next case on our calendar is first as commissioner number seventeen thirty six eighty four thank you case and if so if that's permissible under the substantial evidence standard so it's important to put this case in context because mr japan year during the relevant portions of this case was either over the age of fifty or over the age of fifty five therefore he was closely approaching advanced age or of advanced age and it in a finding that mr resulted in an entitlement the opinion evidence in this case involved opinions that were rendered by the administration's examiners stock to result in dr bernstein there was an opinion by dr rice her who is a but in reviewing the record last night there's a statement in the record a page seven hundred twelve by dr mogul who is the surgeon who performed bilateral knee replacement where he states quote i continue to feel he should be considered social security disability perhaps not the most artful statement but it's another statement that is in fact dr mo twenty eleven cleared mr trevanion to go back to work his medium work in the town of can lift according to mr trying years on statements that he can lift in carrying thirty pounds right that's correct and it seemed to me that what we were ending up talking about was whether even though he could not you could only do some things like twisting and bending and so on occasionally that you were looking for an explicit finding in the record that he could lift up to fifty pounds and that absent that he wouldn't be properly treated as able to do medium work and i am i right in that that's correct i'm looking for a specific opinion within the record by position that he can lift and carry up to the saw having a little trouble with that i mean i don't see it there but you know that maybe the light medium heavy he could go back to work and knowing it was medium work and that he would be called on to lift up to fifty occasionally whites on the combination of those two opinions sufficient or substantial evidence to support the  opinion let's let's take them separately your honor so dr writer's opinion that he can lift up to thirty pounds and lift and carry thirty pounds not lift up to thirty and carry a few he was talking about carrying regularly  has to be medical opinions within the record that the a l j can cite to in order to make a finding he can't cite the fact that no one saying he can't do it as substantial evidence or support of the ability to l understand but i didn't want to just confirm with you that there is no opinion to the contrary is no there's no opinion to the contrary there's no opinion that says you can't lift one hundred pounds on either your arm so at the risk of sounding blatantly obvious thirty pounds is not fifty pounds that represents an increase of sixty percent in the amount that one can lift that's i'm aware of how the numbers are but what i'm just looking at is he was saying he could do this left and kerry regularly and mottola permitted him after his second surgery to go back to his medium job at which he had to lift up to fifty pounds so yes at that point in time well he returned for what turned out to be a fairly short period of time he was released in april and by and several months later three months later he was no longer working for but he was he was dismissed yes but that wasn't necessarily a reflection of his ability or inability to do the job at the time he was dismissed for conduct related reasons generally under the regulations your honor when an individual is released to return to work there is what is called a trial work period or a period of time at the end of it that the individual has in order to see whether or not there can be a successful transition back to work is generally up to six months of an individual tries to work and within the six month period but but i'm saying here in this case i don't think you can rely on the absence of a six month period because the reason it didn't occur or was that he was dismissed for this job so we don't really have the basis for looking at how the six months went from a health perspective right now i understand that your honor it's also that is a period of time that's only it is subsequent to the alleged onset date but the but the court's adjudication is in two thousand and sixteen i believe so so you're looking at an extensive period of time but aren't we supposed to look at the an onset date which was coincident with the date of his terminations right two thousand thousand eleven he stopped working on that date there was no other substantial gainful activity subsequent to that but the court has to adjudicate an entire period of time so if the if the l j adopted the argument or the rationale that's being employed by the court it would apply to a very limited period of time but then subsequent to that your honor there are opinions rendered by medical professional  are we free to find a different onset date you know to say that as of two thousand and eleven we find substantial evidence supported the determination that he was able to do the thirty pounds and fifty pounds but we have doubts about some later period that we set a separate date at which we don't we think that record didn't support that he was still able to live fifty in practice your honor that happens all the time partially favorable decisions were in an  l j will assign an r f c that only applies to a certain period of time and then at a subsequent date assign a lower our of c and creating entitlement for us that isn't what happened here that isn't what happened here he adjudicated he found excuse me  found that he had a medium work a passerby for the entire period of time and your client would be entitled to reapply for the period subsequent right but he did not you did he did he was and he does your current application pending for like twenty fifteen and that was it when that was that takes place after only after the denial by the appeals council because when was that as i'm asking you i don't know off the top of my head when the denial was by the appeals  he's been on disability for to but roughly two years now yes or ok thanks so to return to my argument and as i said before thirty pounds is not fifty pounds or represents a substantial increase in the ability to lift and carry weight i said sixty percent are it's actually only forty percent but for those of us who spent most of our life in the gym lifting and carrying weights we know that the difference between thirty pounds and appropriate isn't necessarily what's required i think the appropriate result is to vacate the decision every man for a new hearing and that's what i think the appropriate result is and i don't think judge thomas retains the ability to do what he did which is to set an r f c which exceeds all of the art of sees assigned by the physicians that review this case i think what the law provides for under these circumstances based upon the substantial evidence review is that and to use a football analogy the doctor set the boundaries and the judge can come in anywhere within the boundaries so that in a case like this he could have said sedentary he could have said light you could say less than sedentary but the boundaries are set by the doctors and when the judge goes outside the boundaries and finds an r f c that exceeds all of the are of c s that have been  have clarification because then there would have been a medical opinion which would have substantiated and supported what the what your child was thought to be the retain residual functional capacity ok i think we have the argument then thank you so because he can't perform medium or talked to us directly about the part of media work that requires a demonstration that he can lift fifty pounds so i don't see anything in the record or on our i would like to note first there so security rowing eighty three ten which does note that being able to do frequent lifting or carrying of objects weighing up to twenty five pounds is more critical than being able to lift up to fifty pounds at a time that doesn't eliminate the fifty pound requirement from the definition of medium works what should we look to to who are we can as substantial evidence supporting his decision of course we can look into the abundance of evidence in this record here we can look to the fact that mr padna was performing his heavy job for years with the same impairments that he now argues are disabling during the relevant period we can look to a doctor we did osteoarthritis can increase in severity over time right correct but we do not see based on this record occasionally ten pounds frequently mean he has a decreasing capacity that's reflected in the record but we do have the opinion of dr reiner that it shows that mr trevanion can lift and carry up to thirty pounds which exceeds  requirement for medium work here it doesn't say that he can lift up to fifty and that's also part of the work definition right right but we still have those consistent clinical findings showing that he does have full strength here throughout the relevant period which supports the finding that when you say they're consistent findings that he can he has full strength or i can refer you to your transcript pages four sixty two five eleven five thirty three their doctor fifteenth two thousand and eleven through the ale days decision of november second two thousand and fifteen your colleague suggests that it might be appropriate if we aren't dissatisfied with some aspects of the record here remain and for reconsideration of whether a subdivision of the six year period at this six year eleven to twenty sixty five year period or six year period might be appropriate do you agree that that's a possible resolution i do not agree or i do not think a remain a different outcome here you have an abundance of evidence here you have his orthopedic surgeon saying he could return to his heavy job subsequent to his most recent knee surgery you have the consultation of examiner opinion dr reiner saying he can lift the thirty pounds what do we have a twenty fourteen and twenty fourteen we have dr buckley his internist and vising him to start a progressive walking program we also have mr penn you know telling his interests he can do most of his activities of daily living even with his alleged pain that's not meeting him work in either of those is equivalent to medium work the way i read the definition we also have mr trevanion is applying for unemployment benefits and on transcript page six thirty two and six thirty six he's telling dr buckley he just met with the labor board he hope feels they may vote in his favor at the end of august  this is the latest report from dr moco stating that he is doing fairly well able to do most of his activities and medication is controlling his pain again there's been no parson he's no reference to him doing doctor who performed his orthopedic surgeries say that he can work he can go back to those heavy park maintenance job was in two thousand and eleven again and twenty fourteen the soviet social security administration's own doctors saying he's able to lift twenty pounds occasionally and ten pounds frequently that strikes me is more consonant with light work or sedentary work but it is rebutted by mr chapin his own admission that he can lift and carry up to thirty sea and he looks at the entire record here these medical reports showing what concerns me is that your arguments he could work and i think it seems likely from this record that he could work but the finding that we're asked to examine is whether he could do medium work and by the social security administration to own regulations that requires a certain physical exertion capacity that's defined by weight and what i'm saying is the record fades on that score as the years pass sensed twenty eleven i'm looking at again august two thousand fifteen mr chapman here states that even without medication he is able to walk for an hour or two suggesting that with his prescriptions he could walk more than the two hours and again we have his own report he came up to thirty pounds of those state agency doctors opinions which are consistent what the walking and standing requirements for a medium residual gentleman has had for years where he was able to maintain his very heavy maintenance job he was able to perform that job on the same medications that he is currently on there is nothing through those records there is nothing here the medical reports consistently are showing that this gentleman is neurologically intact that he has gone do you agree or do you not have knowledge about mr trevanion currently having applied for disability  twenty fifteen or sixteen and being granted so i do have knowledge of that your honor he was granted benefits in two thousand and sixteen but it was for a different period of time and it's for a different impairment that actually has to pertain to he had a cervical condition looked like surgery and it also seemed to deal with a worsening of his mental conditions which is not at issue here ok is own treatment notes show that mr tapan year had a normal normal muscle strength that does not support his opinion of disability they had to also states that the record does not show support it didn't he mean the second circuit has found that l g is not required to identify evidence explicitly no i'm not asking to identify i'm asking him not to violate his own regulation which says don't give the treating physicians  commissioner if there had been up in opinion then the algae should have should have accorded it either partial weight or some weight but here because there is a statement from the doctor that alj is not obligated to credit or reject it in any matter by state on a doctor states that someone is disabled already controlling way but you also can't give it away we are talking about an opinion not a statement under the  that is the functional reach sections that stem from that diagnosis those coupled together are what form the medical opinion and here there was no medical opinion you just had a statement saying someone's disabled that is does the doctor can't determine disability the commissioner who determines disability here and there isn't you would say that's an administrative it's administrative opinion it's a ministry and a finding it's not a medical opinion that needs to be weighed under our opinion to someone's functional capacity someone's functional restrictions from the doctor's diagnosis it is apple isn't a statement an opinion or two different things so what's he supposed to do to make of a medical opinion is a state of musician that reflects judgments about the new trance of arity of an individual's impairment including symptoms diagnoses and prognosis and what the individual can still do despite his we review all the medical findings and other evidence to support a medical sources statement you have to say about a statement by a medical source that you are disabled or unable to work does not mean that we will determine that you are disabled exactly don't give it controlling w and again he was it was not he was under no further obligation here he pursuant to our regulations that was an opinion opinion that you are just able is not entitled to any more