cut me off and said that there's a grid for that there's what a grid grid is that is the chart that's used to determine if someone is able to work or not you and you know did you make this argument in the opening brief before us about what occurred at the hearing about the so called conflict here yes yes ok if you could direct me to that i think i missed it i thought it was in your work library indeed and if i'm wrong i apologize i could have missed it and you can address that later ok i don't want to use up your time here for you thank you i appreciate that i do believe it's in there because i believe that the breakout of the two jobs is actually in my up with those two jobs current are and how it conflicts to you can just give me a little bit of what like curt sometimes called atmospherics it seems like a very extensive a l j opinion do all the a l j opinions look like two things st of all some of them are that long and that is case but even though it may be long that doesn't necessarily mean that it dressed the question right and that's my nd question is is that are these boilerplate things that are put in or is it i'm just trying to get a sense of what your work looks like usually well what happens is on it's actually what i understand is the judges don't actually write the opinion it's written by writers and then it's reviewed and approved by the judge but yes i believe parts of it are played although i bet because some of the language we see consistently over and over again on that may be part of the problem here because it and one point and opinion i believe this is page  paragraph that she gives partial weight to the state agencies medical consultants physical assessments and then in the next sentence word for word except it changes to considerable weight needs to be able to tell them what weight is given to the opinions the judge the judges are required ministry lodges are required to evaluate and give weight to the different opinions and so judge to say in one sentence she's giving partial weight and then in the next immediate sentence to say that she's giving considerable weight well what you're sorry go ahead no that i don't have i can't find it right in front of me n you know it's oh it's a long opinion so there may be different explanations given a wrong along the way but i don't know if that conflict on its face is ever fully resolved as to whether this is of partial weight or of a considerable weight to the two sentences that you just read because i'm not sure they conflict and i need your help here so that the a of this is on thirty or thirty one of the thirty one you know the undersign gives partial weight to the state agencies medical consultants physical system and at the initial reconsideration levels the claimant would be limited to work at the light exertional level with occasional postural limitations the undersigned gives considerable weight to the fine that the claimant can perform work at the light election exertional level with occasional posture limitations it seems to me so the agency says that she's limited to that and they give impartial way to that which are also finding considerable weight that she can in fact perform in that limited capacity how is that in conflict well i know the partial way the considerable weight are in qatar different right they're talking about different things ok more it seems to me that you're talking about and then they give considerable weight to the fact that she actually can perform at the light exertional level before she had significant changes in her medical condition so that the findings by these two doctors who are reviewing the record is really of a different person because of the fact that she didn't have a rotator cuff tear on the left which was diagnosed afterwards after she felt he a year or so later so these findings are based on faulty information because the situation changed dramatically after the after the fall i represented years ago the reason i started doing so security cases was i represent people in steelworkers who had rotator cuff tears and in essence after that they could never go back to work because lifting over the head was limited at best so those people ended up on so security disability because they could no longer work for buffalo steel when they went up on a medical retirement but the point i'm making here is that these findings by the state agency medical consultants or before the analysis or the additional medical issues and the problem is that iran are added one limitation of occasional lifting over the head without any medical document not mutation on which to base their there was nothing in the record she just was trying to compromise in some fashion and decided to add that but that clearly was on on her part a medical decision that she made that this person could occasionally lift without knowing because that's a medical limitation that she gave and that lifting over the head which allows for these jobs if she had said no lifting over the head then these jobs wouldn't have been available but didn't different circumstances would have put her in said there so i think that the circumstances have changed there also is not anything here that asks if she could do the moderate that's found by the psychological studies never addresses whether she could do this in a forty hour job in fact a fishing putting of fishing supplies a way that these are only done on a part time basis and so there's she was never a judge never goes to the issue of could this be continued those moderate limitations on a permanent basis on a forty hour basis and i believe my time is just about so thank you thank you y good morning your honor and may please the court my name is david marvis and i'm here on behalf of the commissioner of social security and what i'd like to do if i could is to start just briefly with some of the points that were raised by your your hon i'm not the st i wasn't the attorney on that case so i'm not sure well the question you're turning now so how do you distinguish this case from that point so we actually my position and i would like to explain to your honor's today is that this case is important because of the differences that it that it that it poses so here's what we've got we've got not we've got a decision existed for now five years there's a lot of discussion about what the case how it should be applied and what it does to you know sort of a governing standard and what it didn't do is change that standard and what is always been true for mass you know in mass e o and aftermath is that the a l j must those findings are supported by substantial evidence so what happened in mass you know and what this court said is that the l g a ignored without explanation moderate limitations in concentration persistence or pace that was found it found at an earlier step so this gets complicated quickly obviously but because of the sequential evaluation because of the functional domains that are assessed in the one step and then the functional capacity that sets later but what i'd like to do what i'd like to suggest is that it's this case for your honour's today is not very complicated because what you've got is an l g decision that explains a couple of things that are crucial to this it explains that mr newberry would be moderately eliminate limited excuse me in performing complex tasks that's it page thirty two dollars in the decision but the l j goes on to say her concentration and attention were added that's a page there so she could perform unskilled work requiring simple routine repetitive tasks it's page thirty three dollars so when we bring massimo into the analysis because because what i just said now is his is looking at this decision find that that claim and that individual claimant is limited to simple routine repetitive tasks and the answer the question is yes it's gotten that is not inconsistent with messy because what needs to happen is in what didn't happen in ma they shouldn't they needn't pay but what the l g is responsibility is there's no magic words this court hasn't held that there's a magic words requirement another number of other circuits have addressed that very point in and  commissioner brought to this court's attention in the recent decision from the rd circuit and hess in his letter a couple of months ago that we filed and i think that decision published decision from the rd circuit answers this question quite well there's no magic words  that's the problem isn't it or if there is a problem the a l j never expressly times says that the defects in concentration persistence and pa concentration chest persistence were adequate for simple tasks but it does it just says they're not adequate for a hard task complex work right well that's right but that is  then if their model she's moderately limited in these complex tasks right and then she is able to perform simple carry out concrete three step directions good recall and follow a simple command that she would have a problem that the evidence establishes she has a problem so in that one i would sort of the way i've framed either to be two questions in and this is really the nd question so the st question is whether the  j incorporated those state agency consultant opinions and they go on detail she didn't include every word that the state agencies consultants found were included in there but of course did include the idea that they that if she is moderately limited in complex tasks you know the question that your colleague brought up he kept saying well this these doctors didn't consider all of these later things that happened to this woman sure so i think i want to sort of put a that relates to the physical aspects and that's what my colleagues talked about i do think it's before i answer that question i do think it raises an interesting point on this st issue this mental aspect because what you actually in this case is is interesting in one way when we're talking about these mental limitations miss had a lifelong learning disability so she worked for the full time for over twenty years despite that learning disability and that's what we're talking that's why the l j included the limitations that she did and found that this work needed to be limited tailored to her mental capabilities so none of that changed there's a concentrated examination but none of the mental  changed some of the cases that come to this quarter district court certainly have to do with worsening depression worth of worsening anxiety something along those lines we don't have it we have a lifelong learning disability that the l g a accounted for but that mr newberry was able to agency physical consultants rendered opinions and those were earlier no question they took some of the evidence of the evidence that was available at that time and didn't have access to some of the other  but the ail j considered effort and so what my colleagues argued is that that sort of implied i think is that a logical bridge requirement is the same thing as needing an opinion from a doctor on every single limitation in the archives and that's not there is no requirement that a specific every specific fine be found if i use that word again in some doctor's opinion that's say here's this opinion that supports this limitation that exactly mimics this includes this limitation and here's this opinion exactly this limitation that's not necessary what the a l j had here is evidence so there were so question of whether that opinion is worth more than any other assessment of this this launch to eleven says is open but more specifically with the l j says is that she doesn't explain and i guess it's actually related to what i'm saying the that has normal muscular skeletal findings normal strength and tone in the left and right shoulders so the l g is saying miss mathewson own notes don't support this and that's perfectly acceptable the l j has takes all the evidence that is presented and says is this worth wait is this worth wait and what wait so that's that's what the j did with respect to the physical condition again there's always by definition there's going to be a gap between your and this is this a this case is interesting because there's this is sort of the latest possible point where you can get an opinion which is after the hearing but there's always be some gap between when the l g a decides the case and when the most recent this case there was a gap in the l j went beyond what the state agency consultants found and i think one of the reasons we're talking about whether there is some inconsistency between what the ale jay said about those two or how the l j explained her analysis of the state agency opinions is the point is the elderly said no those who are older they didn't account for everything so we're going for we're going further so what we have w got limitations to her ability to reach that's you know entirely appropriate and what one would expect if you look at the record in this case you'd expect that the l j would say i'm not going to adopt these older opinions wholesale i'm going to say that there is some support for them and that's the l g s discretion to explain why that there is some support for the slight limitation to some postural limitations but i'm going to go beyond that because there's more evidence and i have access to more court are not articulating some per se rule what needs to happen is that the a j explains why the findings are what they are that's always true that's not that wasn't new  difficulties and concentration persistence of face what the l g a did here was the same thing is to say that this claim is a limitation to complex another claim it may well need a limitation to another thing and that's not improper the algae doesn't need to can't specific words because because the l j explains what this claimants difficulties are and what this difficult what this claimants difficulties are and have been for her entire burlingame says what this climate has is difficulty in processing in math and language so what one would expect is that the ale j excludes jobs to patients that would involve that complex work the problem here is complex it's not distractibility it's not you know any of the other things that might warrant another limitation and that's that's again assuming back what you've got is an l who says that mr berry is going to be moderately limited in one regard in this complex task performance but her concentration of persistence are adequate and so there's no mass no error there's no problem under messier because what to your point there's always going to be room for more explanations always going to be more words that can be said and if i were to write this today i could write it differently but that's not what we're here for what we're here for is to say can this court and the reviewing court brief we discuss the fact that these jobs require certain items certain according to the d o t certain skills if you will and that she couldn't do these things because of the because of the the noted limitations though the reference specifically to a column to the thomas case was not made in the opening brief because the thomas case had not been ruled on by this court so in my reply brief where the there it's just not in the quotes from thomas because you don't characterize it as a conflict but you're saying it doesn't have to have that magic terminology that you were laying out the fact that there was a mismatch i didn't have the great quotes that this this court gave me for my reply brief but yes what i was saying here was that how could she possibly do more thing and ticketing merchandise how would she be able to do inventories of stock if she's limited in the fashion that the fee but why are they in the hypo but going back to this idea of a doctor going percent so if she were to occasionally lift twenty five percent of the time and a full time job that would be ten hours of a maximum and it would be none of us can possibly  over their head that is a decision that only a doctor can make the i'm not making the argument that she needed to send out to the doctor but when she decided her honor decided to throw out the p s opinion as to the ten pound limitation to things up and say st of all if you read the discussion in the in the transcript she actually i asked i asked her specifically if that was what she was looking for short synopses and she said yes so that's what i gave her yes it was from a p s a but it was it was but  all the limitations were and where it shows up during examination just for some short because very often that's what they ask for an opinion and if there was a problem then instead of instead of telling us that wasn't good enough instead of denying it because by here's the other problem by pulling away that statement we now have a clean slate it's like the the white on the ceiling here we don't have a medical opinion as to whether she can lift twenty five percent of the time over her head and doing these jobs which basically in doing inventory and doing stock work in order clarke there are limitations here that require more than just will require twenty five percent of the time left so in essence she played doctor she gave a limitation maybe with the best intentions but why not say because of that that she can't lift at all or she can't lift even occasionally maybe she can only lift a total of three hours a week remember the jobs that she had those two jobs that she said she couldn't go back to