good morning your honor sir i'm peter gorton i'm the attorney for josh rahim in the say so skirted disability case he joshua underwent two unsuccessful back surgery starting in two thousand and four finishing in two thousand and twelve after each one there was an initial period that he got a little bit better as to be expected but the what's what's important for this case is that at the end he was actually worse and and the last that the case was heard in june and fifteen the last  lateral resurface recess severe impression upon the left lateral resource recess pain going back to baseline for the entire time joshua wants to work if he can he went back to college college is not like work you don't have to be there moment after moment be there every single time the vocational expert in this case said in order to satisfy the government's burden which i haven't heard a case of proving if there are a significant number of jobs in the national economy they have to show that the person can more consistently the vocational expert said even eight percent would start to erode the numbers and in this case the numbers are very small anyhow under thirteen thousand or around thirteen thousand at fifteen percent no jobs independently and separately if there's even one absence no jobs our only claim before this court is that the physical conditions the back problems result in that no  claim that the psychiatric problems result in it though so just to be clear what what is the r f c that is relevant you know in this in this appeal the the r f c that's in question is that the judge found that the conditions notwithstanding even that testimony of the treating orthopedic surgeon bennett found that he would never be off task found that his condition would never change he would never have a good day he would never have a bad day he would never be absent that's what the judge found he also found he could do sedentary work with a bunch of other restrictions and the vocational expert said with those restrictions and no time off task and no absenteeism there are only three jobs and they only have about thirteen thousand in the that takes that takes into account mr hammond substance abuse and that certainly would affect the psych and that's why we didn't bring and that's why there's nothing in our brief at all that suggests because because you've got the two of them and they had a medical expert on the psych in the medical experts said that the substance abuse does raise the psychiatric problems it doesn't raise any problems with the that is whether whether there are there were any jobs in the national economy that one could perform right and that is why we have not i but i'm looking at page thirteen because i don't like my brief memorised but that is why we've not raised any psychiatric issue that's that's exactly the reason why we've not raised any psychiatric issues the only issue we were eight is that the physical problems and three different sources including the orthopedic doctor who saw the claimant on at least five thirteen fifteen again it was a june fifteenth five one fifteen four ten fifteen one two fifteen eleven and fourteen five five fourteen sometimes his his physician's assistant is looking and then he goes and reviews martin dr bennett that's actor bennett and dr ben donahue and he reviewed it he did see him certainly and i look at it during my time off he i know he saw him five three fifteen five five fourteen he specifically says i reviewed all the records the m r i is the jurisdiction he was forgive me he was there was a surgery and it was going to be my question is why isn't galleons view here well i want to daniel would have done the surgery back in two thousand and twelve sold it to the case came up in two thousand fifteen i mean i can tell you because i know gallion just you know here are my records i'm a neurosurgeon i'm not saying did least he just doesn't but that's neither here nor there the bottom line is the last time we saw him was two thousand and twelve so bennett has been treating him since then specifically for the problems that arose after the surgeries after the surgeries were unsuccessful and bennett says and the other two doctors who one is a is a chiropractor but they also say it's a primary care physician yeah they and i write about those the three doctors you're relying on are bennett who's a neurosurgeon so i'm for the year and the stover is a chiropractor and co equal is a primary care physician right thirteenth of february twenty second specialties that's my question well bennett bennett is is a challenging their specialty is i'm just saying i'm trying to figure out what they do for a living co equal seems to be a primary care physician that treated him for an order years and are the only opinions that because of the and bennett specifically notes the inflammation that inflammation causes some days to be good some days be bad he's going to miss more than a day the judge twenty zero absences zero and that you're going to fidget you're going to  it again you're going to have a bad day and you're going to be off task nobody says anything other the government cites the psychiatric providers but they obviously it was a girl gives marked impairments is never asked about task is never asked whether conditions get better or worse argumentations squatting bending lifting hearing mild limitations for sitting standing walking pushing him right and specifically never asked whether some days better some days worse whether there are some parts of the day or whether the medications might be such that he would they just they don't ask and regrow no doesn't cite there's a number of cases and forgive me that i don't know i'm off the top my head but there are a number of cases that say when a medical provider is not asked about something you can't presume he's going to say something else if you if you see the eye doctor he's not going to talk to you about the loss of hearing mcgurn i was never asked how could use there is zero way for you to still prevail on your objection to the step five determination well we argue that while without the off to their certain thousand jobs which is a hair above what the courts allow the courts allow about ten and there are some cases under thirteen the point is that with only thirteen thousand if there is if the judge looked at all at the ability to stay on task or at all at the absenteeism then the question is mr vocational expert you know you've said you know that there is non that one day what if it's less than one day that it starts the road at eight percent is it under ten thousand we don't know that because the judge made the finding zero percent off task he doesn't have pain he doesn't have to tweak the medications don't cause side effects he doesn't have a need to rest he has no time off task and he has no absenteeism it was never given to the vocational expert  good morning may please the court then labor him hearing on behalf of the commissioner of social security the commissioner respectfully submit the jays the situation in this case specifically the residual function capacity for a range of unskilled sedentary work is supported by substantial evidence that evidence includes medical opinion evidence clinical findings as well as non medical evidence we respectfully disagree with mr hemans position that this court's decision and smith the burial was decided in correctly and in that case in the smith case mr smith who was represented by the same counsel in this case submitted three treating physician opinions that assessed limitations with regard to saying on task good work being absent from work and the need for a sit stand option and argued in smith as he has argued as mr human argues in this case l j was required to cite specific contrary evidence otherwise the l j would have to adopt those limitations into the residual functional capacity determination help me understand as a as a lay person remain on task and maintain regular attendance sure so it's our position your honor that with regard to the three opinions your your honour's referring to doctors stover dr quite cool and dr bennett i would first note that none of those physicians actually cited any findings or any evidence to support those limitations the burden is upon mr  moderate clinical findings but we also have contrary to what mr human asserts we have directly contrary medical opinion evidence on the specific issues of work pays sit stand option and absenteeism the crux of this issue gets to mr human desire to separate the psychiatric opinions from the medical opinions and folk and have the court only focus on the medical opinions however we submit that agency policy and really the practice of medicine doesn't allow that under agency policy pain is a symptom and it's functional link impact can be both mental and physical and to this point dr brown mr humans treating psychologist specifically noted the relationship between his back pain and his mental impairment and dr coital upon whom mr he mineralize also saw him for his psychiatric mental health complaints so and probably most importantly the very forms upon which mr heman relies specifically these off being off task at work that form itself states whether due to diminished concentrations so the form itself contemplates the relationship between the physical and mental components of pain well let's say in looking at dr f o b s assessment where do you see him taking into medical training before her psychiatric training first i'd note that in second she is a medical expert so she is subject to the regulations just as concentrated examiner dr murray gorno is subject to the regulations which means they assess  claimants ability to perform work on an ongoing basis which means eight hours a day for five days per week so in that sense dr of be as an expert is evaluating the whole person well a few things your honor from our view of the record piers that dr bennett only actually examined mr human on one occasion and on a subsequent at a subsequent visit it ministered an injection it would have it appears from  the record that most of the actual evaluations were done by his physicians assistant donahue there are other issues with dr bennett's opinion as well  importantly just a few months after issuing this or medical source opinion in january two thousand and fifteen and no cosigned by dr bennett dr bennett says the only limitations that mr human has are from heavy lifting bending and twisting and that he can continue to go to college so that stands in contrast to his may two thousand and fifteen medical source statement  further when we look at the examination findings in may two thousand and fourteen when dr bennett actually examined dr human excuse or mr human the findings don't support the medical dr bennett noted he didn't use assistive devices there was only moderate findings a negative straight leg raising test which speaks directly to low back pain and the neurological examination his physician said that he should alternate between sitting stand between every thirty minutes and every hour how is that in keeping with with the requirements of sedentary work which is at least as i understand it  requires a break every two hours or permits a break every two hours correct your honor so with regard to the need to change positions alleged by these three medical as she took mr him to medical history and accounted for his symptoms one of the things that mr hayman stated is that he was unable to stand or sit for more than thirty minutes and would have to lie down if he had to do more than that was well aware of this complaint of the allegation that he could not stand or sit for more than thirty minutes the need to change positions and in consideration of that and all the medical do examinations consultation examinations in a case like this when there's a rich history of worth peut problems why not why not have the kind of doctor your honor i can speak to why that didn't happen in this particular case i have personally had cases where examiners did have such specialties but i'm money able to tell you why that didn't happen in this case however i would note that you know doctor we're going to is an internal medicine physician so that would mean that she had extensive training in all body systems and including orthopedics not a specialist but nonetheless could treat and practically speaking an individual with orthopedic problems would start with their primary physician primary care physician and could be treated by the physician without seeing a specialist thank you thank you real briefly on on on smith we know to two cases flynn in the siena afterwards that came to opposite conclusions but we also know because this happened after our briefing came in forgive me very specifically on smith which is fact specific does not have the same facts as this does not have somebody who's gone through the surgery and it's gotten worse very specifically on smith the commissioner said this is worthy of being presidential and asked that it be published and that i can send it to the to the court but i assume that it's easy enough to find and the court very specifically said no publishing its case specific this is a different case different facts everything is different with respect to their argument on the psychologist actually say we're not going to publish because it's now they said we're not going to publish but clearly clearly i mean you can look at the briefing the briefing on it the commissioner said it should be published because of what's in there and we said  specific and they said we're not going to publish so i agree i may be a little bit too far with respect to psychiatry this there are a couple things yes pain can cause depression which could add to the off task in absenteeism we're not arguing that we're not we're seeing it's the pain from the condition of the teeth caused by it the fact that it goes back and forth no psychiatry just was asked to  on that you know if you ask me how much money is in my pocket i'm not going to tell you i've got a really nice purple tie the psychiatry were not asked to opine on physical they did not opine on physical that's the one good thing about smith is it does have that sentence in there that says the same thing so that and i forgot what else i was going to say so i think i'm done unless you have questions thank you thank you both for your arguments the final